GENERAL TERMS (2014v3)
Contents
1. without the prior written consent of Adobe Governing Law Venue This Agreement is governed by and construed under the laws of the state of California without regard to any conflict of law rules or principles and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods The Parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in the County of Santa Clara state of California provided however Adobe will have the right to pursue claims against Customer in any other jurisdiction worldwide to enforce its rights under this Agreement or to enforce its intellectual property rights Force Majeure Neither Party is liable for failure to perform its obligations under this Agreement except for any payment obligations to the extent that performance is delayed prevented restricted or interfered with as a result of any causes beyond its reasonable control including acts of God terrorism labor action fire flood earthquake failure of third party providers denial of service attacks and other malicious conduct utility failures power outages or governmental acts orders or restrictions Injunctive Relief Actual or threatened breach of certain sections of this Agreement such as without limitation provisions on intellectual property including ownership license privacy data protection and confidentiality may cause immediate irreparable harm that is2. granted to all other end users pursuant to the terms and conditions herein Unpublished rights reserved under the copyright laws of the United States ADOBE GENERAL TERMS 2014v3 Page 8 of 8
3. on behalf of Customer on hardware designated by Customer as set out in the Sales Order and identified as On premise Software in the applicable PDM V Party means Adobe or Customer as applicable W Products and Services means one or more of the following procured by Customer On premise Software On demand Services Managed Services or Professional Services as set out in the Sales Order X Product Descriptions and Metrics or PDM means the Product Descriptions and Metrics document ADOBE GENERAL TERMS 2014v3 Page 2 of 8 that describes the Products and Services and the terms that apply to their use Y Professional Services means any consulting training implementation or technical services provided by Adobe to Customer as set out in the Adobe Professional Services section of the Sales Order Z Sales Order means the sales order form statement of work purchase authorization letter or other written document for the Products and Services that is either A executed between Adobe and Customer or B if no such documents are executed between Adobe and Customer and Customer is purchasing through an Adobe Partner executed between Customer and the Adobe Partner 2 PAYMENT OF FEES This section 2 Payment of Fees applies only if Customer orders the Products and Services directly from Adobe If Customer orders the Products and Services from an Adobe Partner the payment terms are as
4. A Adobe GENERAL TERMS 2014v3 1 INTRODUCTION 1 1 1 2 Agreement and Order of Precedence A reference to Agreement means A the Enterprise Licensing Terms consisting of 1 these General Terms 2 the applicable exhibits and 3 the applicable Product Descriptions and Metrics and B the Sales Order If there is any inconsistency between any of the above parts the part listed later will prevail to the extent of the inconsistency over a part listed earlier Definitions A B C D E F G Adobe means one or both of the following 1 If the Products and Services are licensed in the United States Canada Mexico United States territories and possessions and United States military bases wherever located Adobe Systems Incorporated a Delaware corporation of 345 Park Avenue San Jose California 95110 USA 2 Ifthe Products and Services are licensed in all other countries Adobe Systems Software Ireland Limited an Irish company of 4 6 Riverwalk Citywest Business Campus Dublin 24 Ireland Adobe Partner means an entity that is appointed by Adobe to process orders from end users or a reseller of Products and Services to end users Adobe Technology means technology owned by Adobe or licensed to Adobe by a third party including the Products and Services Reports software tools algorithms software in source and object forms user inte
5. Adobe s reasonable collection costs Customer must pay the undisputed portions of Adobe s invoice as required by this Agreement 2 4 Taxes Prices do not include applicable taxes The following applies only if Customer orders the Products and Services directly from Adobe Adobe will invoice Customer for any applicable taxes and Customer must pay these taxes Where applicable Customer must provide a tax exemption claim to Adobe before placing an order 3 DELIVERY On premise Software is deemed to be delivered and accepted by Customer on the earlier of the date the On premise Software is made available for electronic download or if applicable the date that Adobe ships the tangible media e g CD or DVD containing the On premise Software FOB origin On demand Services or Managed Services are deemed to be delivered and accepted on the License Term start date 4 OUTSOURCING AND THIRD PARTY ACCESS 4 1 Use by Affiliates Customer may allow its Affiliates to use and access the Products and Services only if and as specified in a Sales Order 4 2 Outsourcing and Third Party Access Customer may allow a third party contractor to use and access the Products and Services solely to operate the Products and Services on Customer s behalf but only if A upon Adobe s request Customer provides Adobe with the identity of the contractor and the purpose for the contractor s use or access to the Products and Services and B the use or acces
