Digital Enterprise Platform Data Services License Agreement

Digital Enterprise Platform Data Services License Agreement
Adobe Digital Enterprise Platform Data Services for JEE Software License Agreement
NOTICE TO USER: THIS LICENSE AGREEMENT (“AGREEMENT”) GOVERNS INSTALLATION AND
USE BY LICENSEES OF THE ADOBE SOFTWARE DESCRIBED HEREIN. INSTALLATION AND USE OF
THE SOFTWARE IS SUBJECT TO A SEPARATE WRITING DETAILING THE LICENSE METRICS
APPLICABLE TO LICENSEE. 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 PERSON’S OR ENTITY’S 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.
LICENSEE’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.
Definitions
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, Citywest Business Campus, Dublin 24, Ireland, a company organized under the laws of
Ireland and an affiliate and licensee of Adobe Systems Incorporated.
1.2
“Authorized Users” means employees and individual contractors (i.e., temporary employees) of Licensee.
1.3
“Computer” means one or more central processing units (“CPU”) in a hardware device (including a Server)
that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of
instructions.
1.4
“Development Software” means Software licensed for use in a technical environment solely for internal
development and testing with respect to licensed Production Software.
1.5
“Disaster Recovery Environment” means Licensee’s technical environment designed solely to allow
Licensee to respond to an interruption in service due to an event beyond Licensee’s control that creates an inability
on Licensee’s part to provide critical business functions for a material period of time.
1.6
“Documentation” means the user manuals and/or technical publications as applicable, supplied in
connection with validly licensed Software relating to the installation, use and administration of the Software.
1.7
"Evaluation Software" means Software licensed for internal evaluation purposes and not for productive
business use.
1.8
“Internal Network” means Licensee’s private, proprietary network resource accessible only by Authorized
Users. “Internal Network” specifically excludes the Internet or any other network community open to the public,
including membership or subscription driven groups, associations or similar organizations. Connection by secure
links such as VPN or dial up to Licensee’s Internal Network for the purpose of allowing Authorized Users to use the
Software should be deemed use over an Internal Network.
1.9
"License Key" means any license key, activation code, or similar installation, access or usage control
codes, including serial numbers and electronic certificates digitally signed by Adobe, designed to provide access to
licensed software applications.
1.10
"License Metric" means each of the per-unit metrics specified by Adobe in connection with the licensed
quantities identified in a separate writing to describe the scope of Licensee's right to use the Production Software
and Development Software. The License Metrics are incorporated by reference into this Agreement. One or more of
the following License Metrics (or another License Metric as provided in a separate writing) applies to each software
application as further provided herein:
(a)
“Per-CPU” The total number of CPUs on the Computers used to operate the Software may not exceed the
licensed quantity of CPUs. For purposes of this License Metric: (i) all CPUs on a Computer on which the Software
is installed shall be deemed to operate the Software unless Licensee configures that Computer (using a reliable and
verifiable means of hardware or software partitioning) such that the total number of CPUs that actually operate the
Software is less than the total number on that Computer; and, (ii) when a CPU contains more than one processing
core, each group of two (2) processing cores, and any remaining unpaired processing core, will be deemed a CPU
unless otherwise provided in the applicable Multicore Conversion Table available at
http://www.adobe.com/go/multicorepolicy or as separately provided in writing.
(b)
Per-Server. The total number of Servers on which the Software is installed may not exceed the licensed
quantity of Servers.
1.11
“Production Software” means Software licensed for productive business use.
1.12
“Sample Code” means sample software in source code format designated in the Documentation as “sample
code”, “samples,” “sample application code”, and/or “snippets”, and found in directories labeled “samples”.
1.13
"Server" means a Computer designed or configured for access by multiple users through a network.
1.14
“Software” means the object code version of the validly licensed software program(s) including all
Documentation and other materials provided by Adobe to Licensee under this Agreement, and any modified
versions and copies of, and upgrades, updates and additions to such Software, provided to Licensee by Adobe at any
time, to the extent not provided under a separate agreement. The term “Software Product” may also be used to
indicate a particular product or version of a product, and otherwise has the same meaning as Software.
