CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Exhibit 10.8
ADOBE CONFIDENTIAL
POSTSCRIPT SUPPORT SOURCE
AND OBJECT CODE DISTRIBUTION
LICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
ELECTRONICS FOR IMAGING INCORPORATED
Dated as of September 12, 1995
TABLE OF CONTENTS
Page
RECITALS .................................................................. 1.
AGREEMENT ................................................................. 1.
1. DEFINITIONS .......................................................... 1.
1.1 "Adobe Deliverables" ............................................ 1.
1.2 "Adobe Screening Test Suite" .................................... 1.
1.3 "Adobe Software" ................................................ 1.
1.3.1 "Abode Source" ........................................ 1.
1.4 "Adobe Support Information" ..................................... 2.
1.5 "Adobe Trademarks" .............................................. 2.
1.6 "Bitmap Font" ................................................... 2.
1.7 "Confidentiality Agreement" ..................................... 2.
1.8 "Clone Product" ................................................. 2.
1.9 "Development Site" .............................................. 2.
1.10 "EFI Hardware Product" .......................................... 2.
1.11 "EFI Modifications" ............................................. 2.
1.12.1 "Major Revisions to EFI Standard Controller" .......... 2.
1.12.2 "Major Revisions to EFI Standard Controller" .......... 3.
1.13 "End User" ...................................................... 3.
1.14 "Error" ......................................................... 3.
1.15 "First Commercial Shipment" ..................................... 3.
1.16 "Font Programs" ................................................. 3.
1.16.1 "Initial Installation Font Programs" .................. 3.
1.16.2 "Additional Font Programs" ............................ 3.
1.16.3 "Other Font Programs" ................................. 3.
1.17 "Licensed Systems" .............................................. 3.
1.17.1 "Licensed System Appendix" ............................ 3.
1.18 "PostScript Language Specification" ............................. 4.
1.19 "PostScript Language Specification Addendum" .................... 4.
1.20 "PPD File" ...................................................... 4.
1.21 "Reference Port" ................................................ 4.
1.21.1 "Reference Port Support Source" ....................... 4.
1.21.2 "Reference Port Appendix" ............................. 4.
1.21.3 "Reference System" .................................... 4.
1.21.4 "Unmodified Core" ..................................... 4.
1.22 "Reproduction Site" ............................................. 5.
1.23 "Revised Software" .............................................. 5.
1.23.1 "Revised Support Software" ............................ 5.
1.23.2 "Revised Object" ...................................... 5.
1.24 "Subsidiary" .................................................... 5.
i.
TABLE OF CONTENTS
(continued)
Page
----
1.25 "Technical Coordinator" ......................................... 5.
1.26 "Typeface" ...................................................... 5.
1.27 "Typeface Trademarks" ........................................... 5.
1.28 "Update" ........................................................ 5.
1.29 "Upgrade" ....................................................... 6.
2. SCOPE OF EFI'S LICENSES .............................................. 6.
2.1 License to Use Reference Port Support Source and Adobe Support
Information ..................................................... 6.
2.2 License to Sublicense Certain Software .......................... 6.
2.2.1 Revised Object ........................................ 6.
2.2.2 Font Programs ......................................... 6.
2.3 PPD File License ................................................ 7.
2.4 PostScript Language Specification ............................... 7.
2.4.1 Xxxxxxx-Xxxxxx ........................................ 7.
2.4.2 License Grant ......................................... 7.
2.4.3 Right to Sublicense ................................... 8.
2.4.4 Proprietary Rights With Respect to PostScript Language
Specification ......................................... 8.
2.5 PostScript Language Specification Addendum License .............. 8.
2.6 Limitations on License to EFI ................................... 9.
2.6.1 No Right to Sublicense ................................ 9.
2.6.2 Changes to the Adobe Software ......................... 9.
2.6.3 EFI Modifications ..................................... 9.
2.7 End User License ................................................ 9.
2.8 No Other Rights ................................................. 9.
2.9 Subsidiaries and Contractors .................................... 10.
3. SCOPE OF ADOBE'S LICENSES ............................................ 10.
3.1 License to EFI Revised Support Software ......................... 10.
3.2 PPD File License ................................................ 10.
3.3 PostScript Language Specification Addendum ...................... 10.
4. REFERENCE PORT APPENDICES ............................................ 10.
4.1 Initial Adobe Reference Port Delivery ........................... 10.
4.2 Future Reference Ports .......................................... 10.
4.3 Technical Coordinators .......................................... 11.
5. LICENSED SYSTEM APPENDICES ........................................... 11.
ii.
TABLE OF CONTENTS
(continued)
Page
----
5.1 Future Licensed Systems ......................................... 11.
5.1.1 Revised Software for Major Revisions to EFI Standard
Controller ............................................ 11.
5.1.2 Revised Software for Minor Revisions to EFI Standard
Controller ............................................ 11.
5.1.3 EFI Responsibilities .................................. 11.
5.2 Technical Coordinators .......................................... 12.
5.3 Licensed System Appendices for Revised Software ................. 12.
5.3.1 PPD File .............................................. 12.
5.3.2 PostScript Language Specification Addendum ............ 12.
6. ACCEPTANCE ........................................................... 12.
6.1 Acceptance of Reference Ports ................................... 12.
6.2 Acceptance of Revised Software .................................. 13.
7. LOANED EQUIPMENT ..................................................... 13.
7.1 EFI Revised Software Versions ................................... 13.
7.2 Terms of Loan ................................................... 13.
7.3 Restrictions on Use ............................................. 14.
8. PROPRIETARY RIGHTS AND LEGENDS ....................................... 14.
8.1 Proprietary Notices ............................................. 14.
8.2 Restricted Rights ............................................... 14.
8.3 Foreign Government Agreements ................................... 15.
9. MARKETING AND LICENSE TO USE TRADEMARKS .............................. 15.
9.1 Marketing ....................................................... 15.
9.2 Trademark License ............................................... 15.
10. PAYMENTS ............................................................. 16.
10.1 Source Payments ................................................. 16.
10.2 Licensed System Payments ........................................ 16.
10.3 Font Program Royalties .......................................... 16.
10.5 Other Payments .................................................. 16.
10.6 Taxes ........................................................... 16.
10.7 Payment of Royalties ............................................ 17.
10.8 Right of Audit .................................................. 17.
10.9 When Royalties Earned ........................................... 17.
iii.
TABLE OF CONTENTS
(continued)
Page
----
11. PERFORMANCE WARRANTY ................................................. 18.
11.1 Reference Port Warranties ....................................... 18.
11.2 Update Warranties ............................................... 18.
11.3 Limitations on Warranties ....................................... 18.
12. TRAINING AND SUPPORT ................................................. 19.
12.1 Adobe Training .................................................. 19.
12.2 EFI Support ..................................................... 19.
13. PROPRIETARY RIGHTS INDEMNITY ......................................... 19.
13.1 By Adobe ........................................................ 19.
13.2 By EFI .......................................................... 20.
14. TERM AND CANCELLATION ................................................ 21.
14.1 Term ............................................................ 21.
14.2 Cancellation by Adobe for Cause ................................. 21.
14.3 Cancellation by EFI for Cause ................................... 21.
14.4 Termination by EFI for Convenience .............................. 21.
14.5 Bankruptcy ...................................................... 21.
14.6 Obligations on Cancellation, Termination or Expiration .......... 21.
14.6.1 Licenses Terminated ................................... 21.
14.6.2 Safeguarding of Proprietary Rights .................... 21.
14.6.3 Return or Destruction of Adobe Information ............ 21.
14.6.4 Payment ............................................... 22.
14.6.5 Continued Use by End Users ............................ 22.
14.6.6 Assignment on Default ................................. 22.
14.6.7 Support and Maintenance: No Right to Sublicense ....... 22.
14.6.8 Right to Sell-Off Inventory ........................... 22.
15. LIMITATION OF LIABILITY .............................................. 22.
15.1 Adobe ........................................................... 22.
15.2 EFI ............................................................. 22.
16. GENERAL .............................................................. 23.
16.1 Governing Law ................................................... 23.
16.2 Attorneys' Fees ................................................. 23.
16.3 Forum ........................................................... 23.
16.4 Notices ......................................................... 23.
16.5 Injunctive Relief ............................................... 23.
iv.
TABLE OF CONTENTS
(continued)
Page
----
16.6 No Agency ...................................................... 24.
16.7 Force Majeure .................................................. 24.
16.8 Waiver ......................................................... 24.
16.9 Severability ................................................... 24.
16.10 Headings ....................................................... 24.
16.11 No Patent License .............................................. 24.
16.11.1 Definitions ........................................... 24.
16.11.2 Adobe Patents ......................................... 24.
16.11.3 EFI Patents ........................................... 25.
16.12 Assignment ..................................................... 25.
16.13 Export ......................................................... 25.
16.14 Full Power ..................................................... 25.
16.15 Confidential Agreement ......................................... 25.
16.16 Counterparts ................................................... 25.
16.17 Entire Agreement ............................................... 25.
v.
EXHIBITS
Title Exhibit Paragraph References
Adobe Deliverables A 1.1
Confidentiality Agreements B 1.7, EXHIBIT J
Development and Reproduction Sites C 1.9, 1.22
Sample Format for Licensed System Appendix D 1.17.1, 5.1
Reference Port Training and Support E 1.21, 1.28, 5.1.3, 11.2, 12.1,
EXHIBIT H, EXHIBIT J
Sample Format for Reference Port Appendix F 1.21.2, 4.2
Minimum Terms of End User Agreements G 2.7
Payments H 4.1, 4.2, 10.1, 10.2,
EXHIBIT E
Revised Software Test Procedures I 5.1.1, 5.1.2, 5.3, 5.3.1, 6.2,
7.1, EXHIBIT E, EXHIBIT H
Secure Procedures for Handling Adobe
Support Information J 8, 14.6.2, EXHIBIT E
Use of Adobe Trademarks K 9.2
vi.
ADOBE SYSTEMS INCORPORATED
POSTSCRIPT SUPPORT SOURCE
AND OBJECT CODE DISTRIBUTION LICENSE AGREEMENT
This Agreement is between Adobe Systems Incorporated, a California
corporation having its principal place of business at 0000 Xxxxxxxxxx Xxxx, X.X.
Xxx 0000, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000 ("Adobe"), and Electronics for
Imaging, Inc., a Delaware corporation, having its principal place of business at
0000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("EFl"). This Agreement is
effective as of September 12, 1995 (the "Effective Date").
RECITALS
A. Adobe owns certain computer programs which are useful in controlling
raster devices including, but not limited to, CRT displays, dot-matrix printers,
and laser printers, known collectively as the PostScript software.
B. EFI has requested that Adobe license portions of the PostScript
software (in source code form as defined below) to EFI that EFI will be able to
adapt and develop such source code for use with Licensed Systems (as defined
below) specified in Licensed System Appendices attached to this Agreement and
distribute object code versions thereof in accordance with the terms and
conditions set forth in this Agreement.
AGREEMENT
1. DEFINITIONS. Capitalized terms shall have the meaning set forth below.
1.1 "Adobe Deliverables" means the deliverables set forth in Exhibit A
("Adobe Deliverables").
1.2 "Adobe Screening Test Suite" means the test programs, procedures
and accompanying documentation developed by Adobe, and subject to change by
Adobe in its sole discretion, to be used by EFl to test implementations of
Licensed Systems and Revised Object for conformity to the PostScript Language
Specification.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
1.3 "Adobe Software" means (a) all or any portion of the unmodified
computer programs, both in source and object code form, and compilations
thereof, as described in the applicable Reference Port Appendix provided by
Adobe to EFI and (b) any changes to such software which Adobe may supply to EFI.
1.3.1 "Adobe Source" means the source code of the Adobe
Software and any corresponding source documentation described in the applicable
Reference Port Appendix.
1.4 "Adobe Support Information" means any (a) Adobe Software, Font
Programs, Adobe Screening Test Suite, and other documentation and computer
recorded data related to any of the above, and (b) any other software and
accompanying documentation, including utility tools, which Adobe may supply to
EFI. Adobe Support Information shall not include any EFI Modifications made
pursuant to this Agreement.
1.5 "Adobe Trademarks" means (a) the registered trademarks "Adobe" and
"PostScript", (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.
1.6 "Bitmap Font" means the applicable digitally encoded machine
readable data in bitmap form for screen display having a resolution of less than
150 dots per inch for use with the associated Font Program. Bitmap Fonts shall
be made available in the plurality of sizes for single Typefaces deliverable by
Adobe to EFI when such Bitmap Fonts become generally available to Adobe for
distribution to its OEM licensees.
1.7 "Confidentiality Agreement" means individually and collectively the
agreements in writing, substantially in the form attached as Exhibit B-1
("Employee Nondisclosure Agreement"), Exhibit B-2 ("Contractor Agreement") and
Exhibit B-3 ("Notice Regarding Confidentiality").
1.8 "Clone Product" means a product having page description
capabilities that are substantially compatible with the PostScript language.
1.9 "Development Site" means a site specified in Exhibit C
("Development and Reproduction Sites") at which EFI may use the Adobe Support
Information, including the Reference Port Support Source.
1.10 "EFI Hardware Product" means a device consisting of a marking
engine or other output device and EFI-Standard Controller (if any) which
executes or operates with the Revised Object and which is described in a
Licensed System Appendix.
1.11 "EFI Modifications" means all modifications made by EFI to the
Adobe Source in creating Revised Software pursuant to this Agreement.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
1.12 "EFI Standard Controller" means a controller for color output
devices manufactured by or for EFI and distributed by EFI, consisting of (i) a
RIP processing system, which includes connectivity and I/O (Disk, Ethernet,
parallel, SCSI), CPU coprocessors, ASICs, DRAM and Video Bus, and (ii) a video
interface board, which provides the interface between the controller and the
print engine.
1.12.1 "Major Revisions to EFI Standard Controller" means
revisions to the RIP processing system, hardware core architecture changes, CPU
co-processor changes, Video Bus Changes and ASIC functionality changes.
1.12.2 "Minor Revisions to EFI Standard Controller" means (i)
revisions to the video controller for the purpose of adding new engines to those
supported by the RIP processing system, (ii) different DRAM configurations,
(iii) software updates that are not directly linked to any of the Adobe
Deliverables (e.g., new scan functionality, additional reporting capabilities,
updated/additional protocol stacks), and (iv) minor hardware revisions (e.g.,
faster CPUs, enlarged Cache).
1.13 "End User" means a third party using a Licensed System for its
ordinary and customary business or personal purposes, but not for redistribution
or resale.
1.14 "Error" means a defect in a Reference Port which causes the
Reference Port, when compiled and run in the Reference System, not to operate
substantially in accordance with the PostScript Language Specification.
1.15 "First Commercial Shipment" as to each Licensed System Appendix
means the earlier of (a) EFI's first internal use of a Licensed System described
in a Licensed System Appendix other than for development or testing, and (b)
shipment of such Licensed System to a third party.
1.16 "Font Programs" means the digitally encoded, machine readable
outline programs for the Typefaces identified as Initial Installation Font
Programs, Additional Font Programs (if any) and Other Font Programs (if any)
encoded in a special format.
1.16.1 "Initial Installation Font Programs" means the Font
Programs for the Roman Typefaces specified as Initial Installation Font Programs
in a Reference Port or Licensed System Appendix, bundled with the Adobe
Software, and shipped as a part of a Licensed System.
1.16.2 "Additional Font Programs" means the Font Programs for
any Roman Typefaces specified as Additional Font Programs in a Reference Port or
Licensed System Appendix, bundled with the Adobe Software, and shipped as a part
of a Licensed System.
1.16.3 "Other Font Programs" means the Font Programs (which
may include, but are not limited to, Font Programs for Japanese Typefaces) for
non-Roman-Typefaces
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
which are specified in a Reference Port or Licensed System Appendix, bundled
with the Adobe Software, and shipped as a part of, or for use with, a Licensed
System.
1.17 "Licensed System" means the collective term for a final product
comprising Revised Object, the EFI Hardware Product(s) (if any), and any Font
Programs, bundled as a single commercial product and described in a Licensed
System Appendix.
1.17.1 "Licensed System Appendix" means any Licensed System
Appendix added to this Agreement in a form similar to EXHIBIT D ("Sample Format
for Licensed System Appendix") hereto.
