END USER LICENSE AGREEMENT
THIS IS AN AGREEMENT BETWEEN VERISKOPE LLC AND USERS OF ADOBE MEDIA SERVER SOFTWARE (LICENSED SOFTWARE). IT IS ALSO AN AGREEMENT BETWEEN ADOBE (AS DEFINED BELOW) AND EACH SUCH USER. BY ACKNOWLEDGING ACCEPTANCE OF THESE TERMS OR BY DOWNLOADING OR USING OR COPYING SUCH SOFTWARE, YOU AGREE TO THE FOLLOWING.
A. Veriskope makes no warranties or representations as to the performance or quality of the Licensed Software. Purchasers of a license to the Licensed Software may rely upon the performance and other warranties provided directly by Adobe below.
B. EXCEPT FOR THE EXPRESS WARRANTIES OF ADOBE MADE BELOW, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY VERISKOPE, ADOBE AND ITS AFFILIATES, AND THEIR SUPPLIERS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND THE SERVICES AND SOFTWARE ARE PROVIDED AS IS.
C. IN NO EVENT WILL (A) VERISKOPE OR ADOBE, AND THEIR AFFILIATES AND SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE AND (B) VERISKOPE AND ADOBE, OR THEIR AFFILIATESÕ AND SUPPLIERSÕ AGGREGATE LIABILITY TO USER AND ANY THIRD PARTY IN CONNECTION WITH THE SOFTWARE EXCEED THE AMOUNTS PAID FOR THE SOFTWARE.
ADOBE MEDIA SERVER End User License Agreement
NOTICE TO USER: THIS END USER LICENSE AGREEMENT (AGREEMENT) GOVERNS INSTALLATION AND USE BY LICENSEES OF THE ADOBE SOFTWARE DESCRIBED HEREIN. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND DURING REVIEW OF AN ELECTRONIC VERSION OF THIS LICENSE, OR DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT INSTALLS AND USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT INSTALLS OR USES THE SOFTWARE ON ANOTHER PERSONÕS OR ENTITYÕS BEHALF. THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE TO WHICH LICENSEE HAS OBTAINED A VALID LICENSE REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.LICENSEEÕ S RIGHTS UNDER THIS AGREEMENT MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS IN A SEPARATE WRITTEN AGREEMENT WITH ADOBE THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
1.1. Adobe means Adobe Systems Incorporated, a Delaware corporation, 345 Park Avenue, San Jose, California 95110, if subsection 9(a) of this Agreement applies; otherwise it means Adobe Systems Software Ireland Limited, 4-6 Riverwalk Drive, Citywest Business Campus, Saggart D24, Dublin, Republic of Ireland, a company organized under the laws of Ireland and an affiliate and licensee of Adobe Systems Incorporated.
1.2 “Adobe Runtime” means Adobe AIR, Adobe Flash Player and any other future runtimes utilizing AdobeÕs Flash technology distributed by Adobe or its licensees.
1.3 Authorized Users means employees and individual contractors (i.e., temporary employees) of Licensee that (a) develop and/or build applications using the Software; and/or (b) use the Software to deliver Content to end users.
1.4 Computer means one or more central processing units in a hardware device (including hardware devices accessed by multiple users through a network that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
1.5 Connections means the number of connections over which the client can receive and deliver Content from a single Computer or Virtual Computer where the Software is installed.
1.6 Concurrent Connections means the total number of simultaneous Connections from software clients to a specific Computer or Virtual Computer.
1.7 Content means video, audio and/or data files in file formats supported by the Software and may be protected according to the Documentation.
1.8 Content Encryption Key means a cryptographic value for use in encrypting Content for secure distribution and to decrypt encrypted Content for access and use in accordance with the accompanying metadata.
1.9 Starter Server means Adobe Media Server Starter, a particular configuration and license of the Software with a limited number of Concurrent Connections.
1.10 Documentation means the user manuals and/or technical publications as applicable, supplied with the Software, relating to the installation, use and administration of the Software.
1.11 Edge Configuration means a particular configuration and license of the Software for the Professional Server and Extended Server solely for use with an Origin Configuration.
1.12 Extended Server means the Adobe Media Server Extended, a version of the Software that (a) is either configured (i) as an Origin Configuration and/or (ii) Origin Configuration and one or more Edge Configurations; (b) permits end users to provide customizable streaming of Contents; (c) permits Multi -Way Communications; (d) permits use of Adobe Media Gateway for video and audio calls ; and (e) permits the use of RTMFP (hereinafter defined).