6. agreed between Customer and the Adobe Partner 2 1 Payment Customer must pay the fees according to the payment terms in the Sales Order All invoices will only be delivered electronically to Customer Adobe may charge interest at a monthly rate equal to the lesser of 1 per month or the maximum rate permitted by applicable law on any overdue fees from the due date until the date the overdue amount plus applicable interest is paid in full Any fees that are unpaid as of the date of termination or expiration will be immediately due and payable Customer must provide a detailed remittance advice with each payment to Adobe via email to sjar adobe com no later than the date of the payment If Customer is not a publicly traded corporation upon Adobe s request Customer will provide the necessary financial documents to allow Adobe to ascertain the credit worthiness of Customer 2 2 Failure to Pay If Customer fails to pay any amount due under this Agreement within 15 days of the date of Adobe s notice of Customer s failure to pay Adobe may in its sole discretion terminate this Agreement or the applicable Sales Order or suspend or restrict provision of the Products and Services 2 3 Disputes If Customer believes in good faith that Adobe has incorrectly billed Customer Customer must contact Adobe in writing within 30 days of the invoice date specifying the error Unless Customer has correctly notified Adobe of the dispute Customer must reimburse
7. ces or On premise Software as applicable paid for by Customer P License Metric means each of the per unit metrics specified by Adobe concerning the licensed quantities in the Sales Order to describe the scope of Customer s license to use the Products and Services Q License Term means the duration of the license granted for the On demand Services Managed Services or On premise Software as applicable as specified in the Sales Order or any shorter term arising from a termination of this Agreement R Losses means any damages losses costs expenses or liabilities incurred by a person or entity S Managed Services means the enterprise solutions hosted by or on behalf of Adobe and Distributed Code where applicable in a single tenant environment as set out in the Sales Order and identified as Managed Services in the applicable PDM Adobe may use virtualization technologies at different layers to mimic the concept of dedicated resources e g processing networking message center servers etc to create a single tenant environment for Customer T On demand Services means the technology services provided by Adobe and hosted by or on behalf of Adobe in a multi tenant environment and Distributed Code where applicable as set out in the Sales Order and identified as On demand Services in the applicable PDM U On premise Software means the Adobe software that is deployed by or
8. difficult to calculate and cannot be remedied by the payment of damages alone Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach Notices Any notice given under this Agreement must be in writing by email to the following addresses or addresses notified in writing by either Party A to Adobe ContractNotifications adobe com and B to Customer at Customer s email address stated on the Sales Order or if Customer s Sales Order is with an Adobe Partner at Customer s registered address A notice is taken to have been received by email 3 hours after the time sent as recorded on the device from which the sender sent the email unless the sender receives an automated message that the email has not been delivered No Agency Nothing in this Agreement is intended to constitute a fiduciary relationship agency joint venture partnership or trust between the Parties No Party has authority to bind the other Party Third Party Beneficiaries Customer acknowledges and agrees that Adobe s licensors are third party beneficiaries of this Agreement with the right to enforce the obligations in this Agreement directly against Customer Customer s Purchase Order Any terms or conditions in Customer s purchase order or any other related documentation submitted by or on behalf of Customer to Adobe or any other party such as an Adobe Partner do not form part of this Agr
9. e requested by Adobe for the defense or settlement as applicable of the Infringement Claim 3 provide Adobe with the exclusive right to control and the authority to settle the Infringement Claim or ADOBE GENERAL TERMS 2014v3 Page 5 of 8 8 4 4 refrain from making admissions about the Infringement Claim without Adobe s prior written consent Sole and Exclusive Remedy The remedies in this section 8 Indemnification are Customer s sole and exclusive remedies and Adobe s sole liability regarding the subject matter giving rise to any Claim that the Products and Services infringe or misappropriate any third party s intellectual property rights 9 LIMITATION OF LIABILITY 9 1 9 2 LIMITATION OF DAMAGES A In no event is either Party liable for any of the following arising out of or concerning this Agreement however caused special indirect moral consequential incidental punitive or exemplary damages loss of profits use or revenue business interruption or loss or corruption of data B The maximum aggregate liability of each Party for each and all Claims individually and together under or relating to this Agreement or its subject matter is limited to an amount equal to the aggregate of the fees that must be paid by Customer under this Agreement during the 12 months before the initial Claim C Sections 9 1 A and 9 1 B Limitation of Liability of these General Terms 1 apply regardless of the form o
