Adobe Extension Agreement
Last updated August 2023
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ADOBE COMMERCE EXTENSION AGREEMENT
PLEASE READ THE FOLLOWING CAREFULLY BEFORE DOWNLOADING OR USING ANY PRODUCTS OR SERVICES VIA THE
ADOBE COMMERCE MARKETPLACE OR ANY RELATED WEBSITES.
The following Adobe Commerce Extension Agreement, together with any terms and conditions expressly
incorporated herein by reference (the "Agreement") is a contract between Adobe Inc. and/or its Affiliates including
X.commerce, Inc. d/b/a Magento, Inc. ("Adobe") and the individual or legal entity accepting this agreement and
accessing the Extension as defined herein (“You” or “Customer”), each, a “Party” or collectively the “Parties.” This
Agreement is effective when You click to accept these terms during the checkout process on Adobe Commerce
Marketplace when procuring Adobe-authored extensions for Adobe Commerce and Magento Open Source. If You
are entering into this Agreement on behalf of a legal entity, such as the company You work for, by accepting this
Agreement, You are representing and warranting that You have the legal authority to bind that entity. You hereby
waive any applicable rights to require an original, non-electronic, signature or delivery or retention of non-
electronic records, to the extent not prohibited under applicable law.
IF YOU DISAGREE WITH OR CANNOT COMPLY WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS
OR USE THE EXTENSION. In consideration of the mutual promises exchanged herein, the Parties agree as follows.
1.
DEFINITIONS.
1.1
“Account” means any Adobe account(s) for the Extension and/or Adobe Commerce Marketplace opened
by You.
1.2
“Adobe” means collectively, Adobe Inc., a company incorporated in Delaware, U.S.A., having a place of
business at 345 Park Avenue, San Jose, California 95110-2704, U.S.A. (“Adobe US”), Adobe Systems Software Ireland,
a company incorporated in Ireland, having a place of business 4-6 Riverwalk, City West Business Campus, Saggart,
Dublin 24, Ireland (“Adobe Ireland”), X.commerce, Inc. d/b/a Magento, Inc. (“Magento”) and any Adobe-acquired
companies providing the Service.
1.3
“Adobe Commerce” (formerly known as Magento Commerce) means the ecommerce platform software
developed and owned in whole or in part by Adobe and licensed under an agreement between Customer and Adobe.
1.4
"Adobe Commerce Marketplace" means the Adobe Commerce Marketplace website(s) available at
https://commercemarketplace.adobe.com/
(or its successor locations), and as may be updated by Adobe from time
to time.
1.5
“Adobe Content” means any Content that is made available to Customer by or on behalf of Adobe in
accordance with the terms of this Agreement, including but not limited to, the Extension.
1.6
“Affiliate” of a Party means an entity or person that directly or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common Control with such Party, where “Control” means (a)
possession of the power to direct or cause the direction of the management and policies of that Party, whether
through voting securities, by contract or otherwise; or (b) ownership of or voting rights over at least 50% of the
outstanding voting or equity of the Party. An entity shall be deemed an affiliate for only so long as such Control
exists.
1.7
“AI” means any AI that creates new or novel content provided by Adobe as part of the Extension;
1.8
“AI Output” means content created by AI;
1.9
“Commerce Platform” means Adobe Commerce and/or Magento Open Source.
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1.10
“Content” means owned, controlled or otherwise licensed: (a) technology, including, but not limited to, any
features functionality, or other application program interface; (b) content or information, including any text,
graphics, photographs, images, video, audio and/or other data or information; (c) specifications, data, databases,
processes, systems, methods of operation, concepts, software, software libraries, code, templates, command line
tools, user interfaces, protocols, formats, techniques, algorithms, methods, devices, procedures, functionalities or
other technology or similar item; (d) promotional and advertising materials, price comparisons and other pricing
information, product descriptions and similar data and information; (e) email content, addresses and similar
information; (f) URLs, now or at any time during the Term; (g) any adaptations, derivative work, modifications,
custom modules, extensions, themes, applications and add-ons of the information and materials described above;
and (h) all Intellectual Property Rights embodied in any of the foregoing.
1.11
“Copyleft Software” means software, content, materials, and/or works of authorship licensed under terms
that (a) grant, impose, or purport to impose a requirement or condition on the software or other technology
combined or otherwise used or distributed therewith; (b) require or purport to require that software or other
technology combined or otherwise used or distributed therewith be made available in source code form; (c) requires
or purports to require that software or technology combined or otherwise used or distributed therewith be licensed
for the purpose of making modifications or derivative works; (d) requires or purports to require that software or any
other technology combined or otherwise used or distributed therewith be redistributable at no charge; or (e) may
grant or purport to grant to third parties any rights or immunities under Adobe’s proprietary rights in the Services
and/or Software or any portion thereof.
