2.0

2.0
ADOBE FLASH ACCESS
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 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 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 runtime utilizing
Adobe’s Flash technology distributed by Adobe or its licensees.
1.3
“Authorized Site” means the single site, owned and operated by the Licensee for it exclusive benefit,
where Licensee may use and store the Highly Confidential Information, subject to the terms of this Agreement.
1.4
“Certificates” means electronic documents provided by Adobe pursuant to this Agreement that
incorporate a digital signature that associates a public key with an entity (including server, client) and can be
used to establish a chain of trust.
1.5
“Certificate Revocation List” (or CRL) means electronic documents published by Adobe to identify
Certificates that are no longer valid, having been revoked by Adobe.
1.6
“Compliance and Robustness Rules” means the document setting forth compliance and robustness
rules for the Licensed Product and use of the Licensed Software and Certificates located at
http://www.adobe.com/go/FlashAccessComplianceandRobustnessRules or a successor web site thereto.
1.7
“Computer” means a virtual machine or physical hardware device that accepts information in digital or
similar form and manipulates it for a specific result based on a sequence of instructions.
1.8
“CPU” means each distinct central processing unit within the Computer capable of independently
manipulating such information to produce the same specific result. For purposes of this Agreement, (i) all
CPUs on a Computer on which Software is installed shall be deemed to use 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 use the Software is less than the total number of CPUs on that Computer,
and (ii) when a CPU contains more than one processing core, each group of four (4) processing cores, in
aggregate across all Computers upon which Licensee has installed all or part the Licensed Software, shall be
deemed to be a CPU. For the avoidance of doubt, if Licensee installs and uses a Packager on one Computer and
the software necessary to create Content Licenses on a second Computer, a royalty shall be due according to its
number of CPUs on both Computers in aggregate, and if Licensee installs and uses both components on the
same Computer, then a license shall needed for that server according to its number of CPUs.
1.9
“Consumer” means an individual end user that receives Protected Content and obtains a Content
License in order to obtain access to and view the Protected Content on a supported Adobe Runtime.
1.10
“Content” means any formats or media that can be protected according to the Documentation and
supported for playback or execution by an Adobe Runtime.
1.11
"Content Encryption Key” means a cryptographic value for use in encrypting Content for secure
distribution and for use by an Adobe Runtime to decrypt Protected Content for access and use in accordance
with a Content License.
1.12
“Content License(s)” means metadata (stored on a computer and/or embedded in an electronic file
delivered to an Adobe Runtime) that (i) contains an encrypted Content Encryption Key and (ii) contains or
refers to usage rules for Protected Content designed to be enforced directly through Flash Access technology
incorporated into Adobe Runtimes.
1.13
“Content Policy” means metadata that contains usage rules for Protected Content.
1.14
“Content Protection Functions” means those aspects of the Licensed Software that are designed to
implement requirements of the Compliance and Robustness Rules and/or prevent unauthorized access to
Private Keys, Content Encryption Keys and Certificates or unauthorized access to or use of Protected Content
inconsistent with the access and usage rules contained in a Content License or Content Policy associated with
such Protected Content.
1.15
“Content Protection Update" shall mean an update to the Licensed Software that is designated as such
by Adobe because it alters the prior means for providing the Content Protection Functions in the Licensed
Software.
1.16
“Deliver” means to deliver or otherwise make available, directly or indirectly, by any means, Protected
Content to one or more Consumers.
1.17
“Documentation” means the user manuals and/or technical publications as applicable, relating to the
installation, use and administration of the Licensed Software that Adobe generally makes available.
1,18
“DRM Metadata” means a data structure that contains the URL of a License Server and may contain
the encrypted Content Encryption Key and/or a Content Policy.
1,19
"Highly Confidential Information" means Private Keys generated and controlled by the Licensee for
the purpose of creating Protected Content or issuing Content Licenses.
1.20
“Licensed Product” means the software solution for creating Protected Content, Content Licenses and
Content Policies developed by Licensee using the Licensed Software.
1.21
“License Server” means that portion of a Licensed Product that generates and issues Content Licenses.
1.22
“Licensed Software” means(a) the Adobe Flash Access software development kit and documentation
provided to Licensee by Adobe under this Agreement that combines Object Code, Sample Source and
Certificates for the sole purposes of creating Protected Content, Content Licenses and Content Policies; (b) any
updates and fix releases thereto that Adobe may provide to Licensee under this Agreement and (c) any other
documentation or source or object code provided by Adobe under this Agreement that is intended to assist
Licensee in development of the Licensed Product.