10. eement and are void unless otherwise expressly agreed in writing and signed by both Customer and Adobe Waiver Modification Neither Party s waiver of the breach of any provision constitutes a waiver of that provision in any other instance This Agreement may not be modified nor any rights under it waived in whole or in part except in writing signed by the Parties Entire Agreement This Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements understandings proposals discussions negotiations ADOBE GENERAL TERMS 2014v3 Page 7 of 8 11 11 11 12 11 13 11 14 11 15 representations and warranties both written and oral regarding the subject matter Counterpart This Agreement or a component may be executed in one or more counterparts each of which constitutes an original and all of which taken together constitutes the same agreement Each Party may sign this Agreement using an electronic or handwritten signature which are of equal effect whether on original or electronic copies Severability If any term of this Agreement is held invalid or unenforceable for any reason the remainder of the term and this Agreement will continue in full force and effect Trade Rules Customer acknowledges that the Products and Services may be subject to the trade control laws and regulations of the United States and other national governments and Customer will compl
11. f the breach to the breaching Party If the breach is not cured within 30 days of the notice date the non breaching Party may immediately terminate this Agreement in whole or in part B Breach of Confidentiality Provisions If a Party is in breach of any confidentiality provisions of this Agreement the non breaching Party may terminate this Agreement in whole or in part immediately by giving the breaching Party written notice of the breach C Other Breaches Adobe may terminate this Agreement in whole or in part immediately upon written notice to Customer if 1 required by law or 2 Customer breaches section 7 2 No Modifications of these General Terms 6 3 Survival The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration including the provisions that deal with the following subject matters definitions payment obligations confidentiality term and termination effect of termination intellectual property license compliance limitation of liability privacy content monitoring and the General Provisions section in these General Terms ADOBE GENERAL TERMS 2014v3 Page 4 of 8 7 INTELLECTUALPROPERTY 7 1 Ownership Adobe and its licensors own the Adobe Technology 7 2 No Modifications Customer must not modify create derivative works of adapt translate reverse engineer decompile disassemble or otherwise attempt to d
12. her Adobe Technology used in conjunction with the Products and Services A beyond the quantity that was legitimately licensed or B in any way not permitted under this Agreement so that additional fees apply Customer must pay the ADOBE GENERAL TERMS 2014v3 Page 6 of 8 additional license fees and any applicable related maintenance and support fees based on Adobe s then current country specific list price within 30 days of invoice date If use deployment or installation exceeds 5 of that which is permitted under this Agreement Customer must pay Adobe s reasonable costs of conducting the verification in addition to paying the additional fees 11 GENERAL PROVISIONS 11 1 11 2 11 3 11 4 11 5 11 6 11 7 11 8 11 9 11 10 Assignment A Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer upon written notice to Adobe if the assignment does not expand the scope of the license granted in the Products and Services B Adobe may assign this Agreement or a part of it to its Affiliates or a surviving person under a merger or acquisition of Adobe or the assets of the business to which this Agreement relates upon written notice to Customer C Except as provided in this section 11 1 Assignment of these General Terms Customer may not assign voluntarily by operation of law or otherwise any rights or obligations under this Agreement
13. iscover the source code in any Adobe Technology These restrictions will not apply to the extent they limit any non waivable right Customer may enjoy under applicable law 8 INDEMNIFICATION 8 1 Adobe s Duty to Indemnify Adobe will defend any third party Claim against Customer during the License Term to the extent the Claim alleges that A the Indemnified Technology directly infringes the third party s patent copyright or trademark or that B Adobe has misappropriated the third party s trade secret Infringement Claim Adobe will pay Customer the Losses that are directly attributable to an Infringement Claim and are either finally awarded by a court of competent jurisdiction against Customer or agreed to in a written settlement agreement signed by Adobe 8 2 Adobe s Response In the defense or settlement of any Infringement Claim Adobe may at its sole option and expense A procure for Customer a license to continue using the Indemnified Technology under the terms of this Agreement B replace or modify the allegedly infringing Indemnified Technology to avoid the infringement or C terminate Customers license and access to the Indemnified Technology or its infringing part and refund 1 in the case of On demand Services Managed Services or On premise Software licensed for a limited term any prepaid unused fees as of the date of termination or 2 in the case of On premise Software licensed for a perpetual te