1.12
“Customer Content” means any Content provided by or on behalf of Customer to, or to interface with, the
Extension.
1.13
“Disputed Amounts” means amounts disputed by Customer in a Notice and in good faith as billing errors.
1.14
“Documentation” means the documentation and/or guides for, and provided with, the Extension, and as
may be updated by Adobe from time to time.
1.15
“Extension” means Software and/or Services, provided by Adobe, that extend or customize behavior of the
applicable Commerce Platform together with any Documentation. Extensions can include add-ons, modules, design
interfaces, themes, and/or language packs.
1.16
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, GST, excise taxes,
sales and transactions taxes, and gross tax receipts.
1.17
“Intellectual Property Rights” means (a) any and all now known or hereafter known tangible and intangible:
(i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral
rights, and mask-works; (ii) trademark, trade dress and trade name rights and similar rights; (iii) trade secret rights;
(iv) patents, designs, algorithms and other industrial property rights; and (v) other intellectual and industrial property
rights of every kind and nature throughout the universe, however designated, whether arising by operation of law,
contract, license, or otherwise; and (b) all registrations, initial applications, renewals, extensions, continuations,
divisions or reissues hereof or hereafter in force regarding any of the foregoing and under the laws of any jurisdiction.
1.18
“Location(s)” means the production region where the Customer Content will be hosted, as identified in the
corresponding Extension page on the Adobe Commerce Marketplace.
1.19
“Losses” means any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’
fees).
1.20
“Magento Open Source” means the ecommerce platform software developed and owned in whole or in
part by Adobe and licensed under an Open Source Initiative (OSI) approved license, including but not limited to
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software available at: https://magento.com/tech-resources/download (or its successor locations), and as may be
updated by Adobe from time to time.
1.21
“Modifications” means any derivative work based on the Software or the Services (as the case may be),
including modifications, supplements, enhancements or additions thereof or thereto, that are developed by
Customer or its Affiliates (or any third party on behalf of any of the foregoing), including without limitation, any
software related to the configuration, integration, implementation, or localizations of the Software or Services.
Modifications by Customer or a third party are not permitted unless otherwise set forth in the applicable Service
Description.
1.22
“Notice” means any notice provided in accordance with Section 14.7.
1.23
“Open Source Software” means the software included in or with the Extension that is (a) listed or otherwise
identified as open source software in the Extension or documentation by links or otherwise, as may be amended by
Adobe from time to time; or (b) also published or made available to the public by a third-party licensor for use and
distribution on a royalty-free basis.
1.24
“Service(s)” means the provision of certain cloud hosting services and Adobe Content, including Software
(as the case may be), all as more specifically described in one or more Service Descriptions, if any. Services do not
include Third-Party Content or Customer Content.
1.25
“Service Description(s)” means the description of the Extension offered by Adobe, as set out on the
applicable listing page for the Extension on the Adobe Commerce Marketplace.
1.26
“Software” means Extension software that is developed and owned by Adobe (or Adobe), in whole or in
part, and made available to Customer hereunder or in conjunction with one or more Services if and as described in
a Service Description (if any), and subject to the terms of this Agreement.
1.27
“Support Services” means the support services Adobe offers Customers with respect to the Software and/or
Services, as specified on the corresponding Extension page on the Adobe Commerce Marketplace, as may be
updated by Adobe from time to time.
1.28
“Term” shall have the meaning set forth in Section 7.1 of the Agreement.
1.29
“Third-Party Content” means Content owned by a third party (or its licensors) that is not Customer Content
or Adobe Content and includes, without limitation, any Content as may be made available on the Adobe Commerce
Marketplace or on Adobe’s developer and community repositories and forums.
1.30
“Third-Party Services” means any and all third-party services (including associated APIs and web service
definition files) that may be made available to Customer or its End Users through the Services.
2.
USE OF SOFTWARE AND SERVICES.
2.1
Software. Subject to the terms and conditions of this Agreement (including Customer’s compliance with the
applicable Documentation) and payment of any applicable Subscription Fees (as defined below), Adobe grants
Customer a limited, personal, revocable, non-exclusive, non-transferrable, non-sublicensable license to install,
reproduce and use internally the Software, as provided to Customer. The Software may include Open Source
Software. Adobe shall make the Software available to Customer on the agreed upon delivery date, provided Adobe
has received any applicable Subscription Fees in full.
2.2
Services. Subject to the terms and conditions of this Agreement and payment of any applicable Subscription
Fees (as defined below), Customer may access and use the Services in accordance with this Agreement and the
applicable Service Description. Customer Affiliates may not use the Services under the terms of this Agreement.