1.18 "PostScript Language Specification" means the PostScript Language
Reference Manual, Second Edition, as printed in English by Xxxxxxx-Xxxxxx,
current as of April 1991, and any Adobe Supplement thereto provided to EFI by
Adobe, but shall not include any PostScript Language Specification Addendum.
1.19 "PostScript Language Specification Addendum" means a supplement to
the PostScript Language Specification for each Licensed System to be written by
EFI that describes the features specific to a Licensed System and the means of
accessing those features via the Adobe Software. PostScript Language
Specification Addenda will be based on a template provided by Adobe, with
technical content approved by Adobe.
1.20 "PPD File" means a human readable, machine parseable, PostScript
printer description 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 (which specification is
available from Adobe and subject to change by Adobe, in its sole discretion,
from time to time).
1.21 "Reference Port" means a release of the Adobe Software, consisting
of source code and object code modules as defined in a Reference Port Appendix,
ported by Adobe to a controller platform and printer engine specified by Adobe,
from which EFI develops Licensed Systems. A "Reference Port" refers to the
Reference Port Support Source and the object code version thereof, the
Unmodified Core and any Update to a Reference Port described in Exhibit E
("Reference Port Training and Support"), which is provided to EFI pursuant to
this Agreement.
1.21.1 "Reference Port Support Source" means those portions of
the source code version of the Reference Port, supplied to EFI on agreed-upon
media, identified in a Reference Port Appendix as Adobe Reference Support
Source, and which may be modified to adapt the Reference Port for use as part of
Licensed Systems.
1.21.2 "Reference Port Appendix" means any Reference Port
Appendix added to this Agreement in a form similar to Exhibit F ("Sample Format
for Reference Port Appendix") hereto, pursuant to which Adobe delivers a
Reference Port to EFI, ported to a controller platform and printer engine
specified by Adobe, from which EFI will develop Licensed Systems pursuant to one
or more Licensed System Appendices.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
1.21.3 "Reference System" means a compiled Reference Port,
together with the controller and printer engine that the Reference Port
supports, which is identified in a Reference Port Appendix.
1.21.4 "Unmodified Core" means those portions of the Reference
Port which Adobe identifies in a Reference Port Appendix that it will supply on
agreed-upon media in object code form only, and which may be supplied in either
binary object or linkable object code form, as determined by Adobe.
1.22 "Reproduction Site" means the Site(s) designated in Exhibit C
("Development and Reproduction Sites") at which EFI can reproduce (or have
reproduced) the Revised Object and Font Programs.
1.23 "Revised Software" means collectively, the Revised Support
Software, Reference Port Support Source (if any), and Unmodified Core which is
intended to be implemented for use as part of a Licensed System. All versions of
the Revised Software shall be deemed to be derivative works based upon the Adobe
Software and shall be subject to all provisions of this Agreement applicable to
the Adobe Software.
1.23.1 "Revised Support Software" means the source and object
code versions of any portions of the Reference Port Support Source that are
modified by EFI to create a new version which is intended to be compatible with,
and used with, a Licensed System.
1.23.2 "Revised Object" means the machine readable object code
version of the Revised Software.
1.24 "Subsidiary" means any corporation, partnership or other entity as
to which EFI: (a) owns or controls, directly or indirectly, at least fifty
percent (50%) by nominal value or number of units of the outstanding stock or of
the outstanding stock conferring the right to vote at a general meeting, or (b)
has the right to elect a majority of the Board of Directors or its equivalent,
or (c) has the right, directly or indirectly, to appoint or remove the
management.
1.2.5 "Technical Coordinator" means a technically qualified person
identified by EFI or Adobe to serve as primary contact for information requests
by the other party, who, when so requested, shall use his or her best efforts to
respond promptly after receipt of such request.
1.26 "Typeface" means a human readable set of glyphs, including letters
of the alphabet, upper and/or lower case, the numerals 0-9 and additional
special characters and punctuation marks as may be offered by Adobe in
conjunction with such letters and numerals of one typeface design and identified
in a Reference Port or Licensed System Appendix. 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.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
1.27 "Typeface Trademarks" means the trademarks, if any, used by Adobe
to identify the Font Programs and Typefaces.
1.28 "Update" means updated versions of a Reference Port, in source
code form for Reference Port Support Source and in object code for Unmodified
Core, which include all changes, alterations, corrections and enhancements to
such Reference Port which Adobe makes generally available to OEM licensees
receiving Adobe Support (as defined in Exhibit E ("Reference Port Training and
Support")) for that particular Reference Port.
1.29 "Upgrade" means the installation of Revised Object and, if
required, Font Programs in a Licensed System which contains an earlier version
of the Revised Object and Font Programs for the purpose of updating, enhancing,
or extending the Licensed System.
2. SCOPE OF EFI'S LICENSES.
2.1 License to Use Reference Port Support Source and Adobe Support
Information. Subject to EFI's compliance with the terms of this Agreement, Adobe
hereby grants to EFI a non-exclusive, non-transferable license (except as
provided in PARAGRAPH 16.12 ("Assignment")) to use each version of the Reference
Port Support Source and Adobe Support Information solely at the Development Site
for the sole purpose of designing, developing, adapting, testing and maintaining
Revised Software which is (a) implemented as part of present or future Licensed
Systems set forth in Licensed System Appendices and (b) is in conformance with
the specifications set forth in the PostScript Language Specification.
2.2 License to Sublicense Certain Software.
2.2.1 Revised Object. EFI's right to distribute commercially
or use the Revised Object is contingent upon execution of a Licensed System
Appendix to this Agreement that authorizes such commercial distribution or
internal use. All such commercial distribution or use of Revised Object shall be
limited to versions in ROM, EPROM or PROM form, or encrypted versions
downloadable to RAM (which shall be encrypted in a manner approved by Adobe in
writing), as set forth in a Licensed System Appendix. Subject to the foregoing
and to EFI's compliance with the terms of this Agreement, Adobe hereby grants to
EFI a worldwide, non-exclusive, non-transferable (except as provided in
PARAGRAPH 16.12 ("Assignment")) license to use, reproduce (or have reproduced)
at the Development Site and Reproduction Site, sublicense and distribute
directly and indirectly, through EFI's usual distribution channels, each copy of
Revised Object only as a part of a Licensed System or as an Upgrade on the terms
set forth in this Agreement.
2.2.2 Font Programs. Subject to EFI's compliance with the
terms of this Agreement, Adobe hereby grants to EFI a worldwide, non-exclusive,
non-transferable (except as provided in PARAGRAPH 16.12 ("Assignment")) license,
(a) to reproduce (or have reproduced) the Font Programs set forth in each
Licensed System Appendix provided by Adobe at the Development Site and
Reproduction Site and to distribute the Font Programs, directly and
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
indirectly, through EFI's usual distribution channels, only as part of the
applicable Licensed System; (b) to sublicense the Font Programs to End Users for
the reproduction and display of Typefaces on the Licensed Systems; (c) to use
the Font Programs to reproduce and display the Typefaces on the Licensed Systems
for purposes of test, evaluation, demonstration or development of applications;
and (d) to use, and to sublicense each End User to use, the Typeface Trademarks
used by Adobe to identify the Font Programs. EFI's license under this paragraph
will terminate upon termination of the agreement between Adobe and the Typeface
Trademark owner, if any, pertaining to such Font Program, and Adobe shall have
the right at such time to substitute a Font Program for an equivalent Typeface.
(a) Initial Installation Font Programs. EFI agrees
that the Revised Object will contain, at a minimum, the Initial Installation
Font Programs.
(b) Bitmap Fonts. EFI agrees that the Bitmap Fonts
provided by Adobe will be distributed only in conjunction with the associated
Font Programs at a price not to exceed the direct and allocable costs associated
with the production of such Bitmap Fonts. EFI acknowledges that the Bitmap Fonts
will be available in a limited number of point sizes and may not be available at
all for some Font Programs. All of the terms and conditions applicable to the
Font Programs herein apply to the Bitmap Fonts. Notwithstanding the foregoing,
so long as the Bitmap Fonts are distributed in conjunction with the Font
Programs, no additional royalty is due Adobe under the terms of PARAGRAPH 10.3
("Font Program Royalties") for distribution of Bitmap Fonts.
2.3 PPD File License. Subject to EFI's compliance with the terms of
this Agreement, Adobe hereby grants to EFI a worldwide, non-exclusive,
non-transferable (except as provided in PARAGRAPH 16.12 ("Assignment")) license
to reproduce and distribute any PPD Files, and updates thereto, for Adobe
Revised Software contained in each Licensed System and the right to sublicense
all such licensed rights through multiple tiers of distribution.
2.4 PostScript Language Specification.
2.4.1 Xxxxxxx-Xxxxxx. Adobe has entered into a Publishing
Agreement ("Publishing Agreement") with the Xxxxxxx-Xxxxxx Publishing Company
Inc. ("AddisonWesley") whereby Xxxxxxx-Xxxxxx publishes the PostScript Language
Specification. The Publishing Agreement provides that Xxxxxxx-Xxxxxx will be
available to negotiate with OEM customers concerning publication of special
versions of the PostScript Language Specification for inclusion with shipments
of Licensed Systems.
2.4.2 License Grant. Notwithstanding the above, subject to
EFI's compliance with the terms of this Agreement, Adobe hereby grants EFI a
worldwide, non-exclusive, non-transferable (except as provided in PARAGRAPH
16.12 ("Assignment")) license (a) to translate the English version of the
PostScript Language Specification into a language other than English, in whole
or in part, and (b) to reproduce and distribute the PostScript Language
Specification and any EFI translations thereof, which may include supplemental
information regarding the EFI
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Hardware Product, solely in hard copy format to EFI's customers, provided that
such PostScript Language Specification shall not be made available for general
distribution or resale through the retail trade, either through EFI or EFI's
publisher and provided further that EFI can only provide two (2) copies of such
EFI produced PostScript Language Specification (the English version or any
EFI-translated version) for any one (1) Licensed System. Any such EFI
translation will be performed only by EFI's employees or Subsidiaries in
accordance with the terms of this Agreement. EFI agrees that no right is granted
herein to reproduce Xxxxxxx-Xxxxxx'x foreign language versions of the PostScript
Language Specification other than the English version.
2.4.3 Right to Sublicense. Adobe further grants EFI the right
to sublicense its OEM customers to reproduce, in whole in part, and distribute
the PostScript Language Specification solely in hard-copy format to their
customers in accordance with the same terms and conditions imposed on EFI in
this paragraph. Such EFI customers shall not have the right to modify the
PostScript Language Specification received from EFI.
2.4.4 Proprietary Rights With Respect to PostScript Language
Specification. EFI agrees that Adobe will own the original PostScript Language
Specification as included in any version or translation of the PostScript
Language Specification created by EFI and that EFI will take commercially
reasonable steps to assure that all right, title and interest to the PostScript
Language Specification (including the versions and translations created by EFI)
remain with Adobe. EFI's own version of the PostScript Language Specification is
a derivative work created from the PostScript Language Specification, and
reproduction and distribution by EFI of EFI's own version or translation of the
PostScript Language Specification shall be subject to the terms and conditions
herein, including but not limited to the prohibition against distribution or
resale through the retail trade described in PARAGRAPH 2.4.2 ("License Grant")
above. EFI's own translation or version of the PostScript Language Specification
shall be made faithfully and accurately, shall be of good literary quality, and
shall consist of the whole of the textual, pictorial and diagrammatic material
constituting the PostScript Language Specification, without alteration,
abridgment or supplement except as provided herein or with the express written
permission of Adobe. EFI grants Adobe permission to: (a) make any EFI
translations of the PostScript Language Specification public; (b) place Adobe's
name and copyright notice on any EFI translation of the PostScript Language
Specification; and (c) make any necessary modification or alteration to the EFI
translation of the PostScript Language Specification. Adobe reserves the right
to approve the final manuscript of EFI's (or its Subsidiaries') own version or
any translation before its publication provided that EFI gives Adobe thirty (30)
days prior written notice of the date on which it will deliver the final
manuscript to Adobe, Adobe shall review the manuscript within fourteen (14) days
of its submission to Adobe. Adobe's failure to provide EFI with notice of
disapproval of the final manuscript within such fourteen (14) day period shall
constitute approval for purposes of this paragraph. Nothing herein shall prevent
Adobe or any of its OEMs from creating their own derivative works or
translations of the PostScript Language Specification.
2.5 PostScript Language Specification Addendum License. Subject to
EFI's compliance with the terms of this Agreement, Adobe hereby grants to EFI a
worldwide, non-exclusive, non-transferable (except as provided in PARAGRAPH
16.12 ("Assignment")) license
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
to use the PostScript Language Specification Addendum template provided by Adobe
to create, reproduce and distribute (with technical content approved by Adobe
pursuant to PARAGRAPH 5.3.2 ("PostScript Language Specification Addendum"))
PostScript Language Specification Addenda for Licensed Systems.
2.6 Limitations on License to EFI.
2.6.1 No Right to Sublicense. Except as set forth in PARAGRAPH
2.2 ("License to Sublicense Certain Software"), PARAGRAPH 2.3 ("PPD File
License"), PARAGRAPH 2.4 ("PostScript Language Specification") and PARAGRAPH 2.5
("PostScript Language Specification Addendum License"), with respect to Revised
Object and Font Programs, EFI shall have no right to sublicense any rights to a
third party.
2.6.2 Changes to the Adobe Software.
(a) In view of the desire of EFI and Adobe to
establish and maintain an industry standard PostScript interpreter, EFI shall
not make, without the express written permission of Adobe, any changes or
additions to, enhancements in, or deletions from, the Adobe Software (including
Reference Port Support Source), if such changes or enhancements would in any way
(i) change the PostScript language imaging model, syntax, semantics, or
functionality of the PostScript language, or (ii) change or disable use of
Adobe's Type 1 font rendering code.
(b) EFI agrees not to distribute to third parties any
version of the Revised Object containing any symbol table information with
respect to external variables or procedure entry points.
2.6.3 EFI Modifications. EFI shall own the EFI Modifications,
provided that any Revised Object containing EFI Modifications shall be subject
to the terms and conditions of this Agreement.
2.7 End User License. EFI will take the same steps to protect Adobe's
proprietary rights in the Adobe Software and Font Programs which it takes to
protect its own software, but in no event will it use less than reasonable care
to protect Adobe's proprietary rights. Except as provided below, EFI shall
ensure that each copy of the Revised Object or any Font Programs distributed by
EFI will be accompanied by a copy of EFI's standard software license agreement.
The terms of such license will be drafted so as to apply to the Revised Object
and Font Programs. In addition, such license will include terms and conditions
substantially equivalent to those set forth in Exhibit G ("Minimum Terms of End
User Agreements") to this Agreement. Notwithstanding the foregoing, in the
United States and in other jurisdictions where an enforceable copyright covering
the Revised Object and Font Programs exists, the license specified above may be
a written agreement in the package containing the Revised Object and Font
Programs, or the user documentation for the Revised Object and Font Programs,
that is fully visible to the End User and that the End User accepts by opening
the package.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2.8 No Other Rights. EFI specifically acknowledges that, other than as
expressly set forth in PARAGRAPH 2.1 ("License to Use Reference Port Support
Source and Adobe Support Information") above, no -rights to the Reference Port
Support Source are granted to it.
2.9 Subsidiaries and Contractors. This Agreement applies to EFI and to
any Subsidiaries of EFI which agree with EFI in writing to be bound by the terms
and conditions imposed on EFI hereunder. Notwithstanding the foregoing, EFI
agrees to make all payments due Adobe under the terms of this Agreement. The
exercise of any right granted under this Agreement by any such Subsidiary (or
the contractor of EFI or such Subsidiary) is subject to EFI's guaranty of the
performance by such Subsidiary and contractors of all of EFI's obligations
hereunder.
3. SCOPE OF ADOBE'S LICENSES.
3.1 License to EFI Revised Support Software. EFI shall use best efforts
to provide to Adobe those portions of the source code of any Revised Software
which have been modified by EFI to correct Errors found in the Reference Port
Support Source supplied to EFI hereunder. EFI may, in its sole discretion,
provide to Adobe any other source code of any Revised Software. If, at any time,
EFI provides source code of any Revised Software to Adobe, EFI 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 versions thereof, and the right to sublicense all such licensed
rights through multiple tiers of distribution.
