Lizenzvertrag f r Publisher's Kit

Lizenzvertrag f r Publisher's Kit
Adobe® Acrobat® Publisher's Kit License Agreement
for 100 Reproductions
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING, REPRODUCING
AND/OR DISTRIBUTING ALL OR ANY PORTION OF THE SOFTWARE YOU (“LICENSEE”) ACCEPT ALL THE
TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON:
USE, TRANSFERABILITY, WARRANTY AND LIABILITY. YOU AGREE THAT THIS AGREEMENT IS
ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT
AGREE, DO NOT USE , REPRODUCE OR DISTRIBUTE THIS SOFTWARE. IF YOU ACQUIRE THIS
SOFTWARE ON TANGIBLE MEDIA (E.G., CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE
AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU
ORIGINALLY PAID IF YOU: (A) DO NOT USE, REPRODUCE OR DISTRIBUTE THE SOFTWARE AND (B)
RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN
THIRTY (30) DAYS OF THE PURCHASE DATE.
This Adobe Acrobat Publisher’s Kit License Agreement for 100 Reproductions (the “Agreement”) provides additional
rights not provided in the Adobe Electronic End User License Agreement accepted upon installation of the Adobe
Software. All terms and conditions of the Adobe End User License Agreement remain unchanged and in full effect.
1. Definitions. “Adobe Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which
this Agreement is provided, including but not limited to (i) Adobe or third party software; (ii) digital images, stock
photographs, clip art or other artistic works (“Stock Files”); (iii) related explanatory written materials ("Documentation");
and (iv) fonts; and (b) modified versions, upgrades, updates, additions, and copies of the Software, if any, licensed to you by
Adobe (collectively, “Updates”). This Agreement is entered into by ADOBE SYSTEMS INCORPORATED, a Delaware
corporation having a principal place of business at 345 Park Avenue, San Jose, CA 95110-2704 (“Adobe Systems”), Adobe
Systems Software Ireland Limited, Unit 3100, Lake Drive, City West Campus, Saggart D24, Republic of Ireland, a company
organized under the laws of Ireland and an affiliate and licensee of Adobe Systems Incorporated ("Adobe Ireland") (both
individually in their respective countries and collectively referred to as “Adobe”), and the Licensee. Adobe Systems is the
owner and developer of the Adobe Software, and licenses the Adobe Software in the United States, Canada and Mexico (the
“Territory”). Adobe Ireland licenses the Adobe Software in all other countries. Licensee is a systems integrator, value added
reseller or publisher, who wishes to use the Adobe Software so as to make it available to end users under the terms and
conditions of this Agreement. “End Users” shall mean those parties to whom Licensee distributes the Adobe Software for
internal business purposes only.
2. License Terms.
(a) Distribution.
By Adobe Systems. Adobe Systems hereby grants to Licensee a royalty bearing, nontransferable, nonexclusive license to (i)
reproduce, without modification, up to and not more than one hundred (100) copies of the Adobe Software in executable
form and (ii) distribute to End Users in the Territory the Adobe Software bundled or integrated with Portable Document
Format (“PDF”) files or Licensee’s own value added software for the purpose of creating or allowing end users to view PDF
files, provided that End Users comply with the terms of the Adobe End User License Agreement accompanying the Adobe
Software.
By Adobe Ireland. Adobe Ireland hereby grants to Licensee a royalty bearing, nontransferable, nonexclusive license to (i)
reproduce, without modification, up to and not more than one hundred (100) copies of the Adobe Software in executable
form and (ii) distribute to End Users in all countries outside the Territory the Adobe Software bundled or integrated with
Portable Document Format (“PDF”) files or Licensee’s own value added software for the purpose of creating or allowing
End Users to view PDF files, provided that End Users comply with the terms of the End User License Agreement
accompanying the Adobe Software.
(b) License Restrictions. Licensee agrees not to distribute Adobe Software by rental or lease. LICENSEE AGREES NOT
TO ALTER, REVERSE ENGINEER, TRANSLATE, DISASSEMBLE, DECOMPILE, OR OTHERWISE ATTEMPT TO
DERIVE SOURCE CODE TO THE ADOBE SOFTWARE IN WHOLE OR IN PART. LICENSEE AGREES NOT TO
ALTER ANY FILES INCLUDED WITH COPIES OF THE ADOBE SOFTWARE DELIVERED HEREUNDER. Nothing
contained in this Agreement shall be interpreted so as to exclude or prejudice the rights (if any) of the Licensee or any End
User under any applicable mandatory laws. To the extent any applicable mandatory laws (such as, for example, national
laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give Licensee the right to perform
any of the foregoing activities without Adobe’s consent in order to gain certain information about the Adobe Software for
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purposes specified in the respective statutes, Licensee shall provide Adobe advanced written notice and an opportunity to
provide information regarding the Adobe Software (e.g., interoperability) prior to exercising any such statutory rights. Only
if and after Adobe, at its sole discretion, partly or completely denies Licensee’s request, shall Licensee exercise its statutory
rights.