1.23
“Packager” means a software utility that can create Protected Content and DRM Metadata that is either
(i) derived from the Licensed Software; (ii) made available by Adobe under a separate license for non-content
protection purposes as part of HTTP Dynamic Streaming software and licensed hereunder for content
protection purposes in accordance with Section 2.1.3; or (iii) otherwise authorized or supported by Adobe, as
listed at http://www.adobe.com/products/flashaccess/ for creating Protected Content for consumption using
Adobe Runtimes.
1.24
"Private Key” means a cryptographic value generated by the Licensee and uniquely associated with a
Public Key.
1.25
“Public Key” means a cryptographic value generated by the Licensee and uniquely associated with a
Private Key, that is incorporated into a Certificate issued by Adobe when Licensee follows the Certificate
generation process described in the Documentation.
1.26
“Protected Content” means Content encrypted by a Content Encryption Key using a Packager.
1.27
“Sample Code” means sample software and sample applications in source code format, in each case
made provided with the Software solely for use with the Software.
2.
LICENSE AND RESTRICTIONS.
2.1. License for Licensed Software. Subject to the terms and conditions of this Agreement, Adobe hereby
grants to Licensee, for up to the total number CPUs for which Licensee has a purchased a valid license:
2.1.1
A non-exclusive, non-transferable, license to install and use the Licensed Software in
accordance with the Documentation solely to develop and use the Licensed Product for the purpose of
protecting and distributing Protected Content, Content Policies and Content Licenses for Licensee’s
own account.
2.1.2
A non-exclusive, non-transferable, license to make copies of the Documentation in connection
with its use of the Licensed 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.
2.1.3
A non-exclusive, non-transferable license to install and use, for purposes of creating Protected
Content, Packagers obtained from Adobe under a license other than this Agreement as part of the
HTTP Dynamic Streaming software. This license shall expressly control and override any restriction
on such use for content protection purposes contained in the Adobe license agreement under which
Licensee obtained the HTTP Dynamic Streaming software.
2.2. License Restrictions and Licensee’s Obligations. Licensee’s right to use the licenses in Section 2.1,
above, is limited by the following restrictions and subject to the following obligations:
2.2.1.
Compliance with Compliance and Robustness Rules; Audit Rights. Licensee shall ensure that
the Licensed Product comply with the Compliance and Robustness Rules at all times. In the event that
Adobe posts changes to the Compliance and Robustness Rules, Licensee shall be required to comply
with such changes as soon as commercially practicable, but in any event no later than six (6) months
after the date the changes were posted. Licensee shall be responsible for checking the web site listed in
Section 1.6 (Compliance and Robustness Rules) periodically so as to be aware of such changes. Adobe
may at its option notify Licensee via email or other electronic channel, but in no way will lack of such
notification exempt Licensee from the obligation to comply with the then-current rules within the
required period. Adobe’s right of audit under Section 14 of this Agreement shall also extend to
inspection of Licensee’s books, records, procedures and facilities necessary to verify Licensee’s
compliance with the Compliance and Robustness Rules.
2.2.2.
Content Protection Updates. In the event that Adobe delivers a Content Protection Update to
Licensee, Licensee shall apply such update to the Licensed Software, and discontinue using copies of the
Licensed Software that have not been updated, as soon as reasonably possible and shall provide notice
to Adobe if this will take more than ninety (90) calendar days.
2.2.3.
Use of Current Certificate. Each Certificate shall expire two (2) years from the date it is
generated by Adobe. Licensee shall be required to order new Certificates from Adobe or an authorized
reseller, as needed. Certificates may be subject to payment of a fee for each Certificate issued to
Licensee.
2.2.4.
Prohibited Use. Except as expressly authorized under this Agreement, Licensee is prohibited
from: (i) using the Licensed Software to deploy applications or services other than the Licensed
Product;(ii) using the Licensed Software to distribute Content in violation of applicable laws and
regulations, including copyright laws; or (iii) using the Licensed Software to protect any other formats
or media other than Content.
2.2.5.
No Circumvention. No element of the Licensed Software may be used to circumvent or defeat
the Content Protection Functions or other requirements of the Licensed Software, Documentation or
related technical specifications, provided hereunder. Licensee shall not (i) use Confidential
Information or Highly Confidential Information to circumvent the Content Protection Functions of
either the Licensed Software or any related Adobe software that is used to encrypt or decrypt digital
content for authorized consumption by users of the Licensed Software, or (ii) develop or distribute
products that are designed to circumvent the Content Protection Functions of the Licensed Software or
the content protection functions of any related Adobe software that is used to encrypt or decrypt digital
content for authorized consumption by users of the Licensed Software.