3.2 PPD File License. EFI hereby grants to Adobe a perpetual,
worldwide, royalty-free, fully paid-up license to use, modify, reproduce and
distribute any PPD Files and updates thereto which EFI creates for Revised
Software contained in each Licensed System, and the right to sublicense all such
licensed rights through multiple tiers of distribution, in order to facilitate
access to such files by End Users and software developers to enhance the use of
the Licensed Systems by such End Users and software developers.
3.3 PostScript Language Specification Addendum. EFI grants to Adobe a
perpetual, worldwide, royalty-free, fully paid license to use, modify,
reproduce, and distribute the PostScript Language Specification Addenda for
Revised Software, and the right to sublicense all such licensed rights through
multiple tiers of distribution.
4. REFERENCE PORT APPENDICES.
4.1 Initial Adobe Reference Port Delivery. Upon execution of this
Agreement and payment by EFI of the source license fee described in PARAGRAPH 1
of Exhibit H ("Payments"), and upon a mutually agreeable schedule, Adobe will
provide EFI with the Adobe Deliverables.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4.2 Future Reference Ports. Adobe will supply the Reference Port and
deliverables described in each Reference Port Appendix in a form similar to
Exhibit F ("Sample Format for Reference Port Appendix") in accordance with the
schedule set forth therein and EFI shall pay to Adobe fees in accordance with
EXHIBIT H ("Payments") for each such additional delivery of a Reference Port.
4.3 Technical Coordinators. EFI and Adobe agree to designate a
Technical Coordinator in each Reference Port Appendix.
5. LICENSED SYSTEM APPENDICES.
5.1 Future Licensed Systems. The initial version of the Revised
Software developed by EFI pursuant to this Agreement for each EFI Standard
Controller will be added by way of a Licensed System Appendix in a form similar
to Exhibit D ("Sample Format for Licensed System Appendix"). Each EFI Hardware
Product which uses that EFI Standard Controller shall be added by an amendment
to such Licensed System Appendix.
5.1.1 Revised Software for Major Revisions to EFI Standard
Controller. EFI shall notify Adobe in writing of its intention to develop a
Revised Software version for each new EFI Standard Controller or each Major
Revision to EFI Standard Controller at least four (4) months in advance of the
First Commercial Shipment of such Revised Software; provided, however, that
Adobe will, in good faith, approve exceptions to the four (4) month notice
period. Promptly following such notice, the parties will meet to negotiate and
sign a Licensed System Appendix for each new EFI Standard Controller upon
mutually acceptable terms. The Revised Software for each new EFI Standard
Controller or each Major Revision of EFI Standard Controller shall be tested in
accordance with PARAGRAPHS 1. 2. 3 and 4 of Exhibit I ("Revised Software Test
Procedures").
5.1.2 Revised Software for Minor Revisions to EFI Standard
Controller. EFI shall notify Adobe in writing of its intention to ship a Revised
Software version for each Minor Revision of an EFI Standard Controller which has
been tested and approved by Adobe in accordance with PARAGRAPH 5.1.1 ("Revised
Software for Major Revisions to EFI Standard Controller") at least two (2)
months in advance of First Commercial Shipment of such Revised Software;
provided, however, that Adobe will accept a less than two (2) month advance
notice in the case of minor bug fixes as long as the notice period is
reasonable. If EFI's intention is to include such modified EFI Standard
Controller in a new EFI Hardware Product, concurrent with such notice, EFI will
deliver a product description of the Licensed System to Adobe QA, from which a
test plan will be created by Adobe QA within one (1) week and submitted to EFI.
EFI shall test the Revised Software in accordance with PARAGRAPH 2 of Exhibit I
("Revised Software Test Procedures") and Adobe will have one (1) week to
evaluate the test results. If the test results for the Revised Software running
on the new EFI Hardware Product are acceptable, Adobe will provide certification
of the Licensed System and will add the new EFI Hardware Product to the list of
permitted output devices in the Licensed System Appendix for the
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
applicable EFI Standard Controller.
5.1.3 EFI Responsibilities. EFI shall be responsible for
modifying the Reference Port Support Source to create the Revised Software
versions pursuant to either PARAGRAPH 5.1.1 ("Revised Software for Major
Revisions to EFI Standard Controller") or PARAGRAPH 5.1.2 ("Revised Software for
Minor Revisions to EFI Standard Controller") to create the Revised Software
version, to the extent permitted by PARAGRAPH 2.1 ("License To Use Reference
Port Support Source and Adobe Support Information") above; compiling and linking
the foregoing to produce Revised Object fully adapted to Licensed Systems and
suitable for distribution to End Users; and promptly merging with the Revised
Software any Updates which it receives as a result of its decision to purchase
support services as described in Exhibit E ("Reference Port Training and
Support"). EFI may elect not to merge any such Update into the Revised Software
for a Licensed System that is undergoing development at the time of delivery of
such Update, provided Adobe is consulted and consents, such consent not to be
unreasonably withheld, to the decision to continue the development effort
without including the Update. Adobe shall have no responsibility in connection
with any such modifications, including the development and bundling of the PPD
Files with each Licensed System, except as expressly provided in a Reference
Port Appendix.
5.2 Technical Coordinators. EFI and Adobe agree to designate a
Technical Coordinator in each Licensed System Appendix.
5.3 Licensed System Appendices for Revised Software. EFI will promptly
provide Adobe with two (2) copies of the machine readable version of any Revised
Object and any updated versions thereof in a timely manner as the updated
versions become available, and at EFI's sole option, with two (2) copies of the
source code version of the Revised Software (collectively, the "EFI
Deliverables") for evaluation and testing in accordance with Exhibit I ("Revised
Software Test Procedures").
5.3.1 PPD File. EFI shall also create and deliver to Adobe one
(1) master copy of the PPD File for each Revised Object contained in a Licensed
System at the time EFI provides the Revised Object to Adobe for testing pursuant
to Exhibit I ("Revised Software Test Procedures") and any updated version
thereof in a timely manner following the availability of any updated version.
EFI shall include with each Licensed System a copy of the corresponding PPD
File.
5.3.2 PostScript Language Specification Addendum. EFI shall
provide Adobe with a draft version of a PostScript Language Specification
Addendum for Revised Software contained in a Licensed System prior to execution
of the applicable Licensed System Appendix and any updated versions in a timely
manner following the availability of any updated version. The contents of the
PostScript Language Specification Addendum and any updated versions shall be
reviewed and approved by Adobe for compliance with Adobe's PostScript language
standards before the PostScript Language Specification Addendum is distributed
with a Licensed System. Adobe's failure to provide EFI with notice of
disapproval of the PostScript Language
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Specification Addendum within fourteen (14) days after its submission to Adobe
shall constitute approval for purposes of this paragraph. EFI shall include with
each Licensed System a copy of the corresponding PostScript Language
Specification Addendum.
6. ACCEPTANCE.
6.1 Acceptance of Reference Ports. For each Reference Port, EFI shall
have forty-five (45) days (or such other time as may be specified in the
applicable Reference Port
Appendix) from the date on which Adobe meets the final delivery milestone, as
contained in the applicable Reference Port Appendix, to examine and test the
Reference Port to determine that the Reference Port, when compiled, will execute
as part of the appropriate Reference System or Licensed System in accordance
with the PostScript Language Specification and in accordance with any other
acceptance criteria in the appendix. Within such period EFI shall provide Adobe
with written acceptance or a statement of any Errors to be corrected. The
Reference Port will be deemed to have been accepted by EFI if Adobe does not
receive such written acceptance or statement of Errors within such forty-five
(45) day time period. Adobe shall use reasonable commercial efforts to correct
any such reproducible Errors and redeliver the Reference Port to EFI, and EFI
shall within fifteen (15) days of such redelivery provide Adobe with written
acceptance or a statement of Errors. Should the Reference Port not conform to
the PostScript Language Specification or other acceptance criteria, or in the
event Adobe is not able to deliver the Reference Port in accordance with the
milestone schedule set forth in the applicable appendix, EFI's sole and
exclusive remedy shall be to elect one of the following remedies by giving Adobe
notice thereof (including a statement of Errors where applicable) within fifteen
(15) days: (a) to extend the correction period for a mutually agreeable time,
(b) to revise the acceptance criteria in a mutually agreeable manner, or (c) to
terminate the applicable Reference Port Appendix and obtain a refund of one-half
of the fee or advance paid to Adobe for such Reference Port, provided that EFI
has returned all existing copies of the Reference Port and related documentation
and certified in writing that it has no right to use, market or distribute such
Reference Port (or any Adobe Revised Software based on such Reference Port).
6.2 Acceptance of Revised Software. EFI and Adobe will test each
Revised Software version in accordance with Exhibit I ("Revised Software Test
Procedures"). Upon successful completion of acceptance testing pursuant to
Exhibit I ("Revised Software Test Procedures"), EFI shall have the right to
distribute the Revised Object in accordance with the terms of this Agreement.
7. LOANED EQUIPMENT.
7.1 EFI Revised Software Versions. EFI shall loan Adobe all necessary
equipment as specified in the applicable Licensed System Appendix for any
Revised Software in order to permit Adobe to conduct adequate and thorough
testing of such EFI Deliverables in accordance with Exhibit I ("Revised Software
Test Procedures").
7.2 Terms of Loan. All equipment loaned by EFI to Adobe shall remain
the property
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
of EFI, shall be fully insured by Adobe, and shall be returned to EFI at its
request after termination of Adobe's development, warranty, and maintenance
activities hereunder. EFI shall pay shipping costs for delivery of such loaned
equipment to Adobe. Any loaned equipment shall be returned to EFI by Adobe,
shipping and insurance costs prepaid by EFI. While in the possession of Adobe,
the loaned equipment shall be maintained by EFI in good working order. During
the term of this Agreement for as long as Adobe is performing testing, warranty,
and maintenance services, if any, hereunder, EFI will continue to ensure that at
least one unit on loan to Adobe is the then current production unit which EFI is
actually shipping.
7.3 Restrictions on Use. Adobe agrees that it will not reverse engineer
any hardware or software provided by EFI in object code form pursuant to the
terms of this paragraph and that it shall not use any equipment provided by EFI
pursuant to this paragraph for any purpose other than testing, warranty and
maintenance as required under this Agreement. Adobe further agrees that it will
only provide access to software to its authorized employees and contractors with
a need to know and that it will not copy such software except for backup and
archival purposes. (The foregoing restriction shall not preclude legitimate
reverse engineering of such hardware or software which Adobe purchases
commercially.) The confidentiality provisions of this Agreement and the Mutual
Confidentiality Agreement entered into by Adobe and EFI on February 27, 1990
(the "Confidentiality Agreement") shall apply to any hardware or software
provided under this provision for so long as such hardware or software is not
yet commercially available.
8. PROPRIETARY RIGHTS AND LEGENDS. 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 Support Information. Except for the rights expressly
enumerated herein, EFI 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 Support Information.
EFI agrees to protect the Adobe Support Information in accordance with EXHIBIT J
("Secure Procedures for Handling Adobe Support Information"). EFI agrees that it
will not attempt to reverse engineer the Font Programs or any portions of the
Unmodified Core or other Adobe Support Information which is provided to EFI
solely in object code form.
8.1 Proprietary Notices. EFI agrees that as a condition of its rights
hereunder, each copy of the Adobe Software, Font Programs, PostScript Language
Specification (both the English version and any EFI-translated version, if any)
and any other Adobe Support Information shall contain the same proprietary
notices which appear on or in such Adobe Software, Font Programs, PostScript
Language Specification and any other Adobe Support Information delivered by
Adobe to EFI and as otherwise reasonably required by Adobe. More specifically,
EFI agrees that a valid Adobe copyright notice for the Adobe Software and Font
Programs will appear on the media.
8.2 Restricted Rights. EFI will (a) identify and license the Adobe
Software, Font Programs and related documentation in all proposals and
agreements with the United States Government or any contractor therefor; and (b)
legend or xxxx the Adobe Software, Font
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Programs and related documentation provided pursuant to any agreement with the
United States Government or any contractor therefor, as follows:
(i) For acquisition by or on behalf of civilian agencies, as
necessary to obtain protection substantially equivalent to that afforded to
restricted computer software and related documentation developed at a private
expense and which is existing computer software no part of which was developed
with government funds and provided with' Restricted Rights in accordance with
subparagraphs (a) through (d) of the "Commercial Computer Software - Restricted
Rights" clause at 48 C.F.R. 52.227-19 of the Federal Acquisition Regulations and
its successors;
(ii) For acquisition by or on behalf of units of the
Department of Defense ("DoD") as necessary to obtain protection substantially
equivalent to that afforded to commercial computer software and related
documentation developed at private expense and provided with Restricted Rights
as defined in DoD FAR Supplement 48 C.F.R. 252.227-7013(c)(l)(ii) and its
successors in effect for all solicitations and resulting contracts issued on or
after May 18, 1987.
8.3 Foreign Government Agreements. EFI will take all reasonable steps
in making proposal/and agreements with foreign governments other than the United
States which involve the Adobe Software, Font Programs, and related
documentation to ensure that Adobe's proprietary rights in such Adobe Software,
Font Programs and related documentation receive the maximum protection available
from such foreign government for commercial computer software and related
documentation developed at private expense.
9. MARKETING AND LICENSE TO USE TRADEMARKS.
9.1 Marketing. EFI shall use reasonable efforts, in connection with the
First Commercial Shipment of each Revised Object version, to (a) provide sales
and technical training to relevant EFI dealers, field sales representatives,
sales support engineers, systems engineers and customer support personnel; (b)
consult with Adobe in the development of applicable product brochures,
announcements to the trade press and other marketing materials related to
Licensed Systems; (c) permit Adobe participation in EFI's press conferences,
dealer roll-outs and similar activities involving Licensed Systems; and (d)
promote the Licensed Systems at trade shows at which other EFI products are
displayed. EFI shall use reasonable efforts, in connection with the First
Commercial Shipment of each Revised Object version, to (a) provide the contract
representative designated in the applicable Licensed System Appendix with a copy
of announcements and press releases pertaining to Licensed Systems prior to
their release to the public or the press, and (b) incorporate all changes that
Adobe may reasonably request to ensure correct Adobe Trademark usage and
accuracy of content, so long as Adobe has provided EFI with such reasonably
requested changes within five (5) business days following EFI's submission of
each such press release.
9.2 Trademark License. Subject to this Agreement and Exhibit K ("Use of
Adobe Trademarks") hereto, Adobe hereby grants to EFI a non-exclusive, limited
license to use the
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Adobe Trademarks and the Typeface Trademarks, on Licensed Systems and in EFI's
advertising and printed materials for the Revised Object, Font Programs and
Licensed Systems.
10. PAYMENTS.
10.1 Source Payments. EFI shall pay Adobe the fees and royalties set
forth in Exhibit H ("Payments") or in any Reference Port Appendix hereto.
10.2 Licensed System Payments. EFI shall pay to Adobe the development
fees, if any, and royalties as set forth in each Licensed System Appendix for
each Licensed System which is used internally or distributed by EFI.
Notwithstanding the foregoing, EFI shall have no obligation to pay royalties on
units of Licensed Systems which are used solely for development and/or testing
purposes. Adobe agrees that EFI shall be entitled to receive a volume-based
percentage discount to be applied against royalties owed to Adobe by EFI
hereunder for Licensed Systems and Font Programs distributed or used under a
Licensed System Appendix. Such volume discounts shall be as reflected in, and
shall be granted in accordance with the terms and conditions of Paragraph 17
("Qualifying for Royalty Discounts") of the Custom PostScript Interpreter OEM
License Agreement, effective March 1, 1991, between EFI and Adobe (the "CPSI
Agreement"). Quarterly revenue received by Adobe under this Agreement and the
CPSI Agreement shall be aggregated for the purpose of determining applicable
discount levels. In addition, Adobe agrees that the pricing for Licensed Systems
developed and distributed under this Agreement shall be consistent with the
pricing for the Licensed Systems (as defined in the CPSI Agreement) developed
and distributed under the CPSI Agreement.