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2.3
Restrictions. Customer shall not (and shall ensure that its employees, contractors and other third parties do
not): (a) exploit the Software or Services for any purpose other than as described in this Section 2; (b) provide, use,
or allow others to use, the Software or Services for the benefit of third parties; (c) modify, alter, tamper with, repair,
or otherwise create derivative works of any Adobe Content included in the Services; (d) reverse engineer,
disassemble, or decompile the Software or Services or apply any other process or procedure to derive the source
code of the Software or any software included in or with the Services; (e) access, use or develop the Software or
Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (f) sell, offer to sell, distribute,
disclose, sublicense or otherwise make available the Software or Services in a manner that is not authorized under
this Agreement; (g) assert or authorize, assist, or encourage any third party to assert, any claim of infringement of
Intellectual Property Rights regarding the Software or Services; (h) imply any relationship or affiliation between
Adobe and Customer except as expressly permitted by this Agreement; (i) use any Copyleft Software in connection
with Adobe Content; (j) use, host, support or assist in the use of Magento Open Source in combination with the
Software or Services unless otherwise stated in the applicable Service Description; (k) use the Software or Services
for the purpose of building a similar or competitive product or service; or (l) use or permit the use of any tools in
order to probe, scan or attempt to penetrate or benchmark the Software or Services. Customer (on behalf of itself
and its Affiliates) hereby irrevocably waives and agrees to never assert any right in Modifications against Adobe and
its Affiliates or its direct or indirect sublicensees.
2.4
Patches, Updates and Upgrades. Adobe may provide Customer with patches, updates or upgrades to the
Software as part of the provision of Support Services.
2.5
Government Customers. Software licensed under this Agreement (as applicable) is “commercial computer
software” as that term is defined in the Federal Acquisition Regulation (“FAR”) at FAR 2.101, and is comprised of
commercial computer software and commercial computer software documentation (collectively, the “Commercial
Software”). If the Commercial Software is licensed or acquired by or on behalf of a civilian agency of the U.S.
Government, the U.S. Government’s rights to use, modify, reproduce, release, perform, display or disclose the
Commercial Software are as set forth in this Agreement, consistent with 48 C.F.R. 12.212 (Computer Software) of
the FAR and any successor regulation. If acquired by or on behalf of any agency within the Department of Defense
(“DOD”), the U.S. Government’s right to use, modify, reproduce, release, perform, display, or disclose the
Commercial Software are as set forth in this Agreement, consistent with 48 C.F.R. 227.7201-1 through 227.7202-4
of the DOD FAR Supplement (“DFARS”) and any successor regulation. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7201-1 through 227.7202-4, in a case of contradiction between this Government Customers clause and any
other FAR, DFARS, or other clause or provisions that address Government rights in the Commercial Software that
may be included in any other agreement under which the Commercial Software is licensed or acquired, this
Government Customers clause will prevail.
3.
CUSTOMER RESPONSIBILITIES.
3.1
Customer Content.
(a)
Customer is solely responsible for the development, content, operation, maintenance, and use of Customer
Content including but not limited to responsibility for: (i) any claims relating to Customer Content, including claimed
violations of applicable law; and (ii) properly handling and processing notices that are sent to Customer (or any
Customer Affiliate) regarding Customer Content, such as by any person claiming that Customer Content violate such
person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
(b)
Customer is solely responsible for providing appropriate security for and protection of Customer Content,
which may include use of encryption technology to protect Customer Content from unauthorized access; and (ii)
applying necessary security patches to the Software when supplied by Adobe.
(c)
Customer consents to the storage of such Customer Content in, and transfer of such Customer Content
into, the Locations.
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3.2
Accounts. Customer is solely responsible for configuring and using the Services in a manner that will provide
appropriate security and protection of its Account and for all activities of Customer, their Affiliates and third parties
that occur under its Account, regardless of whether the activities are authorized by Customer or are undertaken by
Customer, its employees or a third party (including without limitation contractors, agents, and Affiliates). Account
log-in credentials and private keys generated by the Services are for Customer’s internal use only and Customer may
not sell, transfer or sublicense them to any other entity or person, except that Customer may disclose its private key
to its agents and subcontractors (including any of its Affiliates who are acting as an agent or subcontractor of
Customer) performing work with respect to the Services, Customer Content, or Modifications on behalf of Customer.