(c) License Fee and Reproduction Limits. Upon receipt by Adobe Systems or Adobe Ireland, as applicable, of a fully
executed copy of this Agreement and payment by Licensee of the nonrefundable license fees, Licensee is granted the right to
reproduce the Adobe Software in accordance with the terms and conditions of this Agreement. Licensee shall not reproduce
or distribute any copy of the Adobe Software for which a corresponding license fee has not been paid. If Licensee distributes
and/or reproduces more than one hundred (100) copies of the Adobe Software, including internal use, demonstration and
evaluation copies, Licensee shall notify Adobe Systems or Adobe Ireland, as applicable, and purchase additional Adobe
Software licenses to comply with the terms of this Agreement. Failure to do so will be considered a breach of this Agreement
and unauthorized use of Adobe Software.
(d) Taxes and Duties. Licensee agrees to pay, and to indemnify and hold Adobe harmless from, any sales, use, excise, import
or export, value added, consumption, or similar tax, not based on Adobe's net income, as well as the collection or
withholding thereof, including penalties and interest, as well as any costs associated with the collection or withholding
thereof, and all government permit or license fees and all customs, duty, tariff and similar fees levied upon the delivery of the
Adobe Software and other deliverables, and any costs associated with the collection of any of the foregoing items. Licensee
shall be responsible for obtaining, at its expense, all required import licenses, permits or other governmental orders. If a
resale certificate or other certificate, document or other evidence of exemption or payment or withholding of taxes by
Licensee is required to exempt the distribution or licensing of the Adobe Software from any such liability or to enable Adobe
to claim any tax exemption, credit, or other benefit, Licensee will promptly furnish such certificate or document to Adobe.
(e) Right of Audit. Licensee shall maintain an accurate record of the number of copies of Adobe Software reproduced and
shipped each quarter. Adobe shall have the right to have an audit no more than one time per year of all the relevant records of
Licensee conducted by Adobe or an independent certified public accountant whose fee is paid by Adobe. Any such audit
shall be conducted during regular business hours at Licensee's offices and in such a manner as not to unreasonably interfere
with Licensee's normal business activities. If such inspections should disclose any unlicensed use, Licensee shall promptly
pay Adobe the applicable amount due, together with the audit costs and interest on past due amounts at the rate of 1-1/2% per
month or the highest interest rate allowed by law, whichever is lower, from the date on which such amount became due to
Adobe from Licensee.
3. Licensee's Obligations.
(a) Intellectual Property Notices. Each copy of Adobe Software shall contain the same intellectual property notices on the
media and within the code that appear on the media and within the code of such software and all of Licensee’s marketing
collateral and advertising for Adobe Software must include all applicable copyright and trademark notices of Adobe.
(b) Sublicensing. Each copy of Adobe Software distributed by Licensee must include the electronic Adobe End User
License Agreement included in the master copy of the Acrobat Software.
(c) Serial Numbers. If provided in the accompanying package and/or requested by Adobe, Licensee agrees to include an
electronic registration card and a serial number in all copies of Adobe Software reproduced or distributed by Licensee.
Licensee may continue to use the serial number included with this copy of the Adobe Software if and when Licensee obtains
additional Adobe Software licenses. Adobe reserves the right to change the licensing program requirements and serial
number requirements from time to time.
(d) End User Support. Licensee is solely and exclusively responsible for supporting End Users to whom Licensee distributes
the Adobe Software. Accordingly, Licensee will provide to Adobe technical support contact information for Adobe to
forward to Licensee End Users seeking technical support. Licensee agrees to provide written notice to Adobe as necessary
detailing any changes in such technical support contact information. Licensee hereby grants Adobe permission to forward
such technical support contact information on to Licensee End Users.
(e) U.S. Government Restricted Rights. Licensee will identify the Adobe Software in all proposals and agreements with the
United States Government or any contractor therefore as “commercial computer software” and “commercial computer
software documentation.” All agreements with the United States Government shall be subject to the following:
The Software Products and User Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101,
consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are
used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, consistent with 48 C.F.R. §12.212 and 48 C.F.R.
§§227.7202-1 through 227.7202-4, as applicable. The Software Products and User Documentation are being provided to U.S.
Government End Users (A) only as a Commercial Item, and (B) with only those rights as are granted to all other End Users
pursuant to the terms and conditions of the Adobe End User License Agreement.
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4. Intellectual Property Rights. Adobe (and its suppliers) retains exclusive ownership of Adobe Software, the trademarks
used in connection therewith, and all intellectual property rights embodied therein and related thereto. Licensee must take all
reasonable measures to protect Adobe's intellectual property rights in Adobe Software. Except as expressly provided herein,
Licensee is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or
unregistered), or any other rights, franchises or licenses with respect to Adobe Software.