10.3 Font Program Royalties. EFI shall also pay to Adobe the royalties
for the Roman Initial Installation Font Programs and Additional Font Programs
distributed with each Licensed System as set forth in the applicable Licensed
System Appendix hereto. Adobe agrees that the pricing and any applicable
discounts for the Font Programs distributed under this Agreement shall be
consistent with the pricing and discounts for the Coded Font Programs
distributed under the CPSI Agreement.
10.4 Upgrade Payments. EFI shall pay Adobe a royalty as set forth in
each Licensed System Appendix for each Upgrade for which EFI charges a fee in
excess of the costs of the media and handling. EFI shall not be obligated to pay
Adobe a royalty for any Upgrades for which EFI charges a fee which covers only
the costs of the media and handling. To qualify for the pricing set forth in
this paragraph, EFI will use commercially reasonable efforts to ensure that the
prior version of the Revised Object and Font Programs is destroyed.
10.5 Other Payments. Certain payments to Adobe, including but not
limited to advances against royalties, will be designated in the specific
Licensed System Appendix. Advances against royalties for a specified Licensed
System are recoupable only against royalties for that Licensed System during the
eighteen (18) month period following Adobe's delivery of the Final Release as
defined in the applicable Licensed System Appendix.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
10.6 Taxes. In addition to any other payments due under this Agreement,
EFI agrees to pay, and to indemnify and hold Adobe harmless from, any sales,
use, excise, import or export, value added or similar tax or duty not based on
Adobe's net income, including any penalties and interest, as well as any costs
associated with the collection or withholding thereof, and all governmental
permit fees, license fees and customs and similar fees levied upon the delivery
by Adobe of the Adobe Deliverables to EFI hereunder, which Adobe may incur in
respect of this Agreement. If a resale certificate or other certificate or
document of exemption is required in order to exempt all or any of the Adobe
Software or other deliverables from any such tax liability, EFI will promptly
furnish it to Adobe.
10.7 Payment of Royalties. All royalties due in accordance with the
terms of the Agreement shall be paid within forty-five (45) days after the end
of each calendar quarter. With each royalty payment EFI shall include a written
summary broken out by month of sale and country category (U.S., Canada, Europe,
Far East, Rest of World), of (a) the number and type of Licensed Systems sold or
used internally by EFI during the quarter; and (b) the number and type of
Additional Font Programs by Typeface bundled as a part of such Licensed Systems
and licensed to End Users or used internally by EFI during the quarter; and (c)
any other information which may be required to determine whether EFI is paying
the correct royalty amount hereunder. Licensed Systems that are returned for
which refunds are made by EFI shall be credited by EFI against royalties due to
Adobe for such Licensed Systems. Notwithstanding the foregoing, in the event
that EFI provides a partial refund of the price of a returned Licensed System,
EFI shall be entitled to obtain a partial credit against royalties due for such
Licensed System. At Adobe's request, EFI shall orally advise Adobe each month of
its estimate of the number of copies of the Licensed Systems and Additional Font
Programs shipped by EFI during the previous month and the royalties accrued
thereby. Such oral communication shall be subject to final adjustment by EFI at
the end of each accounting period.
10.8 Right of Audit. EFI shall maintain a complete, clear, accurate
record of: (a) the number and type of Licensed Systems shipped or used
internally by EFI, (b) a designation of which of the Additional Font Programs,
if any, were bundled as a part of such Licensed System and whether they were
licensed to End Users or used internally by EFI during the quarter, and (c) any
other information which may be required to determine whether EFI is paying the
correct royalty amount hereunder. To ensure compliance with the terms of this
Agreement, Adobe shall have the right to have an inspection and audit of all the
relevant accounting and sales books and records of EFI conducted by an
independent audit firm reasonably acceptable to both parties whose fee is paid
by Adobe, and shall be conducted during regular business hours at EFI's offices
and in such a manner as not to interfere with EFI's normal business activities.
In no event shall audits be made hereunder more frequently than once per year.
If such inspections should disclose any underreporting, EFI shall promptly pay
Adobe such amount, together with interest thereon at the rate of one and
one-half percent (1 1/2%) per month or the highest interest rate allowed by law,
whichever is lower from the date on which such amount became due.
10.9 When Royalties Earned. All royalties due hereunder shall be earned
on the date EFI ships a Licensed System to its customer, except for the shipment
of a Licensed System
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
between EFI and its Subsidiary or between Subsidiaries for resale. Such
royalties shall be earned when the Licensed System is first shipped to a
customer other than EFI or any Subsidiary.
11. PERFORMANCE WARRANTY.
11.1 Reference Port Warranties. Adobe warrants that for a period of
ninety (90) days from the date of delivery of a Reference Port to EFI
(hereinafter the "Warranty Period"), the Reference Port Support Source and
Unmodified Core contained in a Reference Port will compile, assemble, and link
as part of the Reference System to yield the corresponding object code version
of the Reference Port. Additionally, subject to any exceptions specified by
Adobe at the time of delivery, the object code version of the Reference Port
will execute substantially in accordance with the PostScript Language
Specification (excluding any portions of the PostScript Language Specification
not applicable to the specified Reference System) when used as part of the
Reference System specified in the Reference Port Appendix. If EFI reports to
Adobe a failure of such Reference Port to conform to the foregoing warranties
during the applicable Warranty Period, and provides such detail as Adobe may
require to permit Adobe to reproduce such failure, Adobe, at its expense, shall
use reasonable commercial efforts to modify or replace the Reference Port in a
timely manner to correct such failure.
11.2 Update Warranties. Adobe warrants that, for a period of ninety
(90) days from the date of delivery of an Update to EFI hereunder, subject to
EFI's purchase of support services as described in Exhibit E ("Reference Port
Training and Support") (the "Warranty Period"), the Reference Port Support
Source and Unmodified Core contained in an Update to a Reference Port will
compile, assemble, and link as part of the Reference System to yield the
corresponding object code version of the Update. Additionally, subject to any
exceptions specified by Adobe at the time of delivery, the object code version
of the Update will execute substantially in accordance with the PostScript
Language Specification (excluding any portions of the PostScript Language
Specification not applicable to the specified Reference System) as part of the
applicable Reference System. If EFI reports to Adobe a failure of such Update to
conform to the foregoing warranties during the applicable Warranty Period, and
provides such detail as Adobe may require to permit Adobe to reproduce such
failure, Adobe, at its expense, shall use reasonable commercial efforts to
modify or replace the Update in a timely manner to correct such failure.
11.3 Limitations on Warranties. EFI acknowledges that the Reference
Ports delivered by Adobe to EFI hereunder will require adaptation by EFI or
Adobe for compatibility with EFI platforms and configurations, which platforms
and configurations will generally be different from the development environment
and Reference System specified by Adobe. EFI acknowledges that the Adobe
Software is of such complexity that it may have inherent defects, and agrees
that Adobe makes no other warranty, either express or implied, as to any matter
whatsoever. THE FOREGOING STATES ADOBE'S SOLE AND EXCLUSIVE WARRANTY TO EFI
CONCERNING THE ADOBE SOFTWARE AN]) EFI'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF
WARRANTY. EXCEPT AS EXPRESSLY SET FORTH
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ABOVE, THE ADOBE SUPPORT INFORMATION AND ANY OTHER ADOBE DELIVERABLES ARE
PROVIDED STRICTLY "AS IS." EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS
AGREEMENT, ADOBE MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE ADOBE SUPPORT
INFORMATION OR ANY OTHER ADOBE DELIVERABLES, OR ANY MATTER WHATSOEVER. IN
PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY EXCLUDED. THIS IS A LIMITED WARRANTY
AND IS THE ONLY WARRANTY MADE BY ADOBE. EFI SHALL NOT HAVE THE RIGHT TO MAKE OR
PASS ON, AN]) SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER IT NOR
ANY OF ITS AGENTS OR EMPLOYEES SHALL MAKE OR PASS ON, ANY EXPRESS OR IMPLIED
WARRANTY OR REPRESENTATION ON BEHALF OF ADOBE TO ANY EFI CUSTOMER, END USER, OR
THIRD PARTY.
12. TRAINING AND SUPPORT.
12.1 Adobe Training. Adobe agrees to provide the training and technical
assistance described in Exhibit E ("Reference Port Training and Support") or in
any Reference Port or Licensed System Appendix.
12.2 EFI Support. EFI will have the sole responsibility for supporting
its End Users and will provide End Users with reasonable End User documentation,
warranty service, and telephone support for the use of Licensed Systems and Font
Programs consistent with good industry practice.
13. PROPRIETARY RIGHTS INDEMNITY.
13.1 By Adobe. Adobe agrees to indemnify and defend EFI from any costs,
damages, and reasonable attorneys' fees resulting from any claims by third
parties that the uses permitted hereunder of the Adobe Software infringe any
U.S. patents, U.S. copyrights, or U.S. trademarks or any patents, copyrights or
trademarks of Japan, Germany, France, Italy, The United Kingdom, Denmark,
Ireland, Greece, Spain, Portugal, Sweden, Norway, Finland, Switzerland,
Australia, Austria, Belgium, Canada, Luxembourg or The Netherlands (the "Foreign
Jurisdictions"), provided that EFI gives Adobe prompt written notice of any such
claim, tenders to Adobe the defense or settlement of such a claim at Adobe's
expense, and cooperates with Adobe, at Adobe's expense, in defending or settling
such claim. Adobe's aggregate cumulative liability for infringement of patents,
copyrights or trademarks of each Foreign Jurisdiction shall not exceed the
greater of (i) One Million Five Hundred Thousand Dollars ($1,500,000.00) less
any amounts previously paid or then currently payable by Adobe to EFI under this
clause (i) of this PARAGRAPH 13.1 for infringement of patents, copyrights, or
trademarks of any of the Foreign Jurisdictions, or (ii) the aggregate amount of
royalty payments actually received by Adobe from EFI for the Licensed Systems
distributed in such Foreign Jurisdiction up to a maximum of Five Million Dollars
($5,000,000.00).
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
If Adobe receives notice of an alleged infringement or if EFI's use of
the Adobe Software shall be prevented by permanent injunction, Adobe may, at its
sole option and expense, procure for EFI the right to continued use of the Adobe
Software as provided hereunder, modify the Adobe Software so that it is no
longer infringing, or replace the Adobe Software with computer software of equal
or superior functional capability. THE RIGHTS GRANTED TO EFI UNDER THIS
PARAGRAPH SHALL BE EFI'S SOLE AND EXCLUSIVE REMEDY AND ADOBE'S SOLE OBLIGATION
FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER
PROPRIETARY RIGHT. ADOBE WILL HAVE NO LIABILITY TO EFI IF ANY ALLEGED
INFRINGEMENT OR CLAIM OF INFRINGEMENT IS BASED UPON (A) THE MODIFICATION OF THE
ADOBE SOFTWARE BY EFI OR ANY THIRD PARTY, (B) USE OF THE ADOBE SOFTWARE IN
CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, OR SOFTWARE NOT DELIVERED
BY ADOBE (IF SUCH INFRINGEMENT OR CLAIM COULD HAVE BEEN AVOIDED BY THE USE OF
THE UNMODIFIED ADOBE SOFTWARE WITH OTHER EQUIPMENT, DEVICES OR SOFTWARE), OR (C)
THE USE OF ANY ADOBE SOFTWARE OTHER THAN AS PERMITTED UNDER THIS AGREEMENT OR IN
A MANNER FOR WHICH IT WAS NOT INTENDED OR USE OF OTHER THAN THE MOST CURRENT
RELEASE OF THE ADOBE SOFTWARE (IF SUCH CLAIM WOULD HAVE BEEN PREVENTED BY THE
USE OF SUCH RELEASE).
13.2 By EFI. EFI agrees to indemnify and defend Adobe from any costs,
damages, and reasonable attorneys' fees resulting from all claims by third
parties arising from the use, manufacture, and distribution of Licensed Systems
by EFI and its direct and indirect customers in any country, worldwide, provided
that Adobe gives EFI prompt written notice of any such claim, tenders to EFI the
defense or settlement of any such claim at EFI's expense, and cooperates with
EFI, at EFI's expense, in defending or settling such claim. EFI WILL HAVE NO
LIABILITY TO ADOBE WITH RESPECT TO ANY CLAIM BY THIRD PARTIES THAT THE USES
PERMITTED HEREUNDER OF THE ADOBE SOFTWARE INFRINGE ANY PATENTS, COPYRIGHTS OR
TRADEMARKS OF ANY COUNTRY SO LONG AS SUCH CLAIM OF INFRINGEMENT DOES NOT ARISE
FROM (A) THE MODIFICATION OF THE ADOBE SOFTWARE BY EFI OR ANY THIRD PARTY, (B)
USE OF THE ADOBE SOFTWARE IN CONNECTION OR IN COMBINATION WITH EQUIPMENT,
DEVICES, OR SOFTWARE NOT DELIVERED BY ADOBE (IF SUCH INFRINGEMENT OR CLAIM COULD
HAVE BEEN AVOIDED BY THE USE OF THE UNMODIFIED ADOBE SOFTWARE WITH OTHER
EQUIPMENT, DEVICES OR SOFTWARE), OR (C) THE USE OF ANY ADOBE SOFTWARE OTHER THAN
AS PERME[XXX UNDER THIS AGREEMENT OR IN A MANNER FOR WHICH IT WAS NOT INTENDED
OR USE OF OTHER THAN THE MOST CURRENT RELEASE OF THE ADOBE SOFTWARE (IF SUCH
CLAIM WOULD HAVE BEEN PREVENTED BY THE USE OF SUCH RELEASE).
14. TERM AND CANCELLATION.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
14.1 Term. The initial term of this Agreement is for five (5) years
from the Effective Date, unless this Agreement is terminated for cause. This
Agreement may be renewed annually on its anniversary date at the option of
either party (subject to the written consent of the other party), provided that
(a) EFI has made all the payments required by this Agreement, (b) there has been
no uncured breach of this Agreement, or any Reference Port or Licensed System
Appendix, and (c) the Revised Object is still supported by EFI for use as part
of Licensed Systems.
14.2 Cancellation by Adobe for Cause. This Agreement shall terminate in
the event of any material breach by EFI which continues after thirty (30) days
written notice of said breach (which notice shall, in reasonable detail, specify
the nature of the breach) by Adobe to EFI.
14.3 Cancellation by EFI for Cause. If any material breach under this
Agreement by Adobe continues after thirty (30) days written notice of said
breach (which notice shall, in reasonable detail, specify the nature of the
breach) by EFI to Adobe, EFI may seek any damages arising under this Agreement,
and (a) continue this Agreement in full force and effect, or (b) terminate this
Agreement on written notice to Adobe.
14.4 Termination by EFI for Convenience. This Agreement may be
terminated by EFI for its convenience upon thirty (30) days prior written notice
to Adobe.
14.5 Bankruptcy. In addition to any material breach of this Agreement,
the application for, or adjudication in, bankruptcy by EFI, the insolvency of
EFI, or the dissolution of EFI, shall terminate this Agreement.
14.6 Obligations on Cancellation, Termination or Expiration. Upon
cancellation, termination, or expiration of this Agreement:
14.6.1 Licenses Terminated. The licenses granted pursuant to
PARAGRAPH 2 ("Scope of EFI's Licenses") shall terminate immediately.
14.6.2 Safeguarding of Proprietary Rights. EFI shall continue
to be responsible for safeguarding the proprietary rights of Adobe and Adobe's
suppliers in accordance with PARAGRAPH 8 ("Proprietary Rights and Legends") and
Exhibit J ("Secure Procedures for Handling Adobe Support Information") of this
Agreement after such cancellation, termination, or expiration.
14.6.3 Return or Destruction of Adobe Information. EFI will
immediately discontinue use and distribution of, and return or destroy all
copies of, Adobe Support Information and other Adobe Deliverables in its
possession (including copies placed in any storage device under EFI's control).
Upon Adobe's request, EFI shall warrant in writing to Adobe its return or
destruction of all of Adobe's proprietary information within thirty (30) days of
cancellation, termination or expiration.
14.6.4 Payment. The payment date of all monies due Adobe shall
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
automatically be accelerated so that they shall become due and payable on the
effective date of termination, even if longer terms had been provided
previously.
14.6.5 Continued Use by End Users. End Users shall be
permitted the continued and uninterrupted use of the Revised Object and Font
Programs for the balance of the term of their End User agreements, as specified
in such agreements, provided that and so long as the End Users are not in
default of their End User agreements.