3.3
Conduct. Customer shall not engage in any activity in conjunction with the Software or Services that: (i)
knowingly violates a third party’s terms of service; (ii) violates any applicable law or regulation (including without
limitation privacy laws and laws relating to the transfer and processing of Customer Content); (iii) interferes with,
disrupts, damages, harms, or accesses in an unauthorized manner the machines, hardware, devices, servers,
network data, or other properties or services of any third party, including, but not limited to, Adobe or Adobe users;
(iv) infringes on the intellectual property rights of others; or (v) violates Adobe’s Acceptable Use Policy, located at
https://www.adobe.com/content/dam/cc/en/legal/terms/enterprise/pdfs/MagentoAcceptableUsePolicy.pdf
(or
its successor location), and as may be updated by Adobe from time to time. Without limiting the foregoing, Adobe
may remove or disable access to content without prior notice in connection with illegal content, where the content
may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with
law or any judicial or regulatory or other governmental order or request. In the event that we remove content
without prior notice, Adobe will provide prompt notice following such removal to You unless prohibited by law.
3.4
Export and Import Restrictions. Software and its Documentation (as applicable) that are licensed under this
Agreement may be subject to the U.S. Export Administration Act (50 USC 2401-2420) and the Export Administration
Regulations (EAR) (15 CFR 768-799) promulgated thereunder; the U.S. Arms Export Control Act (22 USC 2751-2779)
and the International Traffic in Arms Regulations (ITAR) (22 CFR 120-130) promulgated thereunder; the Regulations
of the Office of Foreign Assets Control of the U.S. Treasury Department (31 CFR 500-599); and export or import
restrictions of any other jurisdiction as may apply to the export or import of such software and computer software
documentation. Customer shall comply with any and all such applicable import and export laws and regulations,
including any applicable restrictions relating to sanctioned countries and denied parties. Customer represents that
it (and its Affiliates and employees) is not named on any U.S. government list of persons or entities prohibited from
receiving exports and Customer shall not permit End Users to access or use the Software or Service in violation of
any U.S. export embargo, prohibition or restriction.
3.5
Third-Party Content, Third-Party Services, and Modifications. The Extension may provide access to, and
Customer may at its option decide to utilize, Third-Party Content and Third-Party Services, which are governed by
separate agreement(s) as between such third parties and Customer and not this Agreement. Adobe makes no
representation, warranty or covenant with respect to, and provides no indemnity for, any Third-Party Content or
Third-Party Services. Customer is solely responsible for the installation and deployment of any Third-Party Content,
Third-Party Services, and/or if applicable to the Service, Modifications (collectively, “Customization”). This includes
any possible negative effect on the Services arising from the use or inability to use any Customization. Customer
acknowledges that Customizations may affect performance and may result in downtime and/or require increased
server or surge capacity which may incur additional fees. It is the responsibility of the Customer to address any
performance, availability, or functional issues caused by any Customization. Customer further acknowledges that
there may be additional fees associated with the utilization of Third-Party Services which are Customer’s sole
responsibility. Adobe will have no liability with respect to any fees incurred by Customer in association with the use
of Third-Party Services.
3.6
Customer shall maintain at all times the appropriate level of PCI certification as set forth in the PCI Data
Security Standards and Payment application Data Security Standards issued by the PCI Security Standards Council,
or any successor compliance certificates, including, without limitation, PCI DSS (PCI Data Security Standard) v. 3.2.1
as any such standards may be amended, updated, or revised. Customer shall ensure that the Extension does not
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store, transmit, process or tangentially process any cardholder data of any kind.
3.7
Customer understands and agrees that Adobe is not acting on Customer’s behalf as a Business Associate or
subcontractor (as defined below): (a) the Services may not be used to store, maintain, process or transmit sensitive
personal information, including but not limited to financial information, country identifications numbers (such as
social insurance, social security, driver’s license or passport numbers), or protected health information (“PHI”); and
(b) the Services will not be used in any manner that would require Adobe or the Service to be compliant with the
Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). The terms
“Business Associate”, “subcontractor”, “protected health information” or “PHI” shall have the meanings described
in HIPAA.
3.8
Customer agrees and acknowledges that Adobe shall have no liability for any degradation in the
functionality of the Services that is attributable to insufficient computer processing resources being provisioned.
3.9
Regional Service Limitations. Customer is not permitted to use the Services in mainland China, Russia and
any other country where access or usage is restricted by local laws.
4.
ADOBE RESPONSIBILITIES.
4.1
Privacy. Adobe will not: (a) move Customer Content from the Locations; or (b) access, use or disclose
Customer Content; except as necessary to maintain and provide the Software, Services and Support Services to
Customer, or as necessary to comply with the law or an order of a governmental or regulatory body, or as expressly
set forth in this Agreement.