1.13 Adobe Media Gateway means the Adobe Media Gateway software in object code form provided with the Software which converts Session Initiation Protocol (SIP) to the Real Time Media Protocol (RTMP) and vice versa.
1.14 Professional Server means the Adobe Media Server Professional, a version of the Software that (a) is either configured (i) as an Origin Configuration and/or (ii) Origin Configuration and one or more Edge Configurations; (b) permits end users to provide customizable streaming of Content; (c) permits Multi -Way Communications; (d) permits use of Adobe Media Gateway for audio calls only; and (d) permits the use of RTMFP.
1.15 Multi -Way Communications means any form of communication between parties including but not limited to (a) video chat; (b) video messaging; (c) VoIP applications; (d) multi-user gaming; or (e) multi -user real- time collaboration applications such as video conferencing.
1.16 Not For Resale Software means Software that is used by Licensee solely for demonstrating or training persons about the features and functionality of the Software and not for any production purposes.
1.17 Origin Configuration means a particular configuration of the Professional Server and Extended Server for RTMP that (a) stores the custom server side applications, Content, usage reports and/or logs generated by Licensee; (b) manages application logic; (c) delivers audio, video and/or data to either end users and/or to one or more Professional Servers or Extended Servers in Edge Configurations; and (d) may perform other functions in order to facilitate interaction between the Origin Configuration and Edge Configuration; provided, however the Origin Configuration may be used on a standalone basis.
1.18 Root Public Key means a cryptographic value embedded in the Software by Adobe that is used to establish trust between server and client.
1.19 RTMFP means the Real Time Media Flow Protocol which is used to allow communication between the Software and one or more clients to allow peer to peer communication between additional clients connected to the Software.
1.20 Sample Code means (a) the Sample Server Applications; and (b) other sample software and sample applications in source code format, in each case made available through AdobeÕs website and/or provided with the Software solely for use with the Professional Server, Standard Server and Extended Server.
1.21 Sample Server Applications means AdobeÕs proprietary and/or licensed software applications in object code and/or source code that may be provided by Adobe from time to time during the term of this Agreement and (a) are installed and used solely on a server where the Software is installed; (b) are provided in the samples file of the Software and (c) provide additional functionality to the Professional Server, Standard Server and Extended Server.
1.22 Software means the object code version of the validly licensed software program(s), including but not limited to the Starter Server, Professional Server, Standard Server, Extended Server, Adobe Media Gateway, Sample Server Applications and Tools, as applicable, provided by Adobe to Licensee under this Agreement and any updates, new releases and upgrades that are made generally commercially available by Adobe in its sole discretion.
1.23 Standard Server means the Adobe Media Server Standard, a version of the Software that permits streaming of pre-recorded or live Content except for the streaming of Multi -Way Communications, use of RTMFP and Adobe Media Gateway.
1.24 Tools means AdobeÕs proprietary monitoring and managing applications in object code only that (a) may be provided by Adobe from time to time during the term of this Agreement and/or as part of the Software in the tools file folder; and (b) are installed and used on a client or server.
1.25 Trial Version means a version of the Software that may be used one time on a total of 5 Computers and/or Virtual Computers, may have limited features and will automatically become a Starter Server after a predetermined period of time.
1.26 Virtual Computer means a technical environment that partitions a physical computer into multiple computers so that each computer has the appearance and capability of running as its own dedicated machine.
2. License and Restrictions
2.1. Software License. Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a perpetual (except as set forth in Section 15) non-exclusive license to install the Software on one (1) Computer or Virtual Computer and use the Software delivered hereunder according to the terms and conditions of this Agreement and the Documentation. Unless indicated otherwise by the License Key (as defined below) provided to Licensee, Licensee shall be deemed to have licensed the Starter Server. If Licensee has licensed a Trial Version, in which case Section 2.2 applies, or if Licensee has licensed Not For Resale Software, in which case Section 2.3 applies.