14.6.6 Assignment on Default. EFI's rights upon default of the
End Users relating to the Revised Object and Font Programs as specified in the
End User agreement shall automatically be assigned to Adobe.
14.6.7 Support and Maintenance: No Right to Sublicense.
Notwithstanding the foregoing, EFI shall have the right to retain five (5)
copies of the Revised Object and use such Revised Object to the extent required
for support and maintenance purposes but EFI shall have no right to sublicense
or otherwise distribute the Revised Object or Font Programs or any other rights
with respect to such software except as specifically set forth in this
paragraph.
14.6.8 Right to Sell-Off Inventory. In the event of
termination or expiration of this Agreement (except for termination by Adobe due
to a breach of this Agreement by EFI), EFI shall have six (6) months from the
effective date of termination to distribute its inventory of Licensed Systems
and Upgrades in existence at the time of such termination provided that EFI
continues to make all payments and provide all reports to Adobe in accordance
with PARAGRAPH 10 ("Payments") and to observe all other terms and conditions
imposed on EFI hereunder with respect to distribution of the Revised Object.
15. LIMITATION OF LIABILITY.
15.1 Adobe. ADOBE WILL NOT BE LIABLE TO EFI OR ANY OTHER PARTY FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. The foregoing limitation of
liability is independent of any exclusive remedies for breach of warranty set
forth in this Agreement.
15.2 EFI. EFI WILL NOT BE LIABLE TO ADOBE OR ANY OTHER PARTY FOR ANY
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS
AGREEMENT, EXCEPT FOR ANY BREACH OF PARAGRAPHS 2 ("SCOPE OF EFI'S LICENSES"), 8
("PROPRIETARY RIGHTS AND LEGENDS"), AND 9 ("MARKETING AND LICENSE TO USE
TRADEMARKS"). EFI'S LIABILITY TO ADOBE FOR DAMAGES CAUSED BY EFI'S BREACH OF THE
PROVISIONS OF THIS AGREEMENT SHALL NOT EXCEED TWENTY FIVE MILLION DOLLARS
($25,000,000) UNLESS SUCH BREACH RESULTS FROM INTENTIONAL OR GROSSLY NEGLIGENT
CONDUCT BY EFI, IN WHICH CASE EFI'S LIABIUTY SHALL NOT BE SUBJECT TO SUCH
LIMITATION. To establish "intentional conduct," Adobe must show that EFI's
breach of this Agreement was authorized by EFI management or reckless under the
circumstances. To establish "gross negligence," Adobe must show that there
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
was a substantial departure by EFI from the standard of conduct required by this
Agreement.
16. GENERAL.
16.1 Governing Law. This Agreement shall be governed in all respects by
the laws of the United States of America and the State of California as such
laws are applied to agreements entered into and to be performed entirely within
California between California residents. The parties agree that the United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement.
16.2 Attorneys' Fees. In the event any proceeding or lawsuit is brought
by Adobe, its suppliers or EFI in connection with this Agreement, the prevailing
party in such proceeding shall be entitled to receive its costs, expert witness
fees and reasonable attorneys' fees, including costs and fees on appeal.
16.3 Forum. All disputes arising under this Agreement may be brought in
Superior Court of the State of California in Santa Xxxxx County or the Federal
District Court of San Jose, California, as permitted by law. The Superior Court
of Santa Xxxxx County and the Federal District Court of San Xxxx shall each have
non-exclusive jurisdiction over disputes under this Agreement. EFI consents to
the personal jurisdiction of the above courts.
16.4 Notices. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to:
(i) the contract representative designated in the specific Licensed System
Appendix if the notice or report relates to one or more specific Licensed
Systems and (ii) a copy to the signatory of this Agreement at the address set
forth at the end of this Agreement or such other address as either party may
specify in writing. If the notice is to Adobe, a copy shall also be sent to the
attention of its General Counsel.
16.5 Injunctive Relief. It is understood and agreed that,
notwithstanding any other provisions of this Agreement, breach of the provisions
of this Agreement by EFI may cause Adobe irreparable damage for which recovery
of money damages would be inadequate, and that Adobe shall therefore be entitled
to seek timely injunctive relief to protect Adobe's rights under this Agreement
in addition to any and all remedies available at law.
16.6 No Agency. Nothing contained herein shall be construed as creating
any agency, partnership, or other form of joint enterprise between the parties.
16.7 Force Majeure. Neither party shall be liable hereunder by reason
of any failure or delay in the performance of its obligations hereunder (except
for the payment of money) on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, governmental action, labor
conditions, earthquakes, material shortages or any other cause which
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
is beyond the reasonable control of such party.
16.8 Waiver. The failure of either party to require performance by the
other party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either party of
a breach of any provision hereof be taken or held to be a waiver of the
provision itself.
16.9 Severability. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not render
this Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
16.10 Headings. The paragraph headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such paragraph or in any way affect this
Agreement.
16.11 No Patent License.
16.11.1 Definitions. As used herein, "Adobe Patent Right"
means any patent right arising under any United States or foreign patent now
owned by, or later issued or assigned to Adobe, applicable to the Adobe Software
or any other items licensed by Adobe to EFI hereunder. "EFI Patent Right" means
any patent right arising under any United States or foreign patent issued or
assigned to EFI and having a first effective filing date after an inventor
listed on such patent had access to the Adobe Support Information and in which
an inventor listed on such patent is (a) an employee or contractor of EFI who
has reviewed and used the Adobe Support Information and (b) the Adobe Support
Information contributed to and is a substantial part of the claimed invention.
16.11.2 Adobe Patents. Adobe covenants that, to the extent
that EFI, EFI's End Users and EFI's Subsidiaries, sublicensees, and other direct
and indirect customers of Licensed Systems (collectively "Customers") exercise
the rights expressly granted to EFI or which EFI is authorized to grant to
Customers herein, Adobe will not (a) assert any Adobe Patent Right against EFI
or its Customers, or (b) require any additional fee or royalty from EFI or its
Customers based upon any Adobe Patent Right.
16.11.3 EFI Patents. EFI agrees that it will not (a) assert
any EFI Patent Right against Adobe or against any Adobe sublicensees or
customers with respect to products containing software sold or licensed to them
by Adobe, or (b) require any fee or royalty from Adobe or such sublicensees or
customers based upon any EFI Patent Right.
This PARAGRAPH 16.11 shall survive termination or expiration of this
Agreement.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
16.12 Assignment. Neither this Agreement nor any rights or obligations
of EFI hereunder may be assigned by EFI in whole or in part without the prior
written approval of Adobe; provided that EFI may assign its rights and
obligations under this Agreement without Adobe's consent in the event of a
merger in which EFI is not the surviving corporation or a sale of all or
substantially all of the assets of EFI to any company that (i) is not an Adobe
competitor and (ii) has its primary place of business in a country in which at
least one other Adobe OEM has its principal place of business, and such OEM has
a license agreement with Adobe for support source code of the PostScript
software. Any assignment in breach of the foregoing shall be void and of no
effect. Adobe's rights and obligations, in whole or in part, under this
Agreement may be assigned by Adobe. Adobe may exercise full transfer and
assignment rights in any manner at Adobe's discretion and specifically may sell,
pledge, or otherwise transfer its right to receive royalties under this
Agreement.
16.13 Export. EFI acknowledges that the laws and regulations of the
United States restrict the export and re-export of commodities and technical
data of United States origin, including the Adobe Support Information. EFI
agrees that it will not export or re-export the Adobe Support Information in any
form, without the appropriate United States and foreign governmental licenses.
EFI agrees that its obligations pursuant to this paragraph shall survive and
continue after any termination or expiration of rights under this Agreement.
16.14 Full Power. Each party warrants that it has full power to enter
into and perform this Agreement, and the person signing this Agreement on each
party's behalf has been duly authorized and empowered to enter into this
Agreement. EFI further acknowledges that it has read this Agreement, understands
it and agrees to be bound by it.
16.15 Confidential Agreement. Neither party will disclose any terms or
the existence of this Agreement, except pursuant to a mutually agreeable press
release or as otherwise required by law.
16.16 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
16.17 Entire Agreement. This Agreement together with the exhibits
completely and exclusively states the agreement of the parties regarding its
subject matter. It supersedes, and its terms govern, all prior proposals,
agreements, or other communications between the parties, oral or written,
regarding such subject matter. This Agreement shall not be modified except by a
subsequently dated written amendment or appendix signed on behalf of Adobe and
EFI by their duly authorized representative and any provision or a purchase
order purporting to supplement or vary the provisions hereof shall be void.
Notwithstanding the foregoing, the Confidentiality Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this PostScript
Support Source and Object Code Distribution License Agreement to be executed by
their duly authorized representatives.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ADOBE: EFI
ADOBE SYSTEMS INCORPORATED ELECTRONICS FOR IMAGING, INC.
By: /s/ Xxxxxxx X. XxxXxxxxx By: /s/ Xxx Avida
Print Print
Name: Xxxxxxx X. XxxXxxxxx Name:Xxx Avida
Title: Senior Vice President Title: President and CEO
and General Manager
Date: 09/12/95 Date: 09/08/95
Address for Notice: Address for Notice:
0000 Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxxx
X.X. Xxx 0000 Xxx Xxxxx, XX 00000
Xxxxxxxx Xxxx, XX 00000-0000
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT A
ADOBE DELIVERABLES
(POSTSCRIPT SUPPORT SOURCE WITH OBJECT)
The Adobe Deliverables for the initial or any subsequent Reference Port
shall consist of: one (1) master copy of the Reference Port, Adobe Screening
Test Suite and the documentation of the Adobe Screening Test Suite, as described
on the Reference Port Appendix and one (1) master copy of the Reference Port in
object code-form suitable for execution on a Reference System, including the
appropriate controller and printer engine required to verify that the compiled
Object code version of the Reference Port executes as part of the Reference
System in accordance with the warranty provisions set forth in PARAGRAPH 11.1
("Reference Port Warranties") of the Agreement.
The Adobe Deliverables may also include Example Source, which are those
portions of the Adobe Software which are provided in source code form by Adobe
to EFI for the sole purpose of demonstrating an example of software development
that implements certain functions which EFI may wish to emulate in its own
implementation of a Licensed System. Example Source shall not be included
within, or as part of, the definition of a Reference Port for purposes of this
Agreement.
Adobe will provide the "page pipeline" portion of the Adobe Software in
source code form and any mutually agreeable changes to this code.
Adobe will also supply whatever utility tools it may deem are needed by
EFI to facilitate EFI's use of the Reference Port to develop a Licensed System.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT B-I
EMPLOYEE NONDISCLOSURE AGREEMENT
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ELECTRONICS FOR IMAGING, INC.
EMPLOYMENT, CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Electronics for Imaging, Inc., its
subsidiaries, affiliates, successors or assigns (together the "Company"), and in
consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by the Company, I agree to the
following:
1. At-Will Employment. I understand and acknowledge that my employment
with the Company is for an unspecified duration and constitutes an "at-will"
employment. I acknowledge that this employment relationship may be terminated at
any time, with or without cause at the option of either the Company or myself,
with or without notice.
2. Confidential Information.
(a) Company and Third Party Information. I agree that at all
times during the term of my employment and thereafter, to hold in strictest of
confidence, and not to use, except for the benefit of the Company, or to
disclose to any person, firm or corporation without written authorization of the
Board of Directors of the Company, any Confidential Information of the Company.
I understand that "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, information relating to products, services, software, research,
developments, technology, hardware configuration information, marketing,
finances or other business information disclosed to me by the Company either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. I recognize that the Company has received and in the future will
receive from third parties their confidential or proprietary information subject
to a duty on the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes, and I understand
that such information is also Confidential Information. I further understand
that Confidential Information does not include any of the foregoing items that
has become publicly known and made generally available through no wrongful act
of mine or of others who were under confidentiality obligations as to the item
or items involved.
(b) Former Employer Information. I agree that I will not, during
my employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or any other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3. Inventions.
(a) Inventions Retained and Licensed. I have attached hereto,
as Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets that were made to me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
that belong to me , that relate to the Company's proposed business, products or
research and development, and that are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into the Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and will have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license, with the
right to grant sublicenses, to make, have made, modify, use and sell such Prior
Invention as part of or in connection with such product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly
make full written disclosure to the Company, and will hold in trust for the sole
right and benefit of the Company, and hereby assign to the Company, or its
designee, all my right, title, and interest in and to any and all inventions,
original works of authorship, developments. concepts, improvements or trade
secrets, whether or not patentable or registrable under patent, copyright or
similar laws, that I may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived, developed or reduced to practice, during the
period of time I am in the employ of the Company (collectively referred to as
"Inventions"), except as provided in Section 3(e) below. I further acknowledge
that all original works of authorship that are made by me (solely or jointly
with others) within the scope of and during the period of my employment with the
Company and that are protectable by copyright are "works made for hire," as that
term is defined in the United States Copyright Act."
(c) Maintenance of Records. I agree to keep and maintain
adequate and current written records of all Inventions made by me (solely or
jointly with others) during the term of my employment with the Company. The
records will be in the form of notes, sketches, drawings. and any other format
that may be specified by the Company. The records will be available to and
remain the sole property of the Company at all times.
(d) Patent and Copyright Registrations. I agree to assist the
Company, or its designee, at the Company's expense, in every way to secure the
Company's rights in the Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto, in any and all
countries, including disclosing to the Company all pertinent information and
data with respect thereto, and executing all applications, specifications,
oaths, assignments and all other instruments that the Company shall deem
necessary in order to apply for and obtain such rights and in order to assign
and convey to the Company, its successors, assigns and nominees the sole and
exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or cause to be
executed, when it is in my power to do so, any such instrument or papers will
continue after the termination of this Agreement. If the Company is unable
because of my mental or physical incapacity or for any other reason to secure my
signature to apply for or to pursue any application for any United States or
foreign patents or copyright registrations covering Inventions or original works
of authorship assigned to the Company as above, then I hereby irrevocably
designate and appoint to the Company and its duly
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
(e) Exception to Assignments. I understand that the provisions
of this Agreement requiring assignment of Inventions to the Company do not apply
to any invention that qualifies fully under the provisions of the California
Labor Code Section 2870 (attached hereto as Exhibit B). I will advise the
Company promptly in writing of any inventions that I believe meet the criteria
in California Labor Code Section 2870 and that are not otherwise disclosed on
Exhibit A.
4. Conflicting Employment. I agree that, during the term of my
employment with the Company, I will not engage in any other employment,
occupation, consulting or other business activity directly related to the
business in which the Company is now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company.
5. Returning Company Documents. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports. proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns.
6. Solicitation of Employees. I agree that for a period of twelve (12)
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I will not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to solicit,
induce, recruit, encourage or take away employees of the Company, either for
myself or for any other person or entity.
7. Representations. I agree to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
8. Arbitration and Equitable Relief.
(a) Arbitration. Except as provided in Section 8(b) below, I
agree that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement will be
settled by arbitration to be held in Santa Xxxxx County, California, in
accordance with the rules then in affect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator will be final, conclusive
and binding on the parties to the arbitration. Judgement may be entered on the
arbitrator's decision in any court
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
having jurisdiction. The Company and I will pay one-half of the costs and
expenses of such arbitration, and each of us will separately pay our counsel
fees and expenses.
(b) Equitable Remedies. I agree that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 2, 3, and 5 herein. Accordingly, I agree that if
I breach any such Sections, the Company will have, in addition to any other
right or remedy available, the right to obtain an injunction from a court of
competent jurisdiction restraining such breach or threatened breach and to
specific performance of any such provisions of this Agreement. I further agree
that no bond or other security will be required in obtaining such equitable
relief and I hereby consent to the issuance of such injunction and to the
ordering of specific performance. I hereby further consent to the personal
jurisdiction of the state and federal courts located in California for any
lawsuit filed there against me by the Company arising from or relating to this
Agreement.
9. General Provisions
(a) Governing Law. This Agreement will be governed by the laws
of the State of California.
(b) Entire Agreement. This Agreement sets forth the entire
agreement and understanding between the Company and me relating to the subject
matter hereof and merges all prior discussions between us. No modification of or
amendment to this Agreement, or any waiver of any rights under this Agreement,
will be effective unless in writing and signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this
Agreement are deemed void by law, then the remaining provisions will continue in
full force and effect.