4.2
Security. In its delivery of the Services, Adobe implements commercially reasonable and appropriate
measures (as determined by Adobe) designed to help Customer secure Customer Content against accidental or
unlawful loss, access or disclosure.
4.3
Analytics. Customer grants Adobe a non-exclusive, worldwide, irrevocable, perpetual, royalty-free right and
license to use all Customer data that Adobe may obtain through: (a) providing and supporting the Software or
Services; and (b) accessing data from third parties regarding Customer’s use of Third-Party Services or Third-Party
Content (including analytics data and any unique account identifiers) (c) accessing analytics data and any unique
account identifiers provided to Adobe by Customer for the purposes of: (i) providing Support Services or other
services to Customer; (ii) improving the Services, Software and Support Services; (iii) performing analyses related to
the Software and Customer’s use of the Services and Software (if applicable); and (iv) monitoring the performance
and use of the Services and the Software. The foregoing license includes the right for Adobe to develop and publish
or otherwise make available broadly applicable insights regarding aggregated data but only when the data has been
aggregated or de-identified so that such insights cannot reasonably be used to identify Customer. Examples of
Adobe’s use of such aggregated data include, but are not limited to, statistics aggregated across all of Adobe’s
customers on metrics such as the size of data sets, the number of users, revenue, number of transactions, and
growth rates, as well as to analyze trends and improve product functionality, and for marketing, research, and
benchmarking purposes.
4.4
Adobe may subcontract or otherwise outsource any part of the Services or any part of its obligations
hereunder in its sole discretion and Adobe will remain solely responsible for the performance of any such
subcontractor.
5.
FEES AND PAYMENT.
5.1
Subscription Fees. Customer shall pay the subscription fees (“Subscription Fees”), if any, as specified in the
corresponding Extension page on the Adobe Commerce Marketplace. Customer hereby authorizes Adobe, if
applicable, to charge its credit card or other payment instrument (or issue an ACH transaction) for Subscription Fees,
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Overage Fees, and/or any upgrades to the Services ordered, and any applicable taxes in arrears or at time of order,
as the case may be.
5.2
Overage Fees. Customer shall pay additional fees as set forth on the corresponding Extension page on the
Adobe Commerce Marketplace in the event that its use of the Services exceeds any of the metrics specified therein
(the “Overage Fees”). Any such Overage Fees will be reflected in an invoice and subject to the payment terms of this
Section 5.
5.3
Payment Terms. All fees payable by Customer to Adobe are non-refundable and non-cancellable and are
subject to any payment schedule set forth in the corresponding Extension page on the Adobe Commerce
Marketplace. All amounts payable by Customer under this Agreement will be paid to Adobe without setoff or
counterclaim and without deduction or withholding, provided that Disputed Amounts will be handled as set forth
below. Adobe may elect to charge Customer interest at the rate of one point five percent (1.5%) per month (or the
highest rate permitted by law, if less) on all late payments.
5.4
Disputed Amounts. For any Disputed Amounts, Customer will provide Notice to Adobe, including the basis
for the dispute (including any supporting documentation), and the parties will meet within thirty (30) days of the
date of the Notice to resolve the dispute. If the parties fail to resolve the dispute within such thirty (30) day period,
Adobe may, at its option, terminate this Agreement immediately pursuant to Section 7.2 or suspend or restrict
provision of or access to the Services and Software (as applicable).
5.5
Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes
and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed
on that Party with respect to the transactions and payments under this Agreement. All fees payable by Customer
are exclusive of Indirect Taxes. Adobe may charge and Customer will pay applicable Indirect Taxes that Adobe is
legally obligated or allowed to collect from Customer. Customer will provide such information to Adobe as
reasonably required to determine whether Adobe is obligated to collect Indirect Taxes from Customer. Adobe will
not collect, and Customer will not pay, any Indirect Tax for which Customer furnishes Adobe a properly completed
exemption certificate or a direct payment permit certificate for which Adobe may claim an available exemption from
such Indirect Tax. All payments made by Customer to Adobe under this Agreement will be made free and clear of
any withholding or deduction for taxes. If any such taxes (for example, international withholding taxes) are required
to be withheld on any payment, Customer will pay such additional amounts as are necessary so that the net amount
received by Adobe is equal to the amount then due and payable under this Agreement.
5.6
Audit Rights. Adobe may include means within the Extension to audit or limit Customer’s usage of the
Extension to ensure such usage is consistent with the terms of this Agreement.
6.
TEMPORARY SUSPENSION.