2.1.1. Starter Server License. This Section 2.1.1 applies only if Licensee has obtained a valid Starter Server license to the Software. In addition to the other terms contained herein, (a) LicenseeÕs license to the Starter Server Software is limited to a maximum number of (i) ten (10) Concurrent Connections when using RTMP, (ii) fifty (50) Concurrent Connections when using RTMFP, and (iii) five (5) Concurrent Connections when using SIP; (b) Licensee shall only use Adobe Media Gateway for audio calls; and (c) Licensee shall not use the Starter Server for load balancing. No maintenance and support is available for the Starter Server.
2.1.2. Professional Server License. This Section 2.1.2 applies only if Licensee has obtained a valid Professional Server license. Adobe grants Licensee a license to install and use the Professional Server (a) for the number of Connections permitted by the capacity of LicenseeÕs serverÕs hardware and software, with the limitation of (i) five (5) Concurrent Connections when using SIP; and (ii) five hundred (500) Concurrent Connections when using RTMFP; (b) to extend the Professional Server using the Sample Server Applications in accordance with the terms and conditions of this Agreement; (c) to develop custom plug-ins in accordance with the terms and conditions of this Agreement; (d) to configure the Professional Server in an Origin Configuration or in an Edge Configuration; (e) to enable Multi -Way Communications; and (f) in conjunction with Adobe Media Gateway for audio calls only.
2.1.3. Standard Server License. This Section 2.1.3 applies only if Licensee has obtained a valid Standard Server license. Adobe grants Licensee a license to install and use the Standard Server (a) for the number of Connections permitted by the capacity of the LicenseeÕs serverÕs hardware and software; and (b) to develop custom plug-ins in accordance with the terms and conditions of this Agreement. Licensee shall not use the Standard Server for Multi – Way Communications, RTMFP or in conjunction with Adobe Media Gateway.
2.1.4. Extended Server License. This Section 2.1.4 applies only if Licensee has obtained a valid Extended Server license. Adobe grants Licensee a license to install and use Extended Server (a) for the number of Connections permitted by the capacity of LicenseeÕs serverÕs hardware and software, with the limitation of (i) twenty five (25) Concurrent Connections when using SIP; and (ii) fifteen thousand (15,000) Concurrent Connections when using RTMFP; (b) to extend the Extended Server using the Sample Server Applications in accordance with the terms and conditions of this Agreement; (c) to develop custom plug-ins in accordance with the terms and conditions of this Agreement; (d) to configure the Extended Server in an Origin Configuration or in an Edge Configuration; (e) to enable Multi-Way Communications; (f) in conjunction with Adobe Media Gateway for audio and video calls .
2.1.5. Adobe Media Gateway License. This Section applies only to Adobe Media Gateway. Notwithstanding anything to the contrary in this Agreement, Adobe grants to Licensee a perpetual (except as set forth in Section 15) non-exclusive license to install and use Adobe Media Gateway on one (1) Computer or Virtual Computer, which may be a separate Computer or Virtual Computer from where the Software is installed, but in any event, Adobe Media Gateway may only be used in conjunction with the Software subject to the license terms set forth above.
2.1.6. Tools License. This Section 2.1.5 only applies to the Tools. (a) f4f Packager Tool. Adobe hereby grants Licensee a non-exclusive, non-transferable, limited license to copy and use the Tool identified as the f4fpackager in the tools file folder of the Software for internal use to prepare audio or video content for fragmented delivery to an Adobe Runtime.
(b) Other Tools. Adobe grants Licensee a license to install and use the Tools, with the exception of the F4V Packager, solely for managing and monitoring of the Professional Server, Standard Server and Extended Server, including but not limited to the delivery of Content via the Software.