(d) Successors and Assigns. This Agreement will be binding
upon my heirs, executors, administrators and other legal representatives and
will be for the benefit of the Company, its successors, and its assigns.
Date: _________________________________________
Signature
_________________________________________
Name of Employee (typed or printed)
Witness
_________________________________________
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT A
LIST OF PRIOR INVENTIONS
AND WORKS OF AUTHORSHIP
Identifying Number
Title Date or Brief Description
________ No Inventions or Improvements
________ Additional Sheets Attached
Signature of Employee:
Print Name of Employee:
Date:
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT B
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under a subdivision (a), the provision is against the
public policy of this state and is unenforceable."
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT B-2
CONTRACTOR AGREEMENT
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ELECTRONICS FOR IMAGING, INC.
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of
the ________ day of _________________________, 19__ by and between
_______________________________ a ___________________________________
Corporation, (the "Company"), and ___________________________________
("Consultant"). The Company desires to retain Consultant as an independent
contractor to perform consulting services for the Company and Consultant is
willing to perform such services, on terms set forth more fully below. In
consideration of the mutual promises contained herein, the parties agree as
follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the services
described in Exhibit A ("Services"),
(b) The Company agrees to pay Consultant the compensation set
forth in Exhibit A for the performance of the Services.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions; processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing Finances or other business information disclosed by the Company either
directly or indirectly in writing, orally or by drawings or inspection of parts
or equipment.
(b) Consultant will not, during or subsequent to the term of
this Agreement, use the Company's Confidential Information for any purpose
whatsoever other than the performance of the Services on behalf of the Company
or disclose the Company's Confidential Information to any third party. and it is
understood that said Confidential Information shall remain the sole property of
the Company. Consultant further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential Information including,
but not limited to, having each employee of Consultant, if any, with access to
any Confidential Information. execute a nondisclosure agreement containing
provisions in the Company's favor substantially similar to Sections 2, 3 and 5
of this Agreement. Confidential Information does not include information which
(i) is know to Consultant at the time of disclosure to Consultant by the Company
as evidenced by written records of Consultant, (ii) has become publicly known
and made generally available through no wrongful act of Consultant, or (iii) has
been rightfully received by Consultant from a third party who is authorized to
make such disclosure. Without the Company's prior written approval, Consultant
will not directly or indirectly disclose to anyone
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
the existence of this Agreement or the fact that Consultant has this arrangement
with the Company.
(c) Consultant agrees that Consultant will not, during the
term of this Agreement, improperly use or disclose any proprietary information
or trade secrets of any former or current employer or other person or entity
with which Consultant has an agreement or duty to keep in confidence information
acquired by Consultant in confidence, if any, and that Consul cant will not
bring onto the premises of the Company any unpublished document or proprietary
information belonging to such employer, person or entity unless consented to in
writing by such employer, person or entity. Consultant will indemnify the
Company and hold it harmless from and against all claims, liabilities, damages
and expenses, including reasonable attorneys fees and costs of suit, arising out
of or in connection with any violation or claimed violation of a third party's
rights resulting in whole or in part from the Company's use of the work product
of Consultant under this Agreement.
(d) Consultant recognizes that the Company has received and in
the future will receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees that Consultant owes the Company and such third
parties, during the term of this Agreement and thereafter, a duty to hold all
such confidential or proprietary information in the strictest confidence and nor
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the Services for the Company consistent with the
Company's agreement with such third party.
(e) Upon the termination of this Agreement, or upon Company's
earlier request, Consultant will deliver to the Company all of the Company's
property or Confidential Information in tangible. form that Consultant may have
in Consultant's possession or control.
3. OWNERSHIP
(a) Consultant agrees that all copyrightable material, notes,
records, drawings, designs, inventions, improvements. developments, discoveries
and trade secrets (collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others, during the period of this
Agreement which relate in any manner to the business of the Company that
Consultant may be directed to undertake, investigate or experiment with, or
which Consultant may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder, are the sole property of the Company. Iii addition, any Inventions
which constitute copyrightable subject matter shall be considered "works made
for hire" as that term is defined in the United States Copyright Act. Consultant
Further agrees to assign (or muse to be assigned) and does hereby assign fully
to the Company all such Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto.
(b) Consultant agrees to assist Company, or its designee, at
the Company's expense, in every proper way to secure the Company's rights in the
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries, including the
disclosure to the Company- of all pertinent information and data with respect
thereto the execution of all applications, specifications, oaths, assignments
and all
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
other instruments which the Company shall deem necessary in order to apply for
and obtain such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause to be executed,
when it is in Consultant's power to do so, any such instrument or papers shall
continue after the termination of this Agreement.
(c) Consultant agrees that if in the course of performing the
Services, Consultant incorporates into any Invention developed hereunder any
invention, improvement, development. Concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest, the
Company is hereby granted and shall have a non-exclusive, royalty-free.
perpetual. irrevocable, worldwide license to make, have made, modify, use and
sell such item as part of or in connection with such Invention.
(d) Consultant agrees that if the Company is unable because of
Consultant's unavailability, dissolution, mental or physical incapacity, or for
any other reason, to secure Consultant's signature to apply for or to pursue any
application for any United States or foreign patents or mask work or copyright
registrations covering the Inventions assigned to the Company above, then
Consultant hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Consultant's agent and attorney in fact, to
act for and in Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work registrations
thereon with the same legal force and effect as if executed by Consultant.
4. REPORTS
Consultant agrees that it will from time to time during the
term of this Agreement or any execution thereof keep the Company advised as to
Consultant's progress in performing the Services hereunder and that Consultant
will, as requested by the Company, prepare written reports with respect thereto.
It is understood that the time required in the preparation of such written
reports shall be considered time devoted to the performance of Consultant's
Services.
5. CONFLICTING OBLIGATIONS
(a) Consultant certifies that Consultant has no outstanding
agreement or obligation that is in conflict with any of the provisions of this
Agreement. or that would preclude Consultant from complying with the provisions
hereof, and further certifies that Consultant will not enter into any such
conflicting Agreement during the term of this Agreement.
(b) In view of Consultant's access to the Company's trade
secrets and proprietary know-how, Consultant further agrees that Consultant will
not, without Company's prior written consent, design identical or substantially
similar designs as those developed under this Agreement for any third party
during the term of this Agreement and for a period of twelve (12) months after
chic termination of this Agreement.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
6. TERM AND TERMINATION
(a) This Agreement will commence on the date first written
above and will continue until final completion of the Services or termination as
provided below.
(b) The Company may terminate this Agreement upon giving two
(2) weeks prior written notice thereof to Consultant. Ally such notice shall be
addressed to Consultant at the address shown below or such other address as
either party may notify the other of and shall be deemed given upon delivery if
personally delivered, or forty-eight (48) hours after deposited in the United
States mail postage prepaid. registered or certified mail, return receipt
requested. The Company may terminate this Agreement immediately and without
prior notice if Consultant refuses to or is unable to perform the Services or is
in breach of any material provision of this Agreement.
(c) Upon such termination, all rights and duties of the
parties toward each other shall cease except:
(i) that the Company shall be obliged to pay, within
thirty (30) days of the effective date of termination. all amounts owing to
Consultant for unpaid Services and related expenses, if any, in accordance with
the provisions of Section 1 (Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership) and
8 (Independent Contractors) shall survive termination of this Agreement.
7. ASSIGNMENT
Neither this Agreement nor any right hereunder or interest
herein may be assigned or transferred by Consultant without the express written
consent of the Company.
8. INDEPENDENT CONTPACTOR
Nothing in this Agreement shall in any way be construed to
constitute Consultant as an agent, employee or representative of the Company.
but Consultant shall perform the Services hereunder as an independent
contractor. Consultant agrees to furnish (or reimburse the Company for) all
tools and materials necessary to accomplish this contract, and shall incur all
expenses associated with performance. except as expressly provided on Exhibit A
of this Agreement. Consultant acknowledges and agrees that Consultant is
obligated to report as income all compensation received by Consultant pursuant
to this Agreement. and Consultant agrees to and acknowledges the obligation to
pay all self-employment and other taxes thereon. Consultant further agrees to in
indemnify the Company and hold it harmless to the extent of any obligation
imposed on Company (i) to pay in withholding taxes or similar items or (ii)
resulting from Consultant's being determined not to be an independent
contractor.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9. ARBITRATION AND EQUITABLE RELIEF
(a) Except as provided iii Section 9 (b) below, the Company
and Consultant agree that any dispute or controversy arising out of or relating
to any interpretation, construction, performance or breach of this Agreement.
shall be settled by arbitration to be held in ________________________________
County. California, in accordance with the rules then in effect of the American
Arbitration Association. The arbitrator may grant injunctions or other relief in
such dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court of competent jurisdiction. The
Company and Consultant shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its respective counsel fees and
expenses.
(b) Consultant agrees that it would be impossible or
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 2 or 3 herein. Accordingly, Consultant agrees
that if Consultant breaches Section 2 or 3, the Company will have available, in
addition to any other right or remedy available, the right to obtain from any
court of competent jurisdiction, an injunction restraining such breach or
threatened breach and specific performance of any such provision. Consultant
further agrees that no bond or other security shall be required in obtaining
such provision. Consultant further agrees that no bond or other security shall
be required in obtaining such equitable relief and Consultant hereby consents to
the issuances of such injunction and to the ordering of such specific
performance.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
California.
11. ENTIRE AGREEMENT
This Agreement is the entire Agreement of the parties and
supersedes any prior Agreements between them with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CONSULTANT (Name of Company)
By: By:
Title:_________________________ Title: __________________________
Address: ______________________ Address: ________________________
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT A
SERVICES AND COMPENSATION
I. Contact Consultants principal Company contact:
Name:
Title:
2. Services Consultant will render to the Company the following Services:
3. Compensation
(a) The Company shall pay Consultant $ _______________ per
(b) The Company shall reimburse Consultant for all reasonable
travel and living expenses incurred by Consultant in
performing Services pursuant to this Agreement, provided
Consultant receives prior written consent from an authorized
agent of the Company prior to incurring such expenses.
(c) Consultant shall submit all statements for services and
expenses in prescribed by the Company and such statement shall
be approved by the contact listed above or by his or her
supervisor.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT C
Development and Reproduction Site
Electronics for Imaging, Inc.
0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Solectron Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Micron Custom Manufacturing Services, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000-0000
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT B-3
NOTICE REGARDING CONFIDENTIALITY
(POSTSCRIPT SUPPORT SOURCE)
1. Recipient has previously signed an agreement with EF[ pursuant to
which Recipient has agreed to maintain the confidentiality of confidential
information of EFI and its suppliers (the "Confidential Information") and to use
the Confidential Information solely for EFI'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 source 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 EFI.
2. This is to inform Recipient that the Adobe Support Information
cannot be used for any purpose except for the specific purposes which EFI 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 EFI informs
Recipient are authorized to receive such Adobe Support Information.
3. All materials including, without limitation, programs, recorded
information, documents, drawings, models, apparatus, sketches, designs, and
lists furnished to Recipient by EFI 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.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT C
DEVELOPMENT AND REPRODUCTION SITES
(POSTSCRIPT SUPPORT SOURCE WITH OBJECT)
EFI's use and storage of the Adobe Support Information shall be
restricted to the Following Development Site:
Name of Development Site: Address:
Electronics for Imaging, Inc 0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
EFI's reproduction of the Revised Object and Font Programs shall be restricted
to the following Reproduction Sites:
Name of Reproduction Sites: Address:
Solectron Corporation 000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Micron Custom Manufacturing Services, Inc. 0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000-0000
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT D
SAMPLE FORMAT FOR
LICENSED SYSTEM APPENDIX
To THE
ADOBE SYSTEMS INCORPORATED
POSTSCRIPT SUPPORT SOURCE AND OBJECT CODE DISTRLBTJTION
LICENSE AGREEMENT
Name of EFI:_____________
Name of Licensed System:
Effective Date:_________________
This Appendix sets forth additional and different terms and conditions
particular to the Licensed System described below and shall be incorporated by
reference into the PostScript Support Source and Object Code Distribution
License Agreement ("Agreement") between ________________ and Adobe Systems
Incorporated effective as of _______________ Such different or additional terms
are applicable only to the Licensed System described below and in no way alter
the terms and conditions applicable to other Licensed Systems incorporated into
the Agreement by addition of an appendix.
All the terms used in this Appendix shall retain the same meaning as
defined in the Agreement and such definitions are incorporated herein by
reference.
A. Licensed System:
1. Software: See PARAGRAPH 1.3 ("Adobe Software") of the
Agreement.
2. EFI Hardware:
B. Media for the Software as distributed by EFI:
C. Development Schedule and Testing Expectations:
1. Development Schedule: (This section should contain information
on Adobe hardware training including the location, number of
days, number of persons and scope of training.)
Milestone Description Schedule
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
D. Definition of Development Schedule Terms:
1. Alpha Release:
2. Beta Release:
3. Final Report:
4. Final Release:
E. Loaned Equipment:
F. Applicable Royalties:
1. Licensed System.
a. Advance Against Royalties.
b. Licensed System Royalties.
c. Font Programs.
X. Xxxxx Initial Installation Font Programs:
Identifying Trademark Typeface Trademark Owner
H. Additional Font Programs: List all Additional Font Programs which are
not set forth in the Roman Initial Installation Font Programs section
(Section G above) which will be bundled as a part of the Licensed
System, and describe the media for such Additional Font Programs.
Media:
Identifying Trademark Typeface Trademark Owner
I. Software Training: (Include the location, number of days, number of
persons and scope of training.
J. Designated Persons:
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
1. Technically qualified EFI representative who will respond to
information requests by Adobe:
(name and telephone number)
2. Technically qualified Adobe representative who will respond to
infonnation requests by EFI:
(name and telephone number)
3. EFI's designated representative for Continuing Support:
(name and telephone number)
4. Adobe Contract Representative:
(name and telephone number)
5. EFI Contract Representative:
(name and telephone number)
6. EFI financial contact for invoicing and payment:
(name, telephone number and fax number)
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
IN WITNESS WHEREOF, the parties have caused this Appendix No. by their
duly authorized representative.
ADOBE: EFI:
ADOBE SYSTEMS INCORPORATED
By: SAMPLE FORMAT/NOT FOR SIGNATURE
Print
Name:
Title:
Date:
Address for Notice:
0000 Xxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000-0000
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT E
REFERENCE PORT TRAINING AND SUPPORT
(POSTSCRIPT SUPPORT SOURCE WITH OBJECT)
1. Training.
a. Adobe agrees to permit a mutually agreeable number of
Authorized Employees and Authorized Contractors (as defined in PARAGRAPH 1 of
Exhibit J ("Secure Procedures for Handling Adobe Support Information")) of EFI
to attend an Adobe-provided Adobe Support Source training class for up to two
(2) days during the term of this Agreement at no additional charge (other than
the travel and living expenses described below).
b. If EFI and Adobe agree that Adobe should provide any
additional training, technical, or development assistance, EFI shall pay Adobe,
at Adobe's then current standard hourly rates, for time expended by Adobe
personnel in providing such training, technical, or development assistance. EFI
shall also bear all reasonable travel and living expenses of Adobe personnel who
provide services or training at an EFI site outside of the greater San Francisco
Bay Area.
2. Support.
a. Support Services. If EFI purchases the support services for
a particular Reference Port and pays the applicable Annual Fee, set forth in
Exhibit H ("Payments"), Adobe shall provide EFI with the Adobe Support (as
defined in PARAGRAPH 2(D) ("General Description of Adobe Support") below)
commencing upon the date of this Agreement or the applicable Reference Port
Appendix. Adobe Support shall include delivery to EFI of Updates of that
Reference Port.
b. Discontinuance. Adobe Support may, at Adobe's option, be
discontinued if EFI fails to pay in a timely manner any Annual Fee (as defined
in PARAGRAPH 2 of Exhibit H ("Payments")). The foregoing services, if
discontinued, may be reinstated by EFI, at any time during the term hereof, upon
EFI's payment to Adobe of an Annual Fee to be mutually agreed upon by the
parties for each intervening year for which such payment was not made. The same
provision for reinstatement shall apply in the event that EFI chooses to begin
purchasing Adobe Support in the second or any subsequent year following the year
in which EFI received the initial delivery of that particular Reference Port
from Adobe hereunder.
c. Modifications Resulting from Updates. Any modifications to
the Revised Support Software necessitated by the release of an Update of a
Reference Port to EFI hereunder shall be the sole responsibility of EFI, and
Adobe shall have no responsibility to assist EFI in such effort except to test
the modified Revised Object in accordance with the provisions of Exhibit I
("Revised Software Test Procedures").
d. General Description of Adobe Support. "Adobe Support" means
(i) the delivery of Updates of a Reference Port and (ii) the problem resolution
services described below with respect to Problems (as defined below) in the
Reference Port.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
e. Description of Problem Resolution Services Provided by
Adobe.