6.1
Adobe may temporarily suspend Customer’s right to access or use any portion of or all of the Extension
immediately (i) without Notice to Customer in case of (a) below, or (ii) after thirty (30) days’ Notice to Customer and
failure by Customer to cure in case of (b) or (c) below, if Adobe reasonably determines:
(a)
Customer’s use of the Extension poses a material risk, adverse impact, or liability to the Extension, a third
party, Adobe systems, Adobe or its Affiliates, or the Content of any other Adobe customer, or
(b)
Customer is not in compliance with Sections 2, 3, 9 or any licenses granted in applicable Service
Description(s); or
(c)
Customer has any outstanding unpaid Subscription Fees or Overage Fees that are not Disputed Amounts.
Adobe will use commercially reasonable efforts to restore Customer’s rights to use and access those portions of
the Extension or Accounts that gave rise to the suspension promptly after Customer has resolved the problem
giving rise to the suspension.
6.2
Effect of Suspension. If Adobe suspends Customer’s right to access or use any portion of the Extension:
(a)
Customer remains responsible for all fees and charges Customer incurs during the period of suspension;
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and
(b)
Customer will not be entitled to any service credits under Support Services for any period of suspension.
7.
TERM; TERMINATION.
7.1
Term. The term of the Agreement shall commence on the execution of this Agreement and continue in
effect unless otherwise terminated in accordance with this section.
7.2
Termination. Without limiting Section 6, either Party may terminate this Agreement without cause upon
thirty (30) days’ prior written notice. Adobe may terminate this Agreement immediately upon written notice if
Customer fails to comply with any term of this Agreement.
7.3
Effect of Termination.
(a)
Upon the Termination Date:
(i)
except as provided in Section 7.3(b), all of Customer’s licenses under this Agreement immediately terminate
and Customer shall cease all use of the Extension;
(ii)
Customer remains responsible for all fees and charges Customer has incurred through the Termination
Date;
(iii)
Customer will immediately return or, if instructed by Adobe, destroy all Adobe Content in Customer’s
possession; and
(iv)
Sections 2.3, 3, 4.1-4.3, 5, 7.3, 8, 9.1, 9.5, 10, 11, 12, 13 and 14 will continue to apply in accordance with
their terms and survive termination of this Agreement.
(b)
Post-Termination. Within thirty (30) days of the Termination Date, Customer shall certify in writing to Adobe
that Customer has ceased use of the Extension and that all copies or embodiments thereof (including related
Documentation) in any form, including partial copies within modified versions, have been destroyed. For the thirty
(30) days following the Termination Date, Adobe will (a) not take action to remove any Customer Content as a result
of the termination; and (b) will allow Customer to retrieve any remaining Customer Content from any Services
associated with the Extension; unless (i) prohibited by law or the order of a governmental or regulatory body or it
could subject Adobe or its Affiliates to liability; or (ii) Customer has not paid all amounts due under this Agreement,
other than Disputed Amounts. For any use of the Extension after the Termination Date, the terms of this Agreement
will apply and Customer will pay the applicable fees as set forth under Section 5.
8.
CONFIDENTIALITY.
8.1
Confidential Information. Each Party acknowledges that, as a result of this Agreement, it may gain access
to certain Confidential Information of the other Party. “Confidential Information” means the Extension and all
materials, documentation and information, including, but not limited to, techniques, algorithms and processes and
technical, business and marketing information, designated or marked by the Party disclosing such documentation
and information orally, visually or in writing (the “Disclosing Party”) as “proprietary” or “confidential” or the like, or
that the other Party (the “Receiving Party”) knows to be confidential, or should reasonably consider to be
confidential under the circumstances of its disclosure, supplied by the Disclosing Party to the Receiving Party in
connection with this Agreement.
8.2
Protection of Confidential Information. During the Term and for a period of five (5) years thereafter, each
Receiving Party agrees (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same
degree of (but no less than reasonable) care and protection that it exercises with its own Confidential Information
of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information
of the Disclosing Party to a third party; and (c) not to copy or use Disclosing Party’s Confidential Information for any
purpose other than as necessary to fulfill Receiving Party’s obligations or exercise its rights under this Agreement.
Each Party will disclose the other Party’s Confidential Information only to its employees and authorized contractors
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with a need to know in order to fulfill such Party’s obligations hereunder and who have been informed of and have
agreed to abide by the provisions of this Section 8. In addition, the Receiving Party may disclose Confidential
Information of the Disclosing Party to the extent that such disclosure is approved in writing by the Disclosing Party
or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving
Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the
Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit
the scope of such required disclosure.
8.3
Exclusions. The obligations of this Section 8 will not apply to Confidential Information if such information:
(a) is publicly available prior to or at the time of disclosure, or later becomes publicly available through no act of the
Receiving Party; or (b) was, prior to disclosure hereunder, rightfully known to the Receiving Party (other than in
connection with this Agreement) without confidentiality restriction.