2.
License. Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a perpetual
(except as otherwise set forth in this Agreement), non-exclusive license to permit Authorized Users to install and use
the Software delivered hereunder according to the terms and conditions of this Agreement on Computers within
Licensee’s Internal Network, on the licensed platforms and configurations, in the manner and for the purposes
described in the Documentation, as further set forth below.
2.1
License Limitations. Licensee's right to install and use the Software is limited as follows based on the type
of Software licensed: (a) if Licensee has licensed Production Software or Development Software version(s) of the
Software, then Licensee's right to install and use the Software is limited based on the License Metrics applicable to
the particular software application licensed as provided in a separate written document and as further provided in
Section 3 of this Agreement; and (b) if Licensee has licensed Evaluation Software, then Licensee's right to install
and use the Software is limited as provided in Section 4 of this Agreement.
2.2
Sample Code. Licensee may modify the Sample Code solely for the purposes of designing, developing and
testing Licensee’s own software applications. However, 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 Licensee’s 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
Licensee’s application. Licensee agrees to defend, indemnify, and hold Adobe and its suppliers harmless from and
against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution
of Licensee’s 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 Licensee’s expense, and cooperates with Licensee, at
Licensee’s expense, in defending or settling such claim.
2.3 Additional Software. Licensee is not permitted to use any software applications or components accompanying
or installed with the Software unless Licensee is validly licensed to do so and only to the extent explicitly permitted
under this Agreement or a separate writing. Use of some materials and services (including without limitation third
party materials and services) included in or accessed through the Software may be subject to other terms and
conditions typically found in a separate license agreement, terms of use or "Read Me" file located within or near
such materials and services or at http://www.adobe.com/products/eula/third_party/. Any licenses granted hereunder
do not alter any rights and obligations Licensee may have under the terms and conditions governing such third party
materials and services provided, however, that the disclaimer of warranty and limitation of liability provisions in this
Agreement will apply to all Software provided hereunder. By accessing and/or using any such other materials or
services, Licensee hereby agrees to the applicable separate license agreements that apply to such other materials or
services.
2.4
Backup and Disaster Recovery. Licensee may make and install a reasonable number of copies of the
Software for backup and archival purposes and use such copies solely in the event that the primary copy has failed
or is destroyed, but in no event may Licensee use such copies concurrently with Production Software or
Development Software. Licensee may also install copies of the Software in a Disaster Recovery Environment for
use solely in disaster recovery and not for production, development, evaluation or testing purposes other than to
ensure that the Software is capable of replacing the primary usage of the Software in case of a disaster.
2.5
Documentation. Licensee may make and distribute copies of the Documentation for use by Authorized
Users in connection with 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.
2.6
Outsourcing. Licensee may sub-license use of the Software to a third party outsourcing or facilities
management contractor to operate the Software on Licensee’s 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 Licensee’s 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.
2.7
Font Software. If the Software includes font software, then Licensee may (a) use the font software on
Licensee’s Computers in connection with Licensee’s use of the Software as permitted under this Agreement; (b)
output such font software on any output devices connected to Licensee’s Computers; (c) convert and install the font
software into another format for use in other environments provided that use of the converted font software may not
be distributed or transferred for any purpose except in accordance with the transfer section in this Agreement; and (d)
embed copies of the font software into Licensee’s electronic documents for the purpose of printing and viewing the
document, provided that if the font software Licensee is embedding is identified as “licensed for editable
embedding” on Adobe’s website at http://www.adobe.com/type/browser/legal/embeddingeula.html, Licensee may
also embed copies of that font software for the additional limited purpose of editing Licensee’s electronic documents.
No other embedding rights are implied or permitted under this license.