2.2.6.
No Modifications. No Reverse Engineering. Except as expressly set forth in Section 2.1.1,
Licensee shall not modify, port, adapt or translate the Licensed Software. Licensee shall not reverse
engineer, decompile, disassemble or otherwise attempt to discover the source code of the Licensed
Software.
2.2.7.
Platforms. Licensee shall deploy the Licensed Software solely on systems that are supported by
Adobe as set forth at the following URL (or successor URL), which may be revised by Adobe in its sole
discretion from time to time: http://www.adobe.com/products/flashaccess/.
2.2.8.
Open Source Software. Licensee will not directly or indirectly grant, or purport to grant, to
any third party any rights or immunities under Adobe’s intellectual property or proprietary rights that
will subject such intellectual property to an open source license or scheme in which there is or could be
interpreted to be a requirement that as a condition of use, modification and/or distribution, the
software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making
derivative works; or (iii) redistributable at no charge. Any violation of the foregoing provision shall
immediately terminate all of Licensee’s licenses and other rights to the Licensed Software granted under
this Product Appendix
2.2.9.
Compliance With Applicable Laws. Licensee shall comply with all applicable laws and
regulations and obtain all appropriate government approvals pertaining to the Licensed Product.
2.2.10. Confidential Treatment of Content Encryption Keys. Licensee shall treat Content Encryption
Keys as Confidential Information subject to the terms for confidentiality contained in Section 5 below,
except that Licensee shall have no further responsibility for Content Encryption Keys that have been
distributed to End Users in Content Licenses
2.3.
SAMPLE CODE. Licensee may modify the Sample Code solely for the purposes of developing and testing
Licensee’s own software applications. 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. No maintenance and support is provided for any Sample
Code.
2.4.
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.
2.5.
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
2.6.
OUTSOURCING. Licensee may sub-license use of the Licensed Software to a third party outsourcing or
facilities management contractor to operate the Licensed Product 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, including rights of inspection
and audit, as they relate to the use of the Licensed Software on the same basis as applies to Licensee; (c) such use
is only for the purpose of protecting and distributing Protected Content, Content Policies and Content Licenses
for Licensee’s own account 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.
OTHER RESTRICTIONS.
2.7.1.
No Modifications. No Reverse Engineering. Except for the Sample Code, 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.
2.7.2.
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 Servers 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 Servers. 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.
2.7.3.
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
Licensee’s rights in the Software; or (b) authorize any portion of the Software to be copied onto or accessed from
another individual’s or entity’s Computer or Virtual Server.
2.7.4.
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/flashaccess (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 Adobe’s sole discretion and Licensee is solely responsible and liable for checking
the website and complying with the third party notices.
2.7.5.
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.
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 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. 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.
HIGHLY CONFIDENTIAL INFORMATION. Notwithstanding Section 5 (Confidentiality), Private Keys shall
be subject to requirements applicable to Highly Confidential Information contained in the Compliance and
Robustness Rules and any updates thereto (the "Security Requirements"), together with the following
provisions:
6.1. "Authorized Employees” means only the individuals authorized to place or approve orders for
Certificates through the online registration process for Certificate ordering described in the
Documentation, all of whom must at all times be full-time employees of Licensee with a strict need to
have access to Highly Confidential Information in order to perform Licensee’s obligations or exercise
Licensee’s rights under this Agreement.
6.2. All Authorized Employees shall sign confidentiality agreements containing terms at least as restrictive
as those in this Section 6, including an obligation to comply with the Security Requirements, before
they are granted access to the Highly Confidential Information. Licensee shall promptly provide
Adobe with copies of such confidentiality agreements signed by the Authorized Employees if and
when Adobe requests such copies. Licensee is fully responsible for the conduct of its employees
(including Authorized Employees) who may in any way breach this Agreement. Licensee will, upon
request of Adobe, take all reasonable steps necessary to recover any Highly Confidential Information
and will bear the cost of such steps. Licensee agrees to notify Adobe in the event of any breach of the
terms of this Section 6, including breaches in its security. Licensee must cause each Authorized
Employee to strictly abide by their obligations under this Section 6 and the Security Requirements.
Licensee must use the same efforts to enforce the confidentiality obligations of each Authorized
Employee after the termination of his/her employment as Licensee uses to enforce its own confidential
information, such efforts of enforcement not to be less than reasonable efforts.
6.3. Without limitation to any requirement of this Section 6 and the Security Requirements, Licensee
agrees that it shall treat the Highly Confidential Information with at least the same degree of care as it
gives to the protection of its most sensitive confidential information, if any, and Licensee represents
that it exercises at least a high degree of care to protect its own such confidential information.