14. on H Customer means the entity identified in the Sales Order as Customer or otherwise identified in the Sales Order as the end user customer I Development Software means On premise Software licensed for use in a non production technical environment solely for internal development and testing authorized under the PDM J Distributed Code means HTML tags JavaScript code object code plugins SDKs APIs or other code provided by Adobe for use of the On demand Services or Managed Services K Documentation means A for On premise Software the technical user manual describing the features and functionalities of the applicable On premise Software as provided by Adobe and generally available in PDF format in the software or via www adobe com and B for On premise Software that does not have a technical user manual Managed Services or On demand Services the description of the software or service contained in the PDM applicable to the service or software Documentation does not include any forum or content contributed by any third party L Effective Date means the effective date stated in the Sales Order M Enterprise Licensing Terms is described in section 1 1 of these General Terms N Evaluation Software means On premise Software licensed for internal evaluation purposes in a non production environment O Indemnified Technology means On demand Services Managed Servi
15. r source of Claim or Loss whether the Claim or Loss was foreseeable and whether a Party has been advised of the possibility of the Claim or Loss and 2 do not apply in any breach of any confidentiality provisions of this Agreement Customer s use of Adobe Technology beyond the scope of any license granted under this Agreement or Customer s failure to pay any amounts owing to Adobe under this Agreement IMPLIED WARRANTIES To the maximum extent permitted by law and except for the express warranties in this Agreement Adobe provides the Products and Services on an as is basis Adobe its Affiliates and third party providers disclaim and make no other representation or warranty of any kind express implied or statutory including representations guarantees or warranties of merchantability fitness for a particular purpose title non infringement or accuracy Customer acknowledges that A neither Adobe its Affiliates nor its third party providers controls Customer equipment or the transfer of data over communications facilities including the Internet B the Products and Services may be subject to limitations interruptions delays cancellations and other problems inherent in the use of the communications facilities including search engines and social media channels and C it is fully responsible to install appropriate security updates and patches Adobe its Affiliates and its third party providers are not responsible for any interr
16. rface designs architecture toolkits plug ins objects and Documentation network designs processes know how methodologies trade secrets and any related intellectual property rights throughout the world and suggestions made to Adobe that are incorporated into any of the foregoing which will be deemed assigned to Adobe as well as any of the derivatives modifications improvements enhancements or extensions of the above whenever developed Affiliate means for a Party any other entity that controls is controlled by or under common control with the Party For the purposes of this definition the term control means the direct or indirect power to direct the affairs of the other entity through at least 50 of the shares voting rights participation or economic interest in this entity Claim means a claim action or legal proceeding made against a person or entity however arising and whether present or future fixed or unascertained actual threatened or contingent Computer means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions consistent with the configuration recommendations in the Documentation including desktop computers laptops tablets mobile devices telecommunication devices Internet connected devices and hardware products capable of operating a wide variety of productivity entertainment or
17. rm an amount equal to the pro rata value of the On premise Software calculated by depreciating the fee paid by Customer for the On premise Software on a straight line basis using a useful life of 36 months from the date of initial delivery of the On premise Software but only if Customer purges all copies of the On premise Software and related materials from all computer systems on which it was stored and returns to Adobe all physical copies of the On premise Software and related materials 8 3 Conditions to Indemnification Adobe will have no liability for any Infringement Claim A that arises from any 1 use of the Indemnified Technology in violation of this Agreement 2 modification of the Indemnified Technology by anyone other than Adobe or a party authorized in writing by Adobe to modify specific code within the Indemnified Technology 3 failure by Customer to install the latest updated version of the Indemnified Technology as requested by Adobe to avoid infringement or 4 third party products services hardware software or other materials or combination of these with Indemnified Technology if the Indemnified Technology would not be infringing without this combination or B if Customer fails to 1 notify Adobe in writing of the Infringement Claim promptly upon the earlier of learning of or receiving a notice of it to the extent that Adobe is prejudiced by this failure 2 provide Adobe with reasonable assistanc
18. s by the contractor is only for Customer s internal operations 4 3 Customer Responsibility If Customer allows any person or entity to use or access the Products and Services including under sections 4 1 Use by Affiliates or 4 2 Outsourcing and Third Party Access A Customer must ensure that 1 the person or entity agrees to comply with and does comply with the ADOBE GENERAL TERMS 2014v3 Page 3 of 8 terms of this Agreement on the same basis as the terms apply to Customer and 2 Adobe has the right to enforce this Agreement directly against the person or entity and B Customer is responsible for all acts and omissions of all such person or entity 4 4 No Additional Rights For clarity the rights granted under this section 4 Outsourcing and Third Party Access do not modify the License Metric or increase the number of licenses granted under this Agreement 5 CONFIDENTIALITY 5 1 No Use or Disclosure Recipient will only use Confidential Information for the purposes of this Agreement and will not reproduce disseminate or disclose Confidential Information to any person except to its employees and authorized representatives i e temporary employees consultants and contractors who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this section 5 Confidentiality Recipient will treat all Confidential Information with a