2.8
Deployment. Any application created using Adobe Digital Enterprise Platform Data Services for JEE
Software must be deployed with an authorized and validly licensed Production Software copy of Adobe Digital
Enterprise Platform Data Services for JEE Software.
2.9
Restrictions
2.9.1 No Modifications, No Reverse Engineering. Licensee shall not modify, port, adapt or translate the Software.
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
Licensee’s 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 Adobe’s and its suppliers’ proprietary rights
in the source code for the Software are protected.
2.9.2
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 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. Licensee shall
not unbundle or repackage the Software for distribution, transfer or resale.
2.9.3
No Transfer. Except as may be explicitly provided in this Agreement, Licensee shall not (i) sublicense,
assign or transfer the Software or Licensee’s rights in the Software, to any third party, or (ii) authorize any portion
of the Software to be copied onto or accessed from another individual’s or entity’s Computer.
2.9.4
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 or subscription basis; (c) providing use of the Software in a computer service
business, third party outsourcing facility or service, service bureau arrangement, network, or time sharing basis;
and/or (d) using any component, library, or other technology included with the Software other than solely in
connection with its use of the Software.
2.9.5
Export Rules. Licensee agrees that the Software will not be shipped, transferred or exported into any
country or used in any manner prohibited by the United States Export Administration Act or any other export laws,
restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as an export
controlled item under the Export Laws, Licensee represents and warrants that Licensee is not a citizen of, or located
within, an embargoed or otherwise restricted nation (including Iran, Iraq, Syria, Sudan, Libya, Cuba and North
Korea) and that Licensee is not otherwise prohibited under the Export Laws from receiving the Software. All rights
to install and use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with
the terms of this Agreement.
2.10
Delivery. The Software may be delivered via electronic delivery or via tangible media (e.g., CD or DVD),
and, if applicable, the Software may be supplied with a valid License Key.
3.
License Metrics and Limitations.
3.1
Production Software License. The following terms and conditions, including the License Metrics, govern
Licensee's use of validly licensed Production Software and Development Software versions of the Software.
3.1.1 Adobe Digital Enterprise Platform Data Services for JEE Software. This Section 3.1.1 applies only if Licensee
has obtained a valid Adobe Digital Enterprise Platform Data Services for JEE Enterprise Edition. Adobe grants
Licensee a license to install and use the Adobe Digital Enterprise Platform Data Services for JEE Software as
Production Software on a Per-CPU basis. If Licensee has licensed the Adobe Digital Enterprise Platform Data
Services for JEE Enterprise Edition, then Licensee is granted a license to use the Edge Server in conjunction with
that Software, but such use may not exceed the License Metric obtained for Adobe Digital Enterprise Platform Data
Services for JEE Enterprise Edition.
3.2
Development Software License. This Section 3.2 applies only if Licensee has obtained a valid
Development Software license to the Software. In addition to the other terms contained herein, Licensee’s license to
the Development Software is limited to use in Licensee’s technical environment strictly for testing and development
purposes and not for production purposes. Licensee may (a) install the Development Software on Servers connected
to Licensee’s Internal Network provided that the total number of Computers used to operate the Development
Software does not exceed the licensed amount, and (b) permit Authorized Users to use the Development Software in
accordance with this Agreement.
4.
Evaluation Software. This Section 4 applies only if Licensee has obtained a valid license to evaluate
Software as Evaluation Software as separately provided in writing by Adobe or as indicated by the License Key
Licensee uses to install the Software.
4.1
License. Licensee may (a) install the Evaluation Software on Computers within Licensee’s Internal
Network, and (b) permit only Authorized Users to use the Evaluation Software within Licensee’s Internal Network
for the sole purpose of determining whether to purchase a license to the Evaluation Software and not for any revenue
generation, commercial activity or other productive business purpose. Licensee is not permitted to use the
Evaluation Software (including its output) directly or indirectly with any Production Software or Development
Software (or the output from such software).