6.4. Licensee’s obligations with respect to the Highly Confidential Information shall remain in effect in
perpetuity, except as may be required by law or the order of a court or similar judicial or
administrative body.
7.
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 continue to use previous versions of the Software on Licensee’s
Computers and/or Virtual Servers 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.
8.
REVOCATION F CERTIFICATES.
Adobe shall have the right to take measures to revoke Certificates issued to Licensee in the event that Adobe
obtains or becomes aware of evidence satisfactory, in Adobe's sole discretion, to establish that one or more of the
following criteria are met:
(i) such Certificate or the Public Key associated with Licensee is being used without authorization by a
party other than the Licensee to which it was issued by Adobe;
(ii) the Private Key corresponding to a Public Key for which Adobe has issued a Certificate has been
made public, lost, stolen, intercepted or otherwise misdirected, disclosed;
(iii) revocation has been ordered by a court or similar judicial or administrative body of any
government;
(iv) the Agreement has been terminated by either party; or
(v) Licensee has requested or consented in writing to such expiration.
In the event that Adobe determines that any of the foregoing criteria have been met, Adobe shall take reasonable
steps to consult with Licensee prior to initiating such revocation to determine if Licensee can present evidence
satisfactory to Adobe, in Adobe’s sole discretion, that the relevant criteria have not been met and/or that
revocation is not necessary to prevent any material compromise to the security of Protected Content or of the
Content Protection Functions of the Licensed Software, or the content protection capabilities of any other
Adobe licensed software as applied to any digital content. Adobe shall not initiate such revocation prior to thirty
(30) days following notice of such consultation unless Adobe determines, in its sole discretion, that immediate
or earlier revocation is necessary to mitigate ongoing and material harm to the interests of distributors of digital
content protected using Adobe licensed software.
9.
WARRANTY
9.1.
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 Licensee’s exclusive remedy shall be
limited to either, at Adobe’s 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.
9.2.
DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY
ADOBE AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ADOBE’S, ITS AFFILIATES’ AND ITS
SUPPLIERS’ 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 LICENSEE’S
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.
10.
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 LICENSEE’S
JURISDICTION. ADOBE’S 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 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
11.
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; (c) or Singapore, if a license to the Software is obtained when
you are in a member state of the Association of Southeast Asian Nations, the People’s Republic of China
(including Hong Kong S.A.R. and Macau S.A.R.), Taiwan or the Republic of Korea; or (d) 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. When Singapore law applies, any dispute
arising out of or in connection with this agreement, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the
Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which
rules are deemed to be incorporated by reference in this section. There shall be one arbitrator, selected jointly by
the parties. If the arbitrator is not selected within thirty (30) days of the written demand by a party to submit to
arbitration, the Chairman of the SIAC shall make the selection. The language of the arbitration shall be
English. Notwithstanding any provision in this agreement, Adobe or you may request any judicial,
administrative, or other authority in any other jurisdiction to order any provisional or conservatory measure,
including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or
arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce
specific terms that are suitable for provisional remedies. 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.
12.
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.
13.
NOTICE TO U.S. GOVERNMENT END USERS.
13.1.
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 951102704, USA
13.2.
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 6060, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall
be incorporated by reference in this Agreement.
14.
COMPLIANCE WITH LICENSES; AUDIT. 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 Licensee’s offices or hosting location and
shall not unreasonably interfere with Licensee’s 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 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
15.
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.
16.
SPECIFIC PROVISIONS AND EXCEPTIONS. This Section 16 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 16 is in conflict with any other term or condition in this agreement, this
Section 16 will supersede such other term or condition.
16.1.
Limited Warranty for Users Residing in Germany or Austria. If Licensee obtained the Software directly
from Adobe in Germany and Austria, then Section 9 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 ADOBE’S 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
16.2.
Limitation of Liability for Users Residing in Germany and Austria.
16.2.1. If Licensee obtained the Software directly from Adobe in Germany and Austria, then Section 10 does
not apply. Instead, subject to the provisions in this Section 16.2, 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.
16.2.2. 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.
16.2.3. 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.
17.
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), 6 (Highly Confidential Information), 9.2 (Disclaimer), 10
(Limitation of Liability), 11 (Governing Law), 12 (General Provisions), 13 (Notice to U.S. Government End
Users), 15 (Third Party Beneficiary) and 17 (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 Licensee’s jurisdiction.
Adobe and Flash are either registered trademarks or trademarks of Adobe Systems Incorporated in the United
States and/or other countries.
Flash Access_EULA-en_08272010_1501
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