9.
PROPRIETARY RIGHTS.
9.1
Ownership. Except as specifically set forth herein, each Party shall retain all Intellectual Property rights in
such Party’s respective Content. As between Customer and Adobe, Customer (or Customer’s licensors) own all right,
title, and interest in and to Customer Content. Except as provided in this Agreement, Adobe obtains no rights under
this Agreement from Customer (or Customer’s licensors) to Customer Content. Customer shall have no ownership
right to the Adobe Content or any Intellectual Property Rights or technology of Adobe or any third party, whether
by implication, estoppel, or otherwise. Adobe (and its licensors) owns, and will own, all right, title and interest in and
to the Adobe Content. Customer hereby agrees to take all reasonable actions to allow and assist Adobe to perfect
its ownership rights therein. Adobe reserves all rights not expressly granted to Customer under this Agreement. To
the extent Customer or any of its Affiliates receive any right, title or interest in or to any Adobe Content, or any
Intellectual Property Rights in any of the foregoing, Customer hereby assigns, and Customer shall cause its Affiliates
to assign, to Adobe all such right, title and interest.
9.2
References to Customer. Unless Customer requests otherwise by providing Notice to Adobe, Adobe may
use Customer’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features
(“Customer Marks”) in presentations, marketing materials, customer lists, financial reports, and website listings
(including links to Customer’s website) for the purpose of advertising or publicizing Customer’s use of the Extension.
Any such usage of Customer Marks shall be in accordance with Customer’s trademark guidelines, as provided to
Adobe in writing.
9.3
Contractors. Subject to the terms and conditions of this Agreement, Customer may permit authorized third
parties to access Extension provided, that (i) the third party is bound by a valid and enforceable written agreement
with Customer, at least as protective of Adobe as this Agreement, including without limitation Section 2 and any
licenses and restrictions contained in the applicable Service Description(s), solely as needed to provide the
contracted services to Customer in connection with the Extension hereunder; and (ii) Customer shall be responsible
for all acts and omissions by such third party as if they were Customer’s acts and omissions.
9.4
Open Source Software. Customer acknowledges that the Extension may include Open Source Software,
which is governed by the applicable license terms thereof. The Open Source Software provided under such license
agreements is subject to the provisions of such license agreements and not this Agreement, except as expressly
provided herein.
9.5
Feedback. If Customer elects to provide any suggestions, requests for changes, comments or other feedback
to Adobe or its Affiliates regarding its products or services, including, but not limited to the Extension (“Feedback”),
Adobe and its Affiliates will be entitled to use and commercially exploit the Feedback without restriction and with
no obligation to Customer.
10.
INDEMNIFICATION.
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10.1
Customer will defend, indemnify, and hold harmless Adobe, its Affiliates and licensors, and each of their
respective employees, officers, directors, and representatives from and against any Losses arising out of or relating
to any claim concerning: (a) Customer’s use of the Extension in a manner not authorized by this Agreement or as
described in the Documentation; (b) Customer’s breach of any representation, warranty, covenant, or obligation of
Customer under this Agreement, including, for avoidance of doubt, any breach of Section 3; (c) alleged infringement
or misappropriation of any third party’s patent, copyright, trademark or trade secret by Customer Content or
Modifications (if any), or by the use, development, design, production, advertising or marketing of such Customer
Content or Modifications (if any); or (d) a dispute between Customer and any third party.
10.2
Process. Your obligations under this Section 10 are subject to Adobe (i) giving You prompt written notice of
any such claim in such detail as You may reasonably request; (ii) providing You with reasonable assistance in
defending such claims, at Your expense; (iii) allowing You to have sole control of the defense or settlement of any
claim under this Section 10; and (iv) not entering into any settlement or compromise of a claim without the Your
prior written consent.
10.3
Entire Liability. THIS SECTION 10 STATES THE PARTIES’ ENTIRE LIABILITY AND SOLE AND EXCLUSIVE REMEDY
FOR ANY ACTUAL OR ALLEGED INFRINGEMENT CLAIMS RELATED TO THE EXTENSION.
11.
WARRANTY DISCLAIMER.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT,
ADOBE PROVIDES THE EXTENSION 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 EXTENSION 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 INTERRUPTIONS, DELAYS, CANCELLATIONS, DELIVERY FAILURES,
DATA LOSS, CONTENT CORRUPTION, PACKET LOSS, OR OTHER DAMAGE RESULTING FROM THESE PROBLEMS.
12.
LIMITATION OF LIABILITY.
(A)
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, MORAL,
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES; LOSS OF PROFITS; LOSS OF REPUTATION, USE,
OR REVENUE; LOSS OR CORRUPTION OF DATA; OR INTERRUPTION OF BUSINESS.