(1) Product Problem Reports (PPRs). EFI shall submit
to Adobe, by electronic mail, facsimile, or personal delivery, Product Problem
Reports ("PPR") in the form attached hereto as ATTACHMENT 1 TO Exhibit E
("Product Problem Report") to identify any Problems (as defined in PARAGRAPH
(E)2 ("Classification of Problems") below). Adobe may modify the form of PPR
from time to time and shall provide the new form to EFI.
(2) Classification of Problems. "Problem" means any
problem in the Reference Port which causes the Reference Port (including the
Unmodified Core) not to execute as part of the designated Reference System or
otherwise not to operate substantially in accordance with the PostScript
Language Specification or any other problem that EFI discovers in the Reference
Port or the Adobe Support Information. EFI will use its reasonable business
judgment to classify Problems (in accordance with the classifications set forth
below) in the PPR which EFI submits to Adobe.
(3) Xxxxx 0 Xxxxxxxx. Xxxxx 0 xx the classification
used in any PPR that demonstrates that (i) there is a Problem that causes the
Reference Port to fail to operate in a material manner or to produce
substantially incorrect results, and (ii) there is no workaround solution to the
Problem.
(4) Xxxxx 0 Xxxxxxxx. Xxxxx 0 xx the classification
used in any PPR that demonstrates that (i) there is a Problem that causes the
Reference Port to fail to operate in a material manner or to produce
substantially incorrect results, and (ii) there is a difficult or no workaround
solution to the Problem. Problems which are not demonstrable with a PostScript
Software-supporting application or driver (i.e., are reproducible only with
hand-generated PostScript software) are generally classified as Xxxxx 0 xxx xxx
Xxxxx 0 Xxxxxxxx Xxxxxxxx.
(5) Xxxxx 0 Xxxxxxxx. Xxxxx 2 is the classification
used in any PPR that exhibits a Problem which produces an inconvenient situation
in which the Reference Port is usable but does not provide a function in the
most convenient or expeditious manner; and the use or value of the Reference
Port suffers no significant impact. Level 2 Problems will generally be corrected
in a subsequent release of the Reference Port.
(6) Level 1 Severity. Level 1 is the classification
used in any PPR that exhibits a Problem which is minor or that is cosmetic in
nature. Generally, a Level 1 Problem is reasonably correctable by a PostScript
Language Specification change or by a subsequent release of the Reference Port.
(7) Level 0 Severity. This level will be used for new
features in a Reference Port (including Unmodified Core) requested by EFI.
f. Adobe's Response to PPRS. Within five (5) business days
after receipt by
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Adobe of a PPR involving a classification of a Level 3 or 4 Severity Problem or
ten (10) days after receipt of a PPR involving a classification of a Level 2, 1,
or 0 Severity Problem, Adobe shall acknowledge receipt of the PPR. If, in
Adobe's judgment, a PPR correctly identifies a Level 3 or 4 Severity Problem,
Adobe shall use reasonable commercial efforts to correct the identified Problem
and issue and deliver to EFI a release with such correction implemented, or take
such other corrective action as Adobe deems necessary to correct the Problem.
Adobe acknowledges that it shall give priority to and take corrective actions as
expeditiously as possible in connection with any Severity 3 or 4 Problem that
prevents EFI from shipping a Licensed System. Adobe may choose, in its sole
discretion, to implement a Level 0 request, but it is not required to do so.
g. Special Services. EFI may request that Adobe perform
special support services with respect to the Reference Port not covered by
services provided under Adobe Support as described herein. Adobe shall negotiate
in good faith with EFI with respect to any such request for special support
services and Adobe shall use reasonable commercial efforts to accommodate any
such request by EFI at Adobe's then current prices and upon terms and conditions
to be mutually agreed upon by the parties.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ATTACHMENT 1
TO
EXHIBIT E
PRODUCT PROBLEM REPORT
Title: (OEM internal tracking no.) - (short one line title of problem)
A single line, short description of the problem. This line may be
prefixed by an OEM's internal problem tracking code for cross reference
purposes.
Severity: (4.0)
OEM's proposed severity code. The severity code is based on a general
understanding of the nature and effect of the reported problem. Adobe
maintains the right to alter the severity code submitted by the OEM
after consulting with the OEM. The severity code is based on the
following general considerations:
4- most severe, no work-around, must be fixed
3- fairly severe, difficult to work-around, must be fixed
2- easy work-around, should be fixed in a subsequent release
1- cosmetic or minor problem 0- enhancement or request for
design change
Priority: (A-C)
OEM' s requested priority for resolving the report problem. This will
help Adobe's Codevelopment engineering support personal when
prioritizing the OEM's support needs. The priority code is based on the
following general considerations:
A- move to the top of the priority queue - may result in
priority B and C items being delayed
B- respond to when not working on priority A issues
C- as time permits
Date: (date report sent to Adobe)
Name: (OEM's project name)
The OEM's project name. This is most applicable if the OEM has,
multiple on-going projects with Adobe.
Version: (PostScript/documentation version, date)
The version of the PostScript interpreter in question. For
documentation, the document's date should also be included.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Contact: (contact OEM company/e-mail/phone number)
The primary contact for technical communications at the OEM's site.
Include the person's name and appropriate method of contact.
Description: (multi-line detailed description of the issue/problem)
A detailed description of the problem or issue. There is no set limit
to the length of the description which may include small sections of C
language code [or PostScript] language code. If it becomes necessary to
send multiple pages of C or PostScript language code, these should be
transferred electronically by UNIX UUCP file transfer and referenced in
the Files entry below.
To facilitate replication of the reported problem, the following
additional information should also be supplied:
Host computer,
Operating system, application, driver and their
respective version numbers,
Exact error message text,
Front panel configuration,
Communications protocol in use (i.e. serial, baud,
rate, etc.)
Files. (list of files that have been UUCP'D to Adobe)
List of files referenced in the above Description of problem section.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT F
SAMPLE FORMAT FOR REFERENCE PORT APPENDIX
(POSTSCRIPT SUPPORT SOURCE WITH OBJECT)
I. Description of Reference Port.
II. Description of Reference System.
m. Schedule for Delivery of Adobe Deliverables.
IV. Description of Adobe Screening Test Suite.
V. Technical Support.
VI. Font Programs.
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COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT G
ADOBE SYSTEMS INCORPORATED
MINIMUM TERMS OF END USER AGREEMENTS
(1) Licensor grants Licensee a non-exclusive sublicense to use the
PostScript"' software ("Software") and the digitally-encoded machine-readable
outline data ("Font Programs") encoded in the special format and in the
encrypted form ("Coded Font Programs") provided by Adobe Systems Incorporated
("Adobe") to Licensor to reproduce weights, styles, and versions of letters,
numerals, characters and symbols ("Typefaces") on a single output device; and to
use the trademarks used by Licensor to identify the Coded Font Programs and
Typefaces produced therefrom ("Trademarks"). Licensee may assign its rights
under this Agreement to a licensee of all of Licensee's right and interest to
such Software and Coded Font Programs provided Licensee transfers to licensee
all copies of such Software and Coded Font Programs and licensee agrees to be
bound by all of the terms and conditions of this Agreement. Trademarks, if used
by Licensee, shall be used in accordance with accepted trademark practice,
including identification of the trademark owner's name.
(2) Licensee agrees not to alter, reverse engineer or disassemble the
Software or Coded Font Programs. Licensee will not copy the Software or Coded
Font Programs except as necessary to use them on the single output device.
Licensee agrees that any such copies of the Software or Coded Font Programs
shall contain the same proprietary notices which appear on and in the Software
or Coded Font Programs.
(3) Except as stated above, this Agreement does not grant Licensee any
right (whether by license, ownership or otherwise) in or to intellectual
property with respect to the Software or Coded Font Programs.
(4) Licensee will not export or re-export the Software or Coded Font
Programs without the appropriate United States or foreign government licenses.
(5) Title to and ownership of the Software, Coded Font Programs and
documentation
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
and any reproductions thereof shall remain with Licensor and its suppliers.
(6) The Trademarks can only be used to identify printed output produced
by the Coded Font Programs. The Trademarks are the property of the Trademark
Owners identified herein.
(7) NEITHER LICENSOR NOR ANY OF ITS REPRESENTATIVES MAKES OR PASSES ON
TO LICENSEE OR OTHER THIRD PARTY, ANY WARRANTY OR REPRESENTATION ON BEHALF OF
LICENSOR'S THIRD PARTY SUPPLIERS.
(8) Licensee is hereby notified that Adobe Systems Incorporated, a
California corporation located at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000-0000 ("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, the Fonts, the Coded Font Programs, the 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.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT H
PAYMENTS
(POSTSCRIPT SUPPORT SOURCE)
1. Source License Fees. Adobe has waived the source license fee for the
Adobe Software provided hereunder. EFI shall pay Adobe a Reference Port fee of
[*] for the initial delivery of a Reference Port and accompanying Adobe
Deliverables due and payable upon execution of this Agreement. EFI shall pay a
source license fee of [*], or such other amount as specified in an applicable
Reference Port Appendix, for each additional Reference Port and accompanying
Adobe Deliverables from Adobe's then currently available Reference Port
offerings, and specified in a Reference Port Appendix attached hereto, due and
payable upon final execution of the Reference Port Appendix.
2. Reference Port Support Fees. Adobe has waived the "Annual Fee" for
Adobe support services, as described in Exhibit E ("Reference Port Training and
Support") hereto, for the initial Reference Port for the initial year. The
"Annual Fee" for subsequent years and Other Reference Ports during the term of
this Agreement shall be Adobe's then current annual fee per Reference Port and
shall be payable within thirty (30) days after the anniversary date of this
Agreement or the applicable Reference Port Appendix.
3. Per Copy License Fees for Use of Reference Port Support Source. EFI
will not be required to pay Adobe an additional per copy source license fee for
the right to use the Reference Port Support Source, provided that (i) use of the
Reference Port Support Source is limited to one (1) copy at one (1) Development
Site, (ii) EFI monitors the maximum number of copies of Reference Port Support
Source being used concurrently on multiple CPUs at each Development Site and
reports that number to Adobe upon request, and (iii) EFI maintains appropriate
records to permit Adobe to verify the accuracy of the number of multiple copies
in concurrent use at each Development Site reported to Adobe by EFI as required
under subitem (ii) above. For purposes of this paragraph, multiple users sharing
the use of a single copy of the Reference Port Support Source located on a
server with download capability to workstations, terminals, etc. constitutes a
single user. In the event that EFI's use of the Reference Port Support Source
exceeds the limitation, as specified above in this Paragraph, EFI shall report
such usage to Adobe hereunder and EFI shall pay Adobe a source license fee equal
to the actual amount of the license fee, payable by Adobe to its third party
supplier of software directly resulting from EFI's use of the Reference Port
Support Source.
4. Fees for Testing. EFI shall pay Adobe a retesting fee of [*] for
each instance of such resubmission and retesting of Revised Object pursuant to
Exhibit I ("Revised Software Test Procedures"). This process shall continue
until Adobe accepts the EFI Deliverables. Adobe shall charge EFI a testing fee
of [*] for each initial instance of resubmission and testing of the modified EFI
Deliverables pursuant to Exhibit I, PARAGRAPH 3(D) ("Revised Software Test
Procedures") following Adobe's initial acceptance of the final release version
of the Revised Object. EFI shall pay to Adobe an additional [*] per instance of
resubmission and retesting pursuant to EXHIBIT I, PARAGRAPH 3D ("Revised
Software Test Procedures"). Notwithstanding the above-stated requirements for
payment of testing fees, EFI shall not be charged for any instance of retesting
(whether of the initial final release version or any subsequent modified version
of the Revised Object) if retesting is made necessary by Adobe's change to the
Unmodified Core or to the Adobe Screening Test Suite. In addition, there will be
no charge for retesting if EFI can show that the EFI Deliverables when initially
tested by EFI satisfied the specified tests in the Adobe Screening Test Suite.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT I
REVISED SOFTWARE TEST PROCEDURES
(POSTSCRIPT SUPPORT SOURCE WITH OBJECT)
1. Adobe Screening Test Suite. Adobe shall provide EFI with a special
version, if any, of the Adobe Screening Test Suite to be utilized by EFI in
testing each Licensed System in accordance with the milestones set forth in the
applicable Licensed System Appendix.
2. EFI Testing. Prior to submission of each Revised Object to Adobe for
testing in accordance with the terms hereof, EFI shall verify that the Revised
Object satisfies all tests in the Adobe Screening Test Suite (or such subject
thereof as is specified in the applicable Licensed System Appendix). EFI shall
not make the First Commercial Shipment of a Licensed System, and any updated
version thereof until acceptance by Adobe of the EFI Deliverables. To permit
testing by Adobe of the final release version of the Revised Object, EFI shall,
at Adobe's option, in accordance with a mutually agreeable schedule to be
specified in the applicable Licensed System Appendix, provide Adobe with a
comprehensive report of the test results of such EFI testing which will include
all printer out-put and test results of the Adobe Screening Test Suite, output
samples thereof, and a preproduction release of the EFI Deliverables.
3. Adobe Testing.
a. Adobe shall be entitled to test the machine readable
version of the Revised Object for each Licensed System prior to First Commercial
Shipment and prior to First Commercial Shipment of a Licensed System containing
an engineering change order (ECO) or prior to effectiveness of a field change
order (FCO) affecting such Revised Object for a Licensed Systems previously
approved by Adobe.
b. Unless otherwise specified in the applicable Licensed
System Appendix, (i) EFI shall notify Adobe at least ninety (90) days in advance
of the estimated date of delivery of the EFI Deliverables to Adobe for testing
and (ii) EFI shall give Adobe at least thirty (30) days advance notice of its
anticipated delivery of the EFI Deliverables for testing, and Adobe shall have
thirty (30) days, or such other period as specified in an applicable Licensed
System Appendix, following EFI's timely delivery of the EFI Deliverables (and
all necessary Loaned Equipment) to do the following: (i) to test the quality of
the EFI Deliverables for conformity with
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
the Adobe Screening Test Suite developed by Adobe and, at Adobe's option, with
any other tests and procedures or any updated or enhanced versions of the Adobe
Screening Test Suite, to verify that EFI has not modified the Adobe Software
beyond the scope of modifications permitted by PARAGRAPH 2.1. ("License to Use
Reference Port Support Source and Adobe Support Information") of the Agreement,
and (ii) to verify that the overall quality of the EFI Deliverables complies
with the quality level for Adobe products, as reasonably determined by Adobe
from time to time.
c. Adobe shall conduct the initial testing of the final
release version of the Revised Object free of charge. Adobe shall inform EFI of
the results of such testing and, if Adobe is unable to accept the EFI Revised
Object, the basis for a finding of nonconformity or failure of the Revised
Object to conform to the criteria specified above. In the event that the EFI
Deliverables do not conform to the above criteria, EFI shall use reasonable
effort to promptly correct any nonconformity and resubmit the same for retesting
by Adobe. This process shall continue until Adobe accepts the EFI Deliverables.
d. Thereafter, if EFI modifies the EFI Deliverables, EFI shall
retest the EFI Deliverables pursuant to PARAGRAPH 2 ("EFI Testing") above and
resubmit the same as modified to Adobe for testing pursuant to this paragraph.