2.2. Trial License. Notwithstanding anything to the contrary in this Agreement, if Licensee has obtained a valid license to a Trial Version, then this Section 2.2 shall apply. 2.2.1. License. Subject to the terms and conditions of this Agreement , Adobe grants to Licensee a non-exclusive license to (a) install the Trial Version on a maximum of five (5) Computers and/or Virtual Computers; and (b) permit Authorized Users to use the Trial Version solely to evaluate the Trial Version for LicenseeÕs own internal evaluation and review purposes. LicenseeÕs rights with respect to the Trial Version are further limited as set forth in Section 2.2.2. 2.2.2. Limitations. Licensee shall not (a) use the Trial Version and Documentation for revenue generating or commercial activities; (b) use the Trial Version to host third party applications or content; (c) permit any person who is not an Authorized User to access and use the Trial Version and Documentation; (d) alter the contents of a hard drive, Computer or Virtual Computer to enable the use of the Trial Version for an aggregate period in excess of the period of time permitted by the License Key which Licensee may evaluate a Trial Version (Trial Period); (e) circumvent the serial time out; and (f) use the Trial Version for a purpose other than the sole purpose of determining whether to purchase a license to the Software. Upon expiration of the Trial Period, the Trial Version license shall automatically become a license to the Starter Server and shall be subject to Section 2.1 and 2.1.1 of this Agreement. 2.2.3. Licensee acknowledges that as a Trial Version, the Trial Version might place watermarks on output, contain limited functionality, or cease operations after a designated period of time unless extended by Adobe upon LicenseeÕs acquisition of a full commercial license. LicenseeÕs rights to install and use the Trial Version under this Section 2.2 will terminate immediately upon the earlier of (a) the expiration of the Trial Period; or (b) such time that Licensee purchases a license to a non-evaluation version of such Trial Version. Adobe reserves the right to terminate LicenseeÕs license to evaluate the Trial Version at any time in its sole discretion. Licensee agrees to return or destroy LicenseeÕs copy of the Trial Version upon termination of this Agreement for any reason. Licensee shall not be entitled to any updates, upgrades for the Trial Version; provided, however Licensee may install and use any free publicly available hot fixes and maintenance releases. To the extent that any provision in this Section 2.2 is in conflict with any other term or condition in this Agreement, this Section 2.2 shall supersede such other term(s) and condition(s) with respect to the evaluation of the Trial Version, but only to the extent necessary to resolve the conflict. LICENSEE ACKNOWLEDGES THAT THE TRIAL VERSION MAY (i) HAVE LIMITED FEATURES, (ii) FUNCTION FOR A LIMITED PERIOD OF TIME, OR (iii) HAVE OTHER LIMITATIONS NOT PRESENT IN A NON-TRIAL VERSION OF THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TRIAL VERSION IS PROVIDED TO LICENSEE BY ADOBE ON AN AS IS BASIS, AND ADOBE DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO LICENSEE OF ANY KIND.
2.3. Not For Resale Software. Notwithstanding anything to the contrary in this Agreement, if Licensee has obtained a valid license to Not For Resale Software this Section 2.3 shall apply to such Not For Resale Software. 2.3.1. License. Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a non -exclusive license to (a) install the Software on 1 Computer or 1 Virtual Computer; and (b) use the Software solely to demonstrate and conduct training sessions regarding the features and functionality of the Not For Resale Software to third parties. LicenseeÕs rights with respect to the Not For Resale Software are further limited as set forth in Section 2.3.2. 2.3.2. Limitations. Adobe reserves the right to terminate LicenseeÕs license to the Not For Resale Software at any time in its sole discretion. Licensee agrees to return or destroy LicenseeÕs copy of the Not For Resale Software upon termination of this Agreement for any reason. Licensee shall not be entitled to any upgrades for the Not For Resale Software; provided, however Licensee may install and use any free and publicly available hot fixes and maintenance releases. To the extent that any provision in this Section 2.3 is in conflict with any other term or condition in this Agreement, this Section 2.3 shall supersede such other term(s) and condition(s) with respect to the use of the Software, but only to the extent necessary to resolve the conflict. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE NOT FOR RESALE SOFTWARE IS PROVIDED TO LICENSEE
BY ADOBE ON AN AS IS BASIS. SEE SECTIONS 7 AND 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN NOT FOR RESALE SOFTWARE.
2.4. Sample Code.
2.4.1 Professional Server and Extended Server. Subject to the terms and conditions set forth herein, Licensee with a valid license to Professional Server or Extended Server may modify the Sample Code solely for the purposes of developing and testing LicenseeÕs own software applications to be used solely with the Professional Server and the Extended Server.
2.4.2 Standard Server. Subject to the terms and conditions set forth herein, Licensee with a valid license to Standard Server may only modify the Sample Code identified as the Access plug-in solely for the purposes of developing and testing LicenseeÕs own custom plug-ins to be used with the Standard Server.