5. Warranty.
(a) Limited Warranty. Adobe Systems and/or Adobe Ireland, each in its respective countries, warrants the Adobe Software
TO END USERS ONLY pursuant to the terms and conditions of the Adobe End User License Agreement and no warranty,
condition, representation or term is extended to Licensee except as provided below.
(b) Limitations and Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE
EXPRESS WARRANTY SET FORTH IN THE END USER LICENSE AGREEMENT, ADOBE SYSTEMS AND ADOBE
IRELAND EACH EXPRESSLY DISCLAIM ALL WARRANTIES CONDITIONS, REPRESENTATIONS OR OTHER
TERMS EXPRESSED OR IMPLIED WHETHER BY CUSTOM, USAGE, CONTRACT, TORT OR OTHERWISE (IN
EACH CASE INCLUDING NEGLIGENCE) BY ANY COUNTRY OR JURISDICTION, RELATING TO THE ADOBE
SOFTWARE, AND FURTHER EXPRESSLY EXCLUDE WARRANTY OF NONINFRINGEMENT, INCLUDING
WITHOUT LIMITATION ANY WARRANTY, CONDITION, REPRESENTATION OR OTHER TERM OF
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NO PERSON IS
AUTHORIZED TO MAKE ANY OTHER WARRANTY, CONDITION, REPRESENTATION OR OTHER TERM
CONCERNING THE PERFORMANCE OF THE SOFTWARE OTHER THAN AS PROVIDED IN THE ADOBE END
USER LICENSE AGREEMENT. LICENSEE SHALL MAKE NO SUCH WARRANTY CONDITION,
REPRESENTATION OR OTHER WARRANTY OR TERM WHATSOEVER, EXPRESS OR IMPLIED, ON BEHALF OF
ADOBE SYSTEMS OR ADOBE IRELAND.
(c) Limitation of Liability. As a separate consideration for the license granted herein, Licensee agrees that the total liability
of Adobe Systems and Adobe Ireland to Licensee for any claims under or arising from this Agreement, whether in contract,
tort, or otherwise (in each case including negligence), shall be limited to the amount of the license fees payable by Licensee
to Adobe Systems or Adobe Ireland, as applicable, under this Agreement in the twelve (12) months preceding such claim.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ADOBE SYSTEMS OR ADOBE IRELAND’
LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THEIR NEGLIGENCE.
NOTHING IN THIS AGREEMENT SHALL AFFECT THE STATUTORY RIGHTS OF ANY PERSON CONTRACTING
AS A CONSUMER
(d) Indemnity. Licensee agrees to indemnify and hold Adobe Systems and Adobe Ireland harmless from any claims,
damages, losses or costs (inclusive of Adobe Systems and Adobe Ireland attorneys' fees) made against Adobe Systems or
Adobe Ireland as a result of misrepresentation or omission on the part of Licensee or representatives of Licensee.
6. Term and Termination.
(a) Term. The term of this Agreement shall commence as of the date the Adobe Software is delivered to Licensee and,
unless terminated as provided herein, shall continue until one hundred (100) copies of the Adobe Software are reproduced
and distributed by Licensee.
(b) Termination With Cause. Adobe Systems or Adobe Ireland may terminate this Agreement upon ten (10) days written
notice of a material breach of this Agreement if such breach is not cured within such ten (10) day period. Notwithstanding the
foregoing, Adobe Systems or Adobe Ireland may terminate this Agreement immediately, upon written notice, for breach of
Sections 2 (License Terms), 3 (Licensee'sObligations). Obligations), or 4 (Intellectual Property Rights). (c) Rights Upon
Termination. Upon termination of this Agreement: (i) Licensee shall immediately discontinue ALL uses of Adobe Software
and documentation under this Agreement. All payments normally due to Adobe Systems and Adobe Ireland, as applicable,
by Licensee shall be paid in full immediately upon termination or expiration of this Agreement. Sections 2(b), 2(c), 2(e),
3(d), 4, 5, 6(c), 7, 8 and 9 shall survive any termination or expiration of this Agreement; and (ii) Each party understands that
the rights of termination or expiration hereunder are absolute. To the extent permitted by applicable law, (A) no party hereto
shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by another arising
from, or incident to, any termination of this Agreement by such party or any expiration hereof which complies with the terms
of the Agreement, and (B) Licensee agrees to waive the benefit of any law or regulation providing compensation to Licensee
arising from the termination or failure to renew this Agreement.