4.2
Limitations. Licensee’s rights to install and use Evaluation Software under this Section 4 will terminate
immediately upon such time that Licensee purchases a license to a non-evaluation version of such Software. Adobe
reserves the right to terminate Licensee’s license to use the Evaluation Software at any time in its sole discretion.
Licensee agrees to return or destroy Licensee’s copy of the Evaluation Software upon termination of this Agreement
for any reason. To the extent that any provision in this Section 4 is in conflict with any other term or condition in
this Agreement, this Section 4 shall supersede such other term(s) and condition(s) with respect to the Evaluation
Software, but only to the extent necessary to resolve the conflict. LICENSEE ACKNOWLEDGES THAT THE
EVALUATION SOFTWARE MAY (i) HAVE LIMITED FEATURES, (ii) FUNCTION FOR A LIMITED
PERIOD OF TIME, OR (iii) HAVE OTHER LIMITATIONS NOT PRESENT IN NON-EVALUATION
SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE
EVALUATION SOFTWARE IS PROVIDED TO LICENSEE BY ADOBE ON AN “AS IS” BASIS AND ADOBE
DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO LICENSEE OF ANY KIND.
5.
Intellectual Property Rights. The Software and any copies that Licensee is authorized by Adobe to make are
the intellectual property of and are owned by Adobe Systems Incorporated and its suppliers. The structure,
organization and code of the Software are the valuable trade secrets and confidential information of Adobe Systems
Incorporated and its suppliers. The Software is 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 all rights not expressly granted are reserved by Adobe.
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 Licensee’s right to use any previous version of the
Software. As an exception, Licensee may maintain installations of previous versions of the Software on Licensee’s
Computers for a reasonable period of time (but not exceeding ninety (90) days) after Licensee obtains the upgrade or
update to assist Licensee in the transition to the upgrade or update, provided that Licensee’s right to such
simultaneous installations does not constitute an increase in the number of copies, licensed amounts or scope of use
granted to Licensee hereunder.
7.
WARRANTY
7.1.
Warranty. Except as may be otherwise provided in Section 14, 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.
Non-substantial variation of performance from the Documentation does not establish a warranty right. THIS
LIMITED WARRANTY DOES NOT APPLY TO EVALUATION SOFTWARE (AS IDENTIFIED IN SECTION
4), PATCHES, SAMPLE CODE, FONT SOFTWARE CONVERTED INTO OTHER FORMATS, OR TO
SOFTWARE THAT HAS BEEN ALTERED BY LICENSEE, TO THE EXTENT SUCH ALTERATIONS
CAUSED A DEFECT. All warranty claims must be made within such ninety (90) day period. If the Software does
not perform substantially as warranted above, the entire liability of Adobe and its affiliates and Licensee’s exclusive
remedy shall be limited to either, at Adobe’s option, replacement of the Software or refund of the license fee paid to
Adobe for the Software whereupon the license to such software shall automatically terminate. THE LIMITED
WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE
MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
7.2
DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY
ADOBE AND ITS AFFILIATES AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ADOBE, ITS
AFFILIATES OR ITS SUPPLIERS’ BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED
WARRANTY, AND ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT
THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO
LICENSEE’S JURISDICTION, ADOBE AND ITS AFFILIATES AND 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 MATTER, INCLUDING BUT NOT
LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS
FOR ANY PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME
JURISDICTIONS. The provisions of Section 7.2 and Section 8 will survive the termination of this agreement,
howsoever caused, but this will not imply or create any continued right to use the Software after termination of this
Agreement.
8.
LIMITATION OF LIABILITY. EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE
AND AS OTHERWISE PROVIDED IN SECTION 14, IN NO EVENT WILL ADOBE OR ITS AFFILIATES OR
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 LICENSEE’S JURISDICTION. ADOBE’S AGGREGATE LIABILITY AND THAT
OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL 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. THIS LIMITATION OF LIABILITY
MAY NOT BE VALID IN SOME STATES. Nothing contained in this Agreement limits Adobe’s liability to
Licensee in the event of death or personal injury resulting from Adobe’s 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 Adobe’s 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. Updates
and upgrades may be licensed to Licensee by Adobe with additional or different 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.