19. software applications Confidential Information means a Discloser s or Discloser s Affiliates non public information including copies summaries and extracts i that is identified in writing as confidential at the time of disclosure whether in printed textual graphic or electronic form or ii that is disclosed in non tangible form identified as confidential at the time of disclosure summarized in a writing labeled as confidential and delivered to Recipient or Recipient s Affiliate as applicable within 15 days after disclosure The Party disclosing Confidential Information is referred to as Discloser ADOBE GENERAL TERMS 2014v3 Page 1 of 8 and the Party receiving Confidential Information is referred to as Recipient Confidential Information does not include information that 1 is or becomes generally publicly available at or after the time of disclosure through no fault of either Recipient or Recipient s Affiliate 2 was known to Recipient or Recipient s Affiliate as applicable free of any confidentiality obligations before its disclosure by either Discloser or Discloser s Affiliate 3 becomes known to Recipient or Recipient s Affiliate as applicable free of any confidentiality obligations from a source other than either Discloser or Discloser s Affiliate or 4 is independently developed by either Recipient or Recipient s Affiliate without use of Confidential Informati
20. t least the same degree of care as it treats its own information of similar sensitivity but never with less than reasonable care 5 2 Required Disclosure Recipient may disclose Confidential Information A as approved in a writing signed by Discloser B as necessary to comply with any law or valid order of a court or other governmental body or C as necessary to establish the rights of either Party but only if in the case of section 5 2 B and section 5 2 C Recipient 1 promptly notifies Discloser of the details of the required disclosure and 2 gives Discloser all assistance reasonably required by Discloser to enable Discloser to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence 5 3 Responsibility for Representatives and Affiliates Recipient is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the Recipient under this section 5 Confidentiality 6 TERM AND TERMINATION 6 1 Term This Agreement applies to each Product and Service from the Effective Date until the expiration of the applicable License Term or the term for Professional Services unless terminated earlier under this Agreement 6 2 Termination for Cause A Material Breach by Either Party If either Party commits a material breach of this Agreement the non breaching Party may give written notice describing the nature and basis o
21. uptions delays cancellations delivery failures data loss content corruption packet loss or other damage resulting from these problems 10 LICENSE COMPLIANCE 10 1 10 2 10 3 10 4 Adobe may at its expense and no more than once every 12 months appoint its own personnel or an independent third party or both to verify that Customer s use installation or deployment of the Products and Services or other Adobe Technology used in conjunction with the Products and Services comply with the terms of this Agreement For On premise Software and any Distributed Code the verification will require Customer to provide within 30 days of request A raw data from a software asset management tool of all On premise Software and Distributed Code installed or deployed by or at the direction of Customer including installation or deployment on servers owned by Customer or provided by third parties B all valid purchase documentation for all On premise Software and Distributed Code and C any information reasonably requested by Adobe Any verification may include an onsite audit conducted at Customer s relevant places of business upon 7 days prior notice during regular business hours and will not unreasonably interfere with Customer s business activities If the verification shows that Customer its Affiliates or third party contractors of Customer or its Affiliates are deploying installing or using the Products and Services or ot
22. y with them Adobe Partner Transactions If Customer orders Products and Services from an Adobe Partner under a Sales Order with the Adobe Partner Partner Sales Order notwithstanding anything to the contrary A the terms of this Agreement apply to Customer s use of the Products and Services B the Enterprise Licensing Terms or any part of it prevails over any inconsistent provisions in the Partner Sales Order and C the Adobe Partner is solely responsible for any variations or inconsistencies between the Partner Sales Order and the order between the Adobe Partner and Adobe for the transaction If Customer does not accept the terms of this Agreement then Customer must not use or must immediately cease using the relevant Products and Services U S Government Licensing For US Government end users Customer acknowledges that Products and Services 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 the terms are used in 48 C F R section 12 212 or 48 C F R section 227 7202 as applicable Customer agrees 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
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