2.4.3 Restrictions. Licensee is permitted to use, copy and redistribute its modified Sample Code only if all of the following conditions are met: (a) Licensee includes Adobe’s copyright notice (if any) with LicenseeÕs application, including every location in which any other copyright notice appears in such application; and (b) Licensee does not otherwise use Adobe’s name, logos or other Adobe trademarks to market LicenseeÕs application. Licensee agrees to defend, indemnify, and hold Adobe and its suppliers harmless from and against any claims or lawsuits , including attorneysÕ reasonable fees, that arise or result from the use or distribution of LicenseeÕs applications, provided that Adobe gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at LicenseeÕs expense, and cooperates with Licensee, at LicenseeÕs expense, in defending or settling such claim. No maintenance and support is provided for any Sample Code.
2.5. Backup. Licensee may make a reasonable number of backup copies of the Software, provided that the backup copies are not installed or used for other than archival purposes.
2.6. Documentation. Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a non- exclusive license to make copies of the Documentation for use by Authorized Users in connection with its use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.
2.7. Outsourcing. Licensee may sub-license use of the Software to a third party outsourcing or facilities management contractor to operate the Software on LicenseeÕs behalf, provided that (a) Licensee provides Adobe with prior written notice; (b) Licensee is responsible for ensuring that any such contractor agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Licensee; (c) such use is only in relation to LicenseeÕs direct beneficial business purposes as restricted herein; (d) such use does not represent or constitute an increase in the scope or number of licenses provided hereunder; and (e) Licensee shall remain fully liable for any and all acts or omissions by the contractor related to this Agreement.
2.8.1. No Modifications. No Reverse Engineering. Except for the Sample Code, Licensee shall not modify, port, adapt or translate the Software, or use any element of the Software to circumvent or defeat any content protection functions. Licensee shall not modify or replace the Root Public Key embedded in the Software by Adobe. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of LicenseeÕs jurisdiction give Licensee the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Licensee must first request such information from Adobe and Adobe may, in its discretion, either provide such information to Licensee or impose reasonable conditions, including a reasonable fee, on such use of the source code to ensure that AdobeÕs and its suppliersÕ proprietary rights in the source code for the Software are protected.
2.8.2. No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Licensee as a single product to be used as a single product on Computers and Virtual Computers and platforms as permitted herein. Licensee is not required to use all component parts of the Software, but Licensee shall not unbundle the component parts of the Software for use on different Computers and Virtual Computers except as permitted under this Agreement. Licensee shall not unbundle or
repackage the Software for distribution, transfer or other disposition. Notwithstanding the foregoing, Licensee may unbundle the Sample Code and Tools from the other components of the Software.
2.8.3. No Transfer. Except as may be explicitly provided in this Agreement, Licensee shall not (a) sublicense, assign or transfer the Software to any third party nor shall Licensee sublicense, assign or transfer LicenseeÕs rights in the Software; or (b) authorize any portion of the Software to be copied onto or accessed from another individualÕs or entit yÕs Computer or Virtual Computer.
2.8.4. Prohibited Use. Except as expressly authorized under this Agreement, Licensee is prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership, subscription or hosted basis; (c) providing use of the Software in a third party outsourcing facility or service, service bureau arrangement, or time sharing basis; (d) allowing any person who is not an Authorized User from using the Software; (e) bundling or integrating the Software with other products and services; and (f) extracting a Content Encryption Key from encrypted Content packaged by another party and separately record, transcribe, reproduce or disseminate such Content Encryption Key in any form.
2.8.5. Third Party Software. The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http:// www.adobe.com/products/eula/third_party/adobemedia(or a successor website thereto) and are made a part of and incorporated by reference into this Agreement. These notices may be updated from time to time in AdobeÕs sole discretion and Licensee is solely responsible and liable for checking the website and complying with the third party notices.
2.8.6. Export Controls. Licensee acknowledges that the Software is subject to the U.S. Export Administration Regulations (the EAR) and that you will comply with the EAR. Licensee will not export or re-export the Software, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions (including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria); (2) any end user who Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (3) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. In addition, Licensee is responsible for complying with any local laws in LicenseeÕs jurisdiction which may impact the right to import, export or use the Software. If Adobe has knowledge that a violation has occurred, Adobe may be prohibited from providing maintenance and support for the Software.
2.8.7. Server Limitation. The parties acknowledge and agree that (a) the number of Connections is limited by the capacity of LicenseeÕs serverÕs hardware and software and that Adobe has no responsibility or liability for the capacity of LicenseeÕs serverÕs hardware and software.
3. Delivery. The Software may be delivered via electronic delivery or via a CD and if applicable, the Software may be supplied with a valid serial number and/or License Key.