(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 PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS
BEFORE THE INITIAL CLAIM.
(C)
SECTIONS 12 (A) AND 12 (B) (LIMITATION OF LIABILITY):
(I)
APPLY REGARDLESS OF THE FORM OR 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
(II)
DO NOT APPLY IN ANY BREACH OF SECTION 3 (CUSTOMER RESPONSIBILITIES), SECTION 8
(CONFIDENTIALITY), CUSTOMER’S USE OF THE EXTENSION BEYOND THE SCOPE OF ANY LICENSE OR SUBSCRIPTION
GRANTED UNDER THIS AGREEMENT, OR CUSTOMER’S FAILURE TO PAY ANY AMOUNTS OWING TO ADOBE UNDER
THIS AGREEMENT.
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13.
AI AND AI OUTPUT
The following terms apply to any current and any future Extensions that include features or functionality utilizing
artificial intelligence, as may be described in the applicable Service Description:
13.1
Continuity of Service. Adobe will have no obligation to continue providing any Artificial Intelligence (AI)
functionality or model. Adobe may in its sole discretion limit, throttle, disable, discontinue or replace any AI
technology.
13.2
Customer Obligations and Disclaimer.
Customer understands and agrees that it is solely responsible for the
review and use of any AI output, including compliance with applicable laws, and that Adobe will have no liability
related to the foregoing. Company understands that AI output may not be protectible by intellectual property rights.
Customer also understands and agrees that it may be subject to content management, content filtering, abuse
monitoring, or similar safeguards from Adobe or its licensors (whether automatic or manually by human reviewers)
and agrees to abide by posted terms of use. Except to the extent prohibited by law, Adobe expressly disclaims any
noninfringement warranty of any AI and AI output.
14.
MISCELLANEOUS.
14.1
Assignment. Adobe may assign this Agreement or transfer any right or delegate any duty hereunder.
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its
obligations or performance, under this Agreement, by operation of law or otherwise, without Adobe’s prior written
consent, not to be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this
Section shall be null and void. This Agreement is binding on and inures to the benefit of the parties hereto and their
respective permitted successors and assigns.
14.2
Counterparts; Facsimile. This Agreement may be executed by click agreement acceptance (where available)
or executed by facsimile or by electronic signature in a format approved by Adobe, and in counterparts, each of
which (including signature pages) will be deemed an original, but all of which together will constitute one and the
same instrument.
14.3
Entire Agreement. This Agreement is the entire agreement between Customer and Adobe regarding the
subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations,
understandings, agreements, or communications between Customer and Adobe, whether written or verbal,
regarding the subject matter of this Agreement. Adobe will not be bound by any term, condition or other provision
which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter
this Agreement) including for example, any term, condition or other provision (a) submitted by Customer in any
order, receipt, acceptance, confirmation, correspondence or other document; (b) related to any online registration
by Adobe or Adobe personnel, response to any request for bid, request for proposal, request for information, or
other questionnaire; or (c) related to any invoicing process that Customer submits or requires Adobe to complete. If
the terms of this document are in conflict or inconsistent with terms expressly incorporated herein by reference, the
terms contained in this document will control. No modification or amendment of any portion of this Agreement will
be effective unless in writing and signed by the parties to this Agreement.
14.4
Force Majeure. Except for payment obligations, neither Party will be liable for any delay or failure to
perform any obligation under this Agreement where the delay or failure results from any cause beyond its
reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage,
utilities or telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes,
riots, acts or orders of government, acts of terrorism, or war.
14.5
Governing Law, Venue. This Agreement is governed by and construed under the laws of the state of
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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.
14.6
Independent Contractors; Non-Exclusive Rights. Adobe and Customer are independent contractors, and this
Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither
Party, or any of their respective Affiliates, is an agent of the other for any purpose or has the authority to bind the
other.
14.7
Notice. All notices shall be in writing and sent by first class mail or overnight mail (or courier), transmitted
by facsimile (if confirmed by such mailing), or email (if receipt is confirmed), or such other address as either Party
may indicate by at least ten (10) days’ prior written notice to the other Party (each, a “Notice”). Notices may be
delivered to Customer at the primary contact email or physical address specified in Customer’s Account. Notices
may be delivered to Adobe at
ContractNotifications@adobe.com.
14.8
No Waivers. The failure by either Party to enforce any provision of this Agreement will not constitute a
present or future waiver of such provision nor limit such Party’s right to enforce such provision at a later time. All
waivers by a Party must be provided in a Notice to be effective.
14.9
Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions
of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to
effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will
be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.