Notwithstanding the foregoing, Adobe shall not have the right to require
retesting of EFI Deliverables if EFI has not modified the Adobe Software.
e. Should the modified EFI Deliverables not conform to Adobe's
acceptance criteria, as described above, EFI shall use reasonable efforts to
promptly correct any nonconformity and resubmit the same for retesting by Adobe.
f. EFI shall, within a commercially reasonable time following
Adobe's acceptance of EFI Deliverables, update pre-production units shipped for
beta or evaluation purposes prior to First Commercial Shipment.
g. The parties intend that the Adobe testing procedure set
forth in this PARAGRAPH 3 be applicable to the Revised Object for the first
several Licensed Systems distributed by EFI under this Agreement. With
successful certification of these first several Licensed Systems, Adobe and EFI
will work together to develop QA test procedures that will streamline the QA
process. The goal of this streamlined QA process is for EFI to perform
self-testing of Licensed Systems, with Adobe auditing the EFI QA results, on
Licensed Systems that are created by modifications other than to the Adobe
Source.
4. Adobe Retesting Waived. Under certain circumstances such as, when
EFI makes modifications to the EFI Deliverables to correct a minor
non-conformance or to implement a minor feature enhancement for its customers,
Adobe may request and EFI shall provide Adobe with the comprehensive test
results from EFI's testing of the modified EFI Deliverables using the Adobe
Screening Test Suites. If Adobe determines from its review of the test results
that the modified EFI Deliverables meet all of the tests in the Adobe Screening
Test Suite and if it is able to verify to its satisfaction that the overall
quality of the modified EFI Deliverables complies
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
with Adobe's quality standards, Adobe may, in its sole discretion, waive the
requirement for its retesting of the EFI Deliverables. If requested by Adobe,
EFI shall supply Adobe with a declaration signed by an authorized representative
of EFI attesting to the accuracy of such test results supplied to Adobe
hereunder.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT J
SECURE PROCEDURES FOR HANDLING
ADOBE SUPPORT INFORMATION
(POSTSCRIPT SUPPORT SOURCE WITH OBJECT DISTRIBUTION)
1. Authorized Employees and Contractors. EFI 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 EFI's having
obtained authorization for use of such contractors in accordance with PARAGRAPH
2 ("Prior Approval of Contractors") below) who (i) require access thereto for a
purpose authorized by this Agreement, (ii) have signed the appropriate employee
or contractor agreement substantially in the form attached as Exhibit B-1
("Employee Nondisclosure Agreement") or EXHIBIT B-2 ("Contractor Agreement"), as
applicable and (iii) in the case of disclosure of Adobe Support Information,
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 (a) provisions substantially in accordance with the provisions set out
in Exhibit B-3 ("Notice Regarding Confidentiality") and (b) specific references
to the Employee Nondisclosure Agreement (Exhibit B-1) or the Contractor
Agreement (Exhibit B-2) as appropriate. EFI guarantees the compliance of all
such Authorized Employees and Authorized Contractors with their obligations
under such Confidentiality Agreements.
2. Prior Approval of Contractors. Notwithstanding the provisions in
this Exhibit J permitting Authorized Contractors to have access to Adobe Support
Information, EFI may not permit a contractor to come into contact with Adobe
Support Information, or engage in the development of Licensed System products
hereunder unless EFI 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 EFI 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 EFI 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. Notwithstanding the foregoing, Adobe shall be deemed to have
approved any contractor if it does not notify EFI of its rejection of such
contractor within seven (7) days after EFI notifies Adobe of its intent to
permit such contractor to obtain access to the Adobe Support Information.
3. Adobe Support Information.
a. EFI shall ensure that all Adobe Support Information
received from Adobe, and
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
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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.
b. EFI shall ensure that the same degree of care is used to
prevent the unauthorized use, dissemination, or publication of the Adobe Support
Information as EFI 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. EFI shall take prompt and appropriate action to prevent
unauthorized use or disclosure of Adobe Support Information.
c. Authorized Employees and Authorized Contractors shall be
instructed not to copy Adobe Support Information on their own, and not to
disclose Adobe Confidential Information to anyone not authorized to receive it.
d. Adobe Support Information shall be handled, used, and
stored solely at the Development Site.
4. Trade Secrets. Adobe Support Information in object code, source code
and hard copy printout form, the PostScript Screening Test Suites, the
techniques, ,algorithms, and processes contained in the Adobe Software, and Font
Programs 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 EFI only in accordance with the terms of this
Agreement. EFI will take all measures reasonably required to protect the
proprietary rights of Adobe and its suppliers in the Adobe Support Information
and will promptly notify Adobe of any lost or missing items and take all
reasonable steps to recover such items.
5. Marketing of Clone Products. If at any time during the term of this
Agreement EFI chooses to market a Clone Product, it may do so, provided however,
that Adobe may in its sole discretion, and without liability to EFI, terminate
its license grant pursuant to PARAGRAPH 2.1 ("License to Use Reference Port
Support Source and Adobe Support Information") of the Agreement and any
obligation to provide updates to such Reference Port Support Source pursuant to
Exhibit E ("Reference Port Training and Support") of the Agreement effective
sixty (60) days after notice of termination. In the event of such termination,
EFI shall return all copies and portions of copies of Reference Port Support
Source and all other Adobe Support Information, and an officer of EFI will
certify in writing to Adobe that it has no further right to use any such code or
information.
6. Clone Product Development.
a. The terms of PARAGRAPH 5 ("Marketing of Clone Products")
above do not preclude EFI from developing a Clone Product; however, if EFI
engages in such Clone Product development during the term of this Agreement, it
shall ensure that there is no sharing with such Clone Product development any of
the following: (i) design documents or schematics supplied by Adobe; (ii)
Reference Port Support Source or other information based upon or derived from
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
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the Reference Port Support Source; (iii) any other portions of Adobe Support
Information; or (iv) any facilities (including, but not limited to, disks,
computer systems, workstations and networks) or personnel with access to any of
(i)-(iii) above.
b. EFI shall ensure that, except as set forth in subparagraph
(c) below, 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,
including Reference Port Support Source, from being employed in any Clone
Product development (either internal or external) by or for EFI. "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. EFI shall further ensure that each such employee or contractor
shall, concurrent with the commencement of work on such Clone Product
development within EN, sign a written affirmation to EFI on a form provided by
EFI 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.
c. Adobe agrees that EFI will continue to engage in the
development of its own controller technology and the underlying environment for
the controller. In the event that EFI wishes to integrate a portion of the Adobe
Software into EFI's controller technology without subjecting the EFI employees
and contractors working on EFI's controller technology to the restriction
against Employment in any Clone Product Development set forth in subparagraph
(b) above, EFI may request Adobe to provide EFI with an opaque interface which
does not disclose any Adobe Support Information or, if the foregoing is not
possible, to provide EFI with a portion of the Adobe Support Information which
would enable EFI to accomplish the integration (such information will hereafter
be referred to as the "Adobe Interfaces"). In the event that Adobe, in its
discretion, provides one or more Adobe Interfaces to EFI, EFI's only obligation
with respect to the Adobe Interfaces shall be not to disclose it outside EFI.
The interfaces ("EFI Interfaces") developed by EN prior to the Effective Date
that do not contain any Adobe Support Information are listed on Attachment J-1
to this Exhibit J ("EFI Interfaces"), as may be amended pursuant to the
procedure set forth below. Upon request of EFI, the parties will amend
Attachment J-1 to include additional interfaces or new versions of EFI
Interfaces developed by EFI after the Effective date (which may be based on the
Adobe Interfaces); provided that Adobe shall have thirty (30) days from receipt
of EFI's request to approve such interfaces for inclusion on Attachment J-1,
which approval shall not be unreasonably withheld. Adobe agrees that Authorized
Employees or Authorized Contractors who had access solely to EFI Interfaces
shall not be subject to the restriction against Employment in any Clone Product
Development set forth in subparagraph (b) above.
d. The prohibition relating to Clone Product development set
forth in this PARAGRAPH 6 ("Clone Product Development") shall apply equally to
raster-output devices, to display or screen output devices, or to any other
peripheral devices.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
7. Certification. At Adobe's request, EFI will provide Adobe with
written certification by an officer of EFI of EFI's compliance with its
obligations under PARAGRAPH 1 ("Authorized Employees and Contractors") and
PARAGRAPH 6 ("Clone Product Development") above.
8. Proprietary Notices. In order to protect Adobe's copyright and other
ownership interests, EFI agrees that as a condition of its rights hereunder,
each copy of the Adobe Support Information, or any portion thereof or
documentation therefor, shall contain a valid copyright notice and any other
proprietary notices, including the copyright notices of Adobe's suppliers, which
appear on or in the Adobe Support Information and documentation delivered to EN
hereunder or as Adobe may require from time to time. Presence of a copyright
notice does not constitute an acknowledgment of publication.
9. Font Programs. EFI agrees to hold any unencrypted outline
information relating to the Font Programs in confidence, disclosing such
information only to Authorized Employees and Authorized Contractors having a
need to use such information as permitted by this Agreement, and to take all
reasonable precautions to prevent disclosure of such information to other
parties.
10. 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 EFI's records and premises to allow
Adobe to determine whether EFI is substantially in compliance with this Exhibit
J, and PARAGRAPH 8 ("Proprietary Rights and Legends") of the Agreement. In no
event shall audits be made hereunder more frequently than once per year. Such
access shall be (a) during EFI's regular business hours, (b) arranged so that,
to the extent possible, EFI'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 EFI is not substantially in compliance with its
obligations to protect Adobe's proprietary rights, EFI 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 which it may have under the
Agreement. EFI shall immediately correct any deficiencies discovered in the
course of the audit.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
ATTACHMENT J-1
EFI INTERFACES
The purpose of this Attachment J-1 is to specify an API for PostScript
interpreter setup, execution and page delivery mechanisms. The idea is to
clearly define the "current" interface used by EN in the Fiery SW. This will
allow EFI to continue to develop front-end SW (Communications, Networking,
Spooling, Job Dispatch) & Back-end (Page Delivery) without triggering the
application of the restriction against Employment in any Clone Product
Development set forth in PARAGRAPH 6(B) of EXHIBIT J.
Interpreter Setup & Execution
For simplicity EFI would like to maintain a "CPSI like" wrapper external to the
clean room. EN would leave the CPSI computational model as is:
CPSIlnitialize(init)
CPSStartlnterpreter( configuration record, &interpreter)
foreach (job) {
foreach(buffer in job)
CPSlExecutePostScript{ interpreter, Buffer, Length);
}
CPSIEndOfFile(Interpreter);
}
CPSlStoplnterpreter(Interpreter);
CPSIFinalizeO;
Data required for initialization of the Interpreter is available in the
configuration record and includes all machine attributes (such as resolutions,
Color Spaces, Engine capabilities etc.).
Additional calls supported are:
o CPSIInterrupt(Lnterpreter) - Invoking the Interrupt Error.
o CPSlTimeout(Interpreter) - Invoking the Timeout Error.
o CPSIGetParameter (Interpreter, +setname, +parameter)
Retrieves current value of the specified parameter from "system" or
"user" parameter sets.
The CPSI model of call-back functions would be maintained as well:
o CPSIOutput(Interpreter, *Buffer, Length, *handle) - to transfer output from
%stdout
o CPSIErrorlnterpreter, *Buffer, Length, *handle) - to transfer output from
%stderr
o CPSISetPageDevice
o CPSIGetTrayDetails
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o CPSIGetConfirmation
o CPSIInitRaster
o CPSIExtemalCommand
o CPSIProgress
o CPSIRender
For a complete description of the CPSI interfaces please refer to the
"Configurable PostScript Interpreter Functional Specifications" Version 2013.
Page Delivery Interface
The main interface for the page delivery mechanism is the CPSIRender callback.
The purpose of this call in EFI's setup is to deliver a page (or a band) to a
pipeline mechanism which will send the data to the marking head. Upon completing
the rendering of a band (or frame) the PostScript co-development integration
team will accompany each page with a "Page Dictionary".
The page dictionary is read only for the video interface. This dictionary will
be used by the video driver to set-up various engine parameter and complete the
print job.
A dictionary is defined as keyword/value pair. All keyword/value pairs are
stored as ASCII text or Strings. A partial list of keys in the page dictionary
includes:
ManualFeed Yes/No
ColorModel DeviceGray/DeviceRGB/DeviceCMYK
BitesPerPixel 1/8
BufferSize Unsigned long
BufferAddress Unsigned long
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AMENDED.
EXHIBIT K
USE OF ADOBE TRADEMARKS
1. Ownership of Trademarks. EFI acknowledges the ownership of the Adobe
Trademarks in Adobe and the ownership of the Typeface Trademarks in the entities
identified as "Trademark Owner" in a Reference Port or Licensed System Appendix
hereto. Adobe and such Typeface Trademark owners are referred to as the
"Trademark Owners". EFI agrees that it will do nothing inconsistent with such
ownership and that all use of the Adobe Trademarks by EFI shall inure to the
benefit of and be on behalf of Adobe. EFI acknowledges that EFI's utilization of
the Trademarks will not create any right, title or interest in or to such
trademarks. EFI 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. EFI agrees that it
will notify or require notification of sublicensees who receive Font Programs
that (i) Typeface Trademarks can only be used to identify printed output
produced by the Font Programs, and (ii) the Typeface Trademarks are the property
of the Trademark Owners. EFI will maintain a high quality standard in producing
copies of Font Programs and Typefaces. At the request of Adobe, EFI must supply
samples of any Typeface identified by a Typeface Trademark.
2. Quality Standards. Adobe shall review and approve or disapprove in
writing the quality of the Revised Object, Font Programs, and EFI's
documentation relating to the Revised Object and Font Program packages and the
use of the Trademarks on such products and authorize the commencement of
demonstration, commercial distribution and marketing of the Revised Object or
Font Programs. At least thirty (30) days prior to the date scheduled by EFI for
commencing such demonstration, commercial distribution and marketing, directly
or indirectly to End Users, EFI shall submit to Adobe for its approval,
sufficient samples of the Revised Object, EN's documentation and Font Programs
together with or including the containers, packages, cartons, wrappers and the
like. Unless otherwise agreed in writing by Adobe, EFI shall not make any change
in such products or their containers, packages, cartons, wrappers or the like
from that approved by Adobe. EFI agrees, at any time as requested by Adobe to
provide Adobe with a reasonable number of the samples of the packages of such
products and use of the Trademarks to allow Adobe to review the quality thereof.
Where Trademarks are used in connection with the execution of any software on a
computer system, EFI agrees to provide Adobe with access to such software and
computer system, and reasonable assistance in the operation of same, to
facilitate Adobe's review. If, at any time, any sample is disapproved by Adobe,
Adobe shall so advise EFI and, upon EFI's receipt of such notice by any means,
EFI shall have sixty (60) days to improve the quality to the standard previously
approved by Adobe. EFI shall comply with all applicable laws and regulations and
obtain all appropriate government approvals pertaining to the sublicensing,
transfer and advertising of the Revised Object and Font Programs.
3. Infringement Proceeding. EFI agrees to notify Adobe of any
unauthorized use or
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the Trademarks by others promptly as it comes to EFI's attention. Adobe shall
have the sole right and discretion to bring infringement or unfair competition
proceedings involving the Trademarks.
4. EFI's Use of Trademarks. EFI agrees that it will permanently include
the Adobe Trademarks on all copies of the Revised Object and in any advertising
or printed materials concerning the Revised Object and that it will use the
applicable Trademarks on all copies, advertisements, brochures, manuals and
other appropriate uses made in the promotion, distribution or use of the Revised
Object, Font Programs and PostScript Language Specification including any EFI
translated version. EFI shall make specific reference to the Revised Object or
Font Programs in any advertisement concerning the Licensed Systems which also
contains specific names of other software products. All such uses shall be in
accordance with Adobe's then current trademark manual.
5. Trademark Registrations. EFI, at Adobe's request and expense, shall
(i) promptly provide Adobe with any specimens, (ii) execute all applications for
trademark -registrations, assignments or other applicable documents and (iii)
perform any other act reasonably necessary for any Trademark Owner to secure or
maintain any and all Trademark rights in any country, provided that EFI is
marketing the Revised Object, Font Programs and Licensed Systems in association
with a Trademark and in such country.
6. No Unitary or Composite Marks. EFI agrees not to use any other
trademark or service xxxx in close proximity to any of the Adobe Trademarks or
combine the marks so as to effectively create a unitary composite xxxx without
the prior written approval of Adobe.
[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.