4. Intellectual Property Rights. The Software, Documentation and any copies that Licensee is authorized by Adobe to make thereof are the intellectual property of and are owned by Adobe and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Adobe and its suppliers. The Software and Documentation are protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and Documentation and all rights not expressly granted are reserved by Adobe.
5. Confidentiality. Any license key, activation code, or similar installation, access or usage control codes (License Key) provided by Adobe to Licensee is considered the confidential information of Adobe, and Licensee must hold such License Key in strict confidence. If Licensee is an entity, Licensee may provide License Key access to Authorized Users solely in accordance with this Agreement. Notwithstanding the foregoing, if Licensee is permitted to sublicense the use of the Software in accordance with Section 2.7, then Licensee may disclose the License Key to the permitted third party outsourcing or facilities management contractor.
6. Updates. If the Software is an upgrade or update to a previous version of the Software, Licensee must possess a valid license to such previous version in order to use such upgrade or update. All upgrades and updates are
provided to Licensee subject to the terms of this Agreement on a license exchange basis. Licensee agrees that by using an upgrade or update Licensee voluntarily terminates LicenseeÕs right to use any previous version of the Software. As an exception, Licensee may continue to use previous versions of the Software on LicenseeÕs Computers and/or Virtual Computers after Licensee obtains the upgrade or update but only for a reasonable period of time to assist Licensee in the transition to the upgrade or update, and further provided that such simultaneous use shall not be deemed to increase the number of copies, licensed amounts or scope of use granted to Licensee hereunder. Upgrades and updates may be licensed to Licensee by Adobe with additional or different terms.
7.1. Warranty. Adobe warrants to Licensee that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following shipment of the Software when used on the recommended operating system, platform and hardware configuration as specified in the Documentation. This limited warranty does not apply to Trial Versions, Not For Resale Software, Sample Code, Server Side Applications and Tools. All warranty claims must be made within such ninety (90) day period. If the Software does not perform as warranted above, the entire liability of Adobe and LicenseeÕs exclusive remedy shall be limited to either, at AdobeÕs option, the replacement of the Software or the refund of the license fee paid to Adobe for the Software whereupon the license to such software shall automatically terminate.
7.2. DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY ADOBE AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ADOBEÕS, ITS AFFILIATESÕ AND ITS SUPPLIERSÕ BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE IN LICENSEEÕS JURISDICTION, ADOBE, ITS AFFILIATES AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO EVENT WILL ADOBE, ITS AFFILIATES AND ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEEÕS JURISDICTION. ADOBEÕS AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this Agreement limits AdobeÕs liability to Licensee in the event of death or personal injury resulting from AdobeÕs negligence or for the tort of deceit (fraud). Adobe is acting on behalf of its affiliates and suppliers for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact AdobeÕs Customer Support Department
9. Governing Law. This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is purchased when Licensee is in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is purchased when Licensee is in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) England, if a license to the Software is purchased when Licensee is in any other jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the
competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
10. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between Adobe and Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. Licensee shall comply with all applicable laws and regulations pertaining to this Agreement.
11. Notice to U.S. Government End Users.
11.1. Commercial Items. The Software and Documentation are Commercial Item(s), as that term is defined at 48 C.F.R. Section 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Adobe Systems Incorporated, 345 Park Avenue, San Jose, CA 95110-2704, USA.
11.2. U.S. Government Licensing of Adobe Technology. Licensee agrees that when licensing Adobe Software for acquisition by the U.S. Government, or any contractor therefore, Licensee will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227 -7202-1 and 227- 7202-4 (for the Department of Defense). For U.S. Government End Users, Adobe agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
11.3. Compliance with Licenses. Adobe may, at its expense, and no more than once every twelve (12) months, appoint its own personnel or an independent third party to verify the number of copies and installations as well as usage of the Adobe software in use by Licensee. Any such verification shall be conducted upon seven (7) business days notice, during regular business hours at LicenseeÕs offices or hosting location and shall not unreasonably interfere with LicenseeÕs business activities. Both Adobe and its auditors shall execute a commercially reasonable non-disclosure agreement with Licensee before proceeding with the verification. If such verification shows that Licensee is using a greater number of copies of the Software than that legitimately licensed, or are deploying or using the Software in any way not permitted under this Agreement and which would require additional license fees, Licensee shall pay the applicable fees for such additional copies within thirty (30) days of invoice date, with such underpaid fees being the license fees as per AdobeÕs then-current, country specific, license fee list. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement, then Licensee shall pay such underpaid fees and AdobeÕs reasonable costs of conducting the verification.