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 2277202-4 (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.
12.
Compliance with Licenses. Adobe may, at its expense, and no more than once every twelve (12) months,
appoint an independent third party or Adobe’s internal auditor to verify the usage and number of copies and
installations of the Software in use by Licensee. Any such verification shall be conducted upon no less than seven
(7) business days notice, during regular business hours at Licensee’s offices and shall not unreasonably interfere
with Licensee’s business activities. Upon Licensee’s request, both Adobe and its third party auditors, if applicable,
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, is exceeding any applicable License Metric, or is 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 usage rights or copies within thirty (30) days of invoice date, with such underpaid
fees being the license fees as per Adobe’s 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 Adobe’s reasonable costs of conducting the verification. This Section shall survive expiration or
termination of this Agreement for a period of two (2) years.
13.
Confidentiality. Licensee agrees that Licensee will treat the License Keys ("Confidential Information")
with the same degree of care to prevent unauthorized disclosure to anyone other than Authorized Users as Licensee
accords to Licensee's own confidential information, but in no event less than reasonable care. Licensee may disclose
the Confidential Information in response to a valid order by a court or other governmental body, when otherwise
required by law, or when necessary to establish the rights of either party under this Agreement, provided Licensee
gives Adobe advance written notice thereof.
14.
Specific Provisions and Exceptions. This Section 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 is in conflict with any other term or condition in this agreement, this Section will supersede
such other term or condition.
14.1
Limited Warranty for Users Residing in Germany or Austria. If Licensee obtained the Software in
Germany or Austria, and Licensee usually resides in such country, then Section 7 does not apply; instead, Adobe
warrants that the Software provides the functionalities set forth in the Documentation (the "agreed upon
functionalities") for the limited warranty period following receipt of the Software when used on the recommended
operating system, platform and hardware configuration. As used in this Section, "limited warranty period" means
one (1) year if Licensee is a business user and two (2) years if Licensee is not a business user. Non-substantial
variation from the agreed upon functionalities will not and does not establish any warranty rights. THIS LIMITED
WARRANTY DOES NOT APPLY TO EVALUATION SOFTWARE (AS IDENTIFIED IN SECTION 4),
SAMPLE CODE, PATCHES, FONT SOFTWARE CONVERTED INTO OTHER FORMATS, OR SOFTWARE
THAT HAS BEEN ALTERED BY LICENSEE TO THE EXTENT SUCH ALTERATION CAUSED A DEFECT.
To make a warranty claim, during the limited warranty period Licensee must return, at Adobe’s expense, the
Software and proof of purchase to the location where Licensee 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, Licensee is 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.
14.2
Limitation of Liability for Users Residing in Germany and Austria.
14.2.1 If Licensee obtained the Software in Germany or Austria, and Licensee usually resides in such country,
then Section 8 does not apply. Instead, subject to the provisions in Section 14.2.2, 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.
14.2.2 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.
14.2.3 Licensee is required to take all reasonable measures to avoid and reduce damages, in particular to make
back-up copies of the Software and Licensee’s computer data subject to the provisions of this agreement.
15.
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), 5 (Intellectual Property Rights),
7.2 (Disclaimer), 8 (Limitation of Liability), 9 (Governing Law), 10 (General Provisions), 11 (Notice to U.S.
Government End Users), 13 (Confidentiality), 14 (Specific Provisions and Exceptions), 15 (Term and Termination)
and 16 (Third-Party Beneficiary).
16.
Third-Party Beneficiary. Licensee acknowledges and agrees that Adobe's 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.
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
Licensee’s jurisdiction.
Adobe is a trademark of Adobe Systems Incorporated in the United States and/or other countries. All other
trademarks are the property of their respective owners.
Adobe Digital Enterprise Platform Data Services for JEE Software License 091311
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