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7. Damages Waiver. NEITHER ADOBE SYSTEMS NOR ADOBE IRELAND WILL BE LIABLE FOR ANY LOSS OF
USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY KIND OR ANY LOST PROFITS REGARDLESS OF THE FORM OF ACTION WHETHER IN
CONTRACT, TORT OR OTHERWISE (INCLUDING IN EACH CASE NEGLIGENCE), STRICT PRODUCT
LIABILITY OR OTHERWISE, WHETHER OR NOT ADOBE SYSTEMS OR ADOBE IRELAND HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
8. Notices. All notices or reports permitted or required under the Agreement shall be in writing and shall be by personal
delivery, private overnight delivery service telegram, telex, telecopier, facsimile transmission with confirming hardcopy
sent via post, via reputable international courier, or by certified or registered mail, return receipt requested, and shall be
deemed given upon personal delivery, five (5) days after deposit in the mail, as of the date of delivery shown in the
business records of the reputable international courier, or upon acknowledgment of receipt of electronic transmission.
Notices relating to Licensee’s rights or obligations of Adobe Software in Canada, the United States and Mexico will be
delivered to Adobe Systems and notices relating to Licensee’s rights or obligations relating to Adobe Software in all other
countries will be delivered to Adobe Ireland. If notice is sent to Adobe Systems or Adobe Ireland, it shall be sent to the
attention of Corporate Counsel.
9. Miscellaneous. This Agreement shall be governed in all respects by the laws of the United States of America and by
the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within
California between California residents. Licensee hereby consents to the exclusive jurisdiction and venue in the state and
federal courts sitting in the State of California. The parties agree that the United Nations Convention on Contracts for the
International Sale of Goods is specifically excluded from application to this Agreement. If either party employs attorneys
to enforce any rights arising out of or related to this Agreement, the prevailing party shall be entitled to recover its
reasonable attorneys’ fees, costs, and other expenses. Licensee may not assign this Agreement without the prior written
approval of Adobe Systems and/or Adobe Ireland, as applicable for changes in their respective countries. Licensee
acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and
technical data of United States origin, including Adobe Software. Licensee agrees that it will not export or re-export
Adobe Software, or any portion of Adobe Software in any form, without the appropriate United States and foreign
licenses. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or
subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and
signed by an authorized representative of the waiving party. No person other than a party to this Agreement shall be
entitled to enforce any term of it whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise save
that where an agreement is entered into pursuant to which any rights and/or obligations contained in this Agreement are
assigned or novated to a third party in accordance with this Section 9, nothing in this sub-Section shall, of itself, operate
to prevent the assignee or novatee from taking the benefit of and enforcing any rights so assigned or novated. If any
provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect. This Agreement shall not be construed as creating a
partnership, joint venture or agency relationship or as granting a franchise. This Agreement completely and exclusively
states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals,
agreements, or other communications between the parties, oral or written, regarding such subject matter provided that
nothing in this Agreement shall limit or exclude Adobe Systems or Adobe Ireland’ liability for fraudulent
misrepresentation or any misrepresentations as to any fundamental matter relating to this Agreement. This Agreement
shall not be modified except by a subsequently dated written amendment or appendix signed on behalf of Adobe Systems,
Adobe Ireland and Licensee by their duly authorized representative and any provision of a purchase order purporting to
supplement or vary the provisions hereof shall be void.
10. JURISDICTION SPECIFIC EXCEPTIONS TO TERMS ABOVE
The disclaimers, limitations or exclusions of liability provided for under Sections 5 and 7 hereinabove shall not be applicable
for parties established in France to claims in tort or in cases of gross negligence or non compliance with a substantial
contractual obligation. The limitations under Sections 5 and 7 do not apply to any mandatory liability under French law on
defective products.
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If this Agreement is entered into with any party domiciled in Germany, Section 5 (c) shall be deleted in its entirety and
replaced with the following:
Adobe may be liable without limitation for damages you have incurred under or in connection with this Agreement only if
the damage has been caused by the willful or grossly negligent act of Adobe or its agents. In addition, Adobe is liable only
to the extent of the typically foreseeable damage for such damages which have been caused by any other negligent breach of
a substantial contractual duty by Adobe or its agents. These aforementioned limitations apply irrespective of their legal
basis, in particular with regard to any pre-contractual or auxiliary contractual claims. The limitations shall not apply,
however, to any mandatory liability under the applicable German Product Liability Act, nor to any damage which is caused
due to the breach of an express warranty to the extent that such express warranty was intended to protect the user against the
specific damage incurred. The obligations under the second sentence shall not apply if any damage is caused by your having
altered the Adobe Software, or if the respective data carriers (media) have been damaged by accident, misuse or
inappropriate use, of if the damage concerned has been caused by use of the Adobe Software in connection with other
software for which the Adobe Software was not designated to be used according to the Documentation..
To the extent that English law is found to apply to this Agreement:
Nothing in this Agreement shall exclude or limit Adobe's liability for any breach of the obligations implied by S.12 Sale
of Goods Act 1979 or S.2 Supply of Goods and Services Act 1982.
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