11.4. Third-Party Beneficiary. Licensee acknowledges and agrees that AdobeÕs licensors (and/or Adobe if Licensee obtained the Software from any party other than Adobe) are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or Adobe.
12. Specific Provisions and Exceptions. This Section 12 sets forth specific provisions related to certain components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this Section 12 is in conflict with any other term or condition in this agreement, this Section 12 will supersede such other term or condition.
12.1. Limited Warranty for Users Residing in Germany or Austria. If Licensee obtained the Software directly from Adobe in Germany and Austria, then Section 7 does not apply. Instead, Adobe warrants that the Software substantially provides the functionalities set forth in the Documentation and will at its own discretion correct defects of the Software by repair or replacement within a warranty period of one (1) year following receipt of the Software if Licensee is a business users or two (2) years if Licensee is a private consumer. If Adobe fails to correct a defect, Licensee is entitled to reduce the purchase price or cancel the Agreement. This warranty does not apply to Software provided to Licensee free of charge. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE PROVIDED TO YOU FREE OF CHARGE, FOR EXAMPLE, UPDATES, PRE-RELEASE, TRIAL, STARTER, PRODUCT SAMPLER AND NOT FOR RESALE (NFR) COPIES OF SOFTWARE, OR TO FONT SOFTWARE CONVERTED INTO OTHER FORMATS, WEBSITES, ONLINE SERVICES, CD SERVICES, ANY SOFTWARE MADE AVAILABLE BY ADOBE FOR FREE VIA WEB DOWNLOAD FROM ONE OF ADOBEÕS WEBSITES, OR SOFTWARE THAT HAS BEEN ALTERED BY YOU, TO THE EXTENT SUCH ALTERATION CAUSED A DEFECT. To make a warranty claim, during the limited warranty period you must return, at our expense, the Software and proof of purchase to the location where you obtained it. If the functionalities of the Software vary substantially from the agreed upon functionalities, Adobe is entitled — by way of re- performance and at its own discretion — to repair or replace the Software. If this fails, you are entitled to a reduction of the purchase price (reduction) or to cancel the purchase agreement (rescission). For further warranty information, please contact the Adobe Customer Support Department
12.2. Limitation of Liability for Users Residing in Germany and Austria.
12.2.1. If Licensee obtained the Software directly from Adobe in Germany and Austria, then Section 8 does not apply. Instead, subject to the provisions in Section 12.2, Adobe and its affiliates’ statutory liability for damages will be limited as follows: (i) Adobe and its affiliates will be liable only up to the amount of damages as typically foreseeable at the time of entering into the purchase agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation and (ii) Adobe and its affiliates will not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
12.2.2. The aforesaid limitation of liability will not apply to any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for culpably caused personal injuries.
12.2.3. You are required to take all reasonable measures to avoid and reduce damages, in particular to make back- up copies of the Software and your computer data subject to the provisions of this agreement.
13. Educational Software Product. If the Software accompanying this agreement is Educational Software Product (Software manufactured and distributed for use by only Educational End Users), Licensee is not entitled to use the Software unless Licensee qualifies in its jurisdiction as an Educational End User. Please visit http:// www.adobe.com/education/purchasingto learn if Licensee qualifies. To find an Adobe Authorized Academic Reseller in LicenseeÕs area, please visit http:// www.adobe.com/storeand look for the link for Buying Adobe Products Worldwide.
14. Term and Termination. This Agreement shall remain in effect until any material breach of this Agreement by Licensee occurs, upon which this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, Licensee shall discontinue use of the Software and shall destroy the Software, Documentation and all copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive termination of this Agreement: 1 (Definitions), 2.2 (Sample Code), 5 (Confidentiality), 7.2 (Disclaimer), 8 (Limitation of Liability), 9 (Governing Law), 10 (General Provisions), 11 (Notice to U.S. Government End Users), and 14 (Term and Termination). If Licensee has any questions regarding this Agreement or if Licensee wishes to request any information from Adobe please use the address and contact information included with this product to contact the Adobe office serving LicenseeÕs jurisdiction. Adobe and Flash are either registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries.