1
SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
1.
Omitted
2.
Definitions
2.1 “
Agreement
” means all attachments and exhibits
attached hereto and all specifications, drawings, notes,
instructions and other written materials and information
referred to therein, shall apply to the acquisition of the
Software and Services described herein and are
incorporated herein.
2.2
“Acceptance Date”
means the date upon which
Adobe formally acknowledges acceptance Software
after the Delivery Date.
2.3
“Affiliate”
means any other entity that controls, is
controlled by, or under common control of Adobe. 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.
2.4
"Authorized Users"
means employees and individual
contractors (i.e., temporary employees) of Adobe and
its Affiliates.
2.5
“Computer”
means one or more central processing
units (“CPU”) in a hardware device (including hardware
devices accessed by multiple users through a network
("Server")) that accepts information in digital or similar
form and manipulates it for a specific result based on a
sequence of instructions.
2.6
“Documentation”
means the user manuals and/or
technical publications as applicable, relating to
installation, use and administration of the Software.
2.7
“Illicit Code”
means any anomalies or computer
instructions in or with Software that are not intended to
provide the functionality and features defined in the
Documentation and applicable specifications and that
interfere with Adobe’s right to quiet enjoyment of the
license to such Software granted by this Agreement.
Illicit Code includes: (a) viruses, trojan horses, worms,
authorization strings and other similar malicious code;
(b) any self-destruction mechanism; and (c) any
copyright protection or license manager mechanism.
Illicit Code shall not be construed to mean errors or
omissions in the computer instructions intended to
provide functionality defined in the Documentation,
except that code that otherwise fits the description
above and also produces such errors or consists of
such omissions shall still be considered Illicit Code.
2.8
"Internal
Network"
means
Adobe’s
private,
proprietary network resource accessible only by
Authorized Users. “Internal Network” specifically
excludes the Internet (as such term is commonly
defined)
or any other network community open to the
public, including membership or subscription.
2.9
“Licensor”
means the party from whom Adobe is
purchasing the Services, Software, and/or Support.
2.10
“Open Source Code”
means source code or other
software which is licensed or otherwise provided
pursuant to terms that create, or purport to create,
obligations for Adobe to grant, or purport to grant, to
any third party any rights or immunities under Adobe or
its licensor’s intellectual property or proprietary rights
in intellectual property owned or licensed by Adobe
(including such intellectual property developed by
Licensor and assigned or otherwise transferred to
Adobe under this Agreement).
2.11
“Release”
means a substantial improvement in user
functionality that is marketed by Licensor as a new and
improved Software product, or a version of the
Software that replaces previous Releases. Substantial
improvement must include more than just new
hardware support (e.g. devices, drivers, or ports to the
Software) and bug fixes.
2.12
“Services”
means the designated Software-related
work provided by Licensor, which may include
development, training, consulting, support, and/or
maintenance.
2.13
“Software”
means Licensor’s software products,
including documentation customarily provided with the
software
and
any
Releases,
Updates,
and/or
Upgrades, solely in object code form, licensed to
Adobe under the terms of this Agreement. All such
items shall be included in the pricing in the Agreement.
2.14
“Support”
means the maintenance and support
services as set forth in Exhibit A.
2.15
“Update”
means
functional
and/or
feature
improvements made to the Software at Licensor’s
discretion, and which are deemed to be paid for
hereunder, which are intended to keep the current
shipping version of the Software release competitive
with related technology in the Software’s respective
market, including but not limited to bug fixes,
performance enhancements, improvements, or error
corrections, but excluding Upgrades. Such Updates
are typically (but not necessarily) identified by a
change in the numbers to the right of the decimal point
in the version number of the Software.
2.16
“Upgrade”
means
the
unique
and significant
functional and/or feature improvements made at
Licensor’s discretion that are deemed to be a new
software
product
for
which
Licensor
charges
separately, or for which Licensor provides a specific
Upgrade path for licenses of previously released
Software. Upgrades are typically identified by a
change to the left of the decimal point in the version
number of the Software.
2
3
License Grant
3.1 Licensor hereby grants to Adobe a non-exclusive,
perpetual (unless terminated in accordance with the
provisions of Section 6), royalty-free, worldwide
license, under all intellectual property rights owned,
licensed, or otherwise controlled by Licensor, and
embodied in the Software, if it is the case, to: (a)
access (for Software as a Service) or install the
Software in machine-readable, object code form on
computers that are in Adobe’s internal networks, for
use by up to the number of users or modes for which
Adobe has purchased a license, and (b) to copy and
internally distribute the Software and associated
documentation and technical materials as specified, for
Adobe’s internal purposes only, including but not
limited to the right to: (i) use the Software in web-based
applications, (ii) use copies of the Software for internal
training, (iii) permit Adobe’s subcontractors to exercise
Adobe’s rights under this Agreement solely in
performance of work for Adobe, and (iv) make archival
copies pursuant to Adobe’s standard backup and
archival policies, procedures, and practices. At the
time of licensing, all required security keys or
authorization codes will be provided to Adobe by
Licensor. Adobe acknowledges and agrees that: (x) it
may use one security key or one authorization code per
copy of the Software licensed, (y) use of the Software
is contingent upon payment of fees due in accordance
with the terms of this Agreement. Authorized users of
the Software shall be permitted to access the Software
remotely while telecommuting or while otherwise
performing Services for Adobe remotely. Updates and
Upgrades to Software shall be made available to
Adobe as soon as they are made available to other
customers of Licensor.
3.2 The Software is licensed, and not sold. Licensor
retains ownership of the Software and all copies
thereof, and reserves all rights not explicitly granted
herein. Licensor acknowledges and agrees to comply
with Exhibit A.
3.3 Except as otherwise permitted hereby, Adobe will not
(and will not allow any third party to) lease, license,
sublicense or encumber the Software, or any portion
thereof. Except to the minimum extent necessary to
comply with applicable law, Adobe will not (a)
decompile, disassemble, or reverse engineer any
portion of the Software, (b) modify or prepare derivative
works of the Software, or (c) permit third parties to use
the Software as part of a service bureau.
4
License Fees
4.1 All applicable taxes, including but not limited to sales
and use taxes, gross receipts taxes and other changes
such as duties, customs, tariffs, imposts, and
government-imposed surcharges, shall be separately
stated. Licensor shall remit all such charges to the
appropriate tax authority unless Adobe provides
sufficient proof of tax exemption. When property is
delivered and/or Services are provided or the benefit of
Services occurs within jurisdictions in which Licensor
collection and remittance of taxes is required by law,
Licensor shall have sole authority for payment of said
taxes to the appropriate tax authorities. If Licensor
does not collect taxes from Adobe, and is subsequently
audited by any tax authority, Adobe’s liability will be
limited to the tax assessment, with no reimbursement
of Licensor for any penalty or interest charges. Each
party is responsible for its own income taxes or taxes
based upon gross revenues, including but not limited
to business and occupation taxes.
4.2 To the extent this Agreement includes transfers of
licenses for Software to be used in web-based e-
commerce or e-business solutions, or web-related
Services fees, including but not limited to hosting fees,
data or storage fees, and related Services, and such
Services are determined to be taxable or to become
taxable as of an ascertainable future date, Licensor will
collect such taxes as are determined to be due from
Adobe, or Adobe’s resellers if applicable, and will remit
the same to the appropriate taxing authorities. In the
case of taxes imposed on the gross revenues resulting
from the provision of such Services, Licensor will remit
such taxes to the taxing authority before any deduction
for Adobe’s share of the Services.
4.3 Additional costs, except those agreed to in writing will
not be reimbursed without Adobe’s express, prior
written agreement.
5
Invoicing and Payment
5.1 Unless otherwise expressly provided or for countries
where hardcopy invoicing is mandatory per local
regulations, invoices must be submitted electronically
via Ariba Network ID or Interactive PO invoicing link
(Received via email).
5.2 Adobe’s payment shall not constitute acceptance of
Software or Services.
5.3 Licensor shall be solely responsible for and shall
indemnify and hold Adobe harmless for any claims for
payments due to consultants or subcontractors of
Licensor utilized in the performance of Services.
5.4
Licensor agrees to invoice Adobe no later than one
hundred eighty (180) days after the Acceptance Date
for Services or Software. Adobe shall not be obligated
to make payments against any invoices submitted after
such period. To enable payment, Licensor will input
Licensor’s
information
and
compliance
related
information in an online vendor onboarding portal
designated by Adobe and will update such information
periodically as requested by Adobe.
6
Term and Termination
6.1 The term of this Agreement (the “Term”) shall
commence upon the effective date and shall continue
until it has been terminated in accordance with the
terms of this Agreement.
3
6.2 Adobe may terminate this Agreement hereunder in
whole or in part, at any time for its sole convenience by
giving advance written notice of termination to
Licensor. Upon Licensor’s receipt of such notice,
Licensor shall, unless otherwise specified in such
notice, immediately stop all work previously authorized
and give prompt written notice to all of its suppliers and
subcontractors to cease all related work and shall
cause them to cease such work.
6.3 Either party may terminate this Agreement if the other
party materially breaches any of its material obligations
of this Agreement and fails to cure such breach within
thirty (30) days after receiving written notice of the
breach.
6.4 There shall be no termination charges for Services not
yet provided, or for Software not yet provided or not yet
accepted. Adobe will be responsible for payment of all
Services provided and all Software that has been
accepted by Adobe prior to the effective date of
termination.
6.5 Upon termination of this Agreement by Licensor for
Adobe’s breach in accordance with Section 6.3, Adobe
shall cease all use of the Software, and shall promptly
return if it is the case all copies of the Software to
Licensor, or else destroy those copies and provide
assurances to Licensor that it has done so.
6.6 Termination is not an exclusive remedy for breach and
is in addition to other rights or remedies that may be
available.
7
Delivery and Scheduling
7.1 Licensor shall use all commercially reasonable efforts
to deliver the Software per Adobe’s requested delivery
date (“Delivery Date”) as set forth herein. Licensor
shall deliver the Software or provide access to the
Software as a Service in electronic form.
7.2 Licensor
shall
promptly
perform
Services
as
scheduled. Licensor shall promptly notify Adobe if it is
unable to perform any scheduled Services and shall
state the reasons for such inability.
7.3 Adobe may reschedule any Delivery prior to the
Delivery Date at no additional charge by providing
Licensor with prior written notice.
7.4 Adobe may place any portion of a delivery on hold by
written notice, which shall take effect immediately upon
receipt. Any deliveries placed on hold will be
rescheduled or terminated in accordance with Section
6 within a reasonable time.
7.5 Adobe shall have no obligation with respect to the
purchase of Software or Services under this
Agreement until such Software or Services are
received by Adobe on the Delivery Dates for such
ordered Software or Services.
8
Warranty and Disclaimer
8.1 Licensor represents and warrants to Adobe that the
Software and Services furnished hereunder for the
entire term of the license following delivery or provision
of access to Adobe:
8.2 The Software licensed in this Agreement is free from
significant
programming
errors
and
defects
in
workmanship
and
materials,
and
substantially
complies with functionality and performance set forth in
Licensor’s published specifications or as otherwise
expressly agreed in writing.
8.3 The Software is free from any Illicit Code or Open
Source Code at the time of delivery to Adobe.
8.4 The Services shall be provided in a workmanlike and
competent manner in accordance with the professional
standards in Licensor’s trade or industry, and shall
meet the
descriptions, specifications,
and the
performance standards stated herein.
8.5 If the Software fails to conform to the foregoing
warranties, Licensor shall promptly correct any non-
conforming Software. Licensor shall pay the cost of
shipping and risk of loss for all non-conforming
Software. This Section states Adobe’s sole remedy
and Licensor’s sole liability with respect to any failure
of the Software to conform to the foregoing warranties.
8.6 If the Services fail to conform to the foregoing
warranties, Licensor shall promptly re-perform the
Services without any additional charge to Adobe in a
manner to cause such services to conform to the
foregoing warranties.
8.7 EXCEPT AS SPECIFICALLY SET FORTH HEREIN,
ALL
SOFTWARE,
DOCUMENTATION
AND
SERVICES ARE PROVIDED “AS IS” AND WITHOUT
WARRANTY OF ANY KIND. EXCEPT AS SET
FORTH HEREIN, LICENSOR AND ITS LICENSORS
MAKE NO WARRANTY OF ANY KIND. EXCEPT AS
SET
FORTH
HEREIN,
SUPPLIER
AND
ITS
LICENSORS MAKE NO OTHER WARRANTIES,
EXPRESS,
IMPLIED,
STATUTORY,
OR
OTHERWISE
REGARDING
THE
SOFTWARE,
DOCUMENTATION, OR SERVICES PROVIDED
UNDER THIS
AGREEMENT,
AND
LICENSOR
SPECIFICALLY
DISCLAIMS
THE
STATUTORY
WARRANTY AGAINST NON-INFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE.
9
CONFIDENTIALITY AND PUBLICITY
9.1 During the term of this Agreement, either party may be
provided access to the other party’s non-public,
technical
and
non-technical,
oral
and
written
information whether in printed, textual, graphic or
electronic form including but not limited to data,
designs, specifications, processes, and all other
business,
product,
and
financial
information
(“Confidential Information”). The receiving party agrees
to maintain
the
disclosing
party’s
Confidential
4
Information in accordance with the terms of this
Agreement, and in accordance with the terms of any
separately
executed
nondisclosure
agreement
between the parties.
9.2 Confidential
Information
does
not
include any
information that the receiving party can demonstrate by
competent evidence was: (a) known to it prior to its
disclosure by the disclosing party; (b) is or becomes
known through no wrongful act of the receiving party;
(c) has been rightfully received from a third party with
the right to make such a disclosure; (d) is
independently developed by the receiving party without
the use of the disclosing party’s Confidential
Information; or (e) has been approved for release by
the disclosing party’s prior written authorization.
Notwithstanding the foregoing, the receiving party may
disclose the disclosing party’s Confidential Information
pursuant to the terms of a court order or as otherwise
required by law, provided that the receiving party
provides prompt advanced notice to the disclosing
party to enable the disclosing party to seek a protective
order or otherwise limit or prevent the disclosure.
9.3 Receiving party agrees to: (a) maintain disclosing
party’s Confidential Information in confidence and limit
disclosure on a need-to-know basis, (b) take all
reasonable precautions to prevent unauthorized
disclosure, and (c) treat such information as it treats its
own comparably sensitive information, until the
Confidential Information no longer meets the definition
of Confidential Information as set forth in this
Agreement through no fault of Receiving party. Each
party hereby represents that it has entered into a
written agreement with each of its employees requiring
them to maintain in confidence the confidential
information of third parties that said employees receive
in the course of their employment.
9.4 Each party agrees that it will not disclose the existence
of this Agreement, or any of its provisions, to any third
party without the specific, prior, written consent of the
other party hereto. If disclosure of this Agreement, any
of its terms, or any other Confidential Information
disclosed hereunder is required by applicable law, rule,
or regulation, or is compelled by a court or government
agency, authority or body, then the following provisions
shall apply: (a) the parties shall use all legitimate and
legal means to minimize the disclosure to third parties
of the contents of this Agreement, including but not
limited to seeking a protective order; (b) the party being
requested to disclose the terms of this Agreement or
other Confidential Information shall inform the other
party as soon as possible following the receipt of the
notice purporting to require disclosure, but in no event
less than ten (10) business days in advance of the
disclosure; and (c) the party from whom disclosure is
sought shall give the other party a reasonable
opportunity to review and comment upon the
disclosure, and any request for confidential treatment
or a protective order pertaining thereto, prior to making
the disclosure. The parties may disclose the terms of
this Agreement in confidence to their respective legal
counsel, accountants, bankers, and financing sources
as necessary in order to obtain services from such third
parties. The obligations stated in this Section shall
survive the termination of this Agreement. Neither
party may use the other party’s name or trademarks in
advertisements,
brochures,
banners,
letterhead,
business
cards,
reference
lists,
or
similar
communications without the other party’s prior written
consent.
10 INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 Licensor shall defend, indemnify and hold Adobe
harmless from any costs, expenses (including
reasonable attorneys’ fees) incurred as a result of any
claim by a third party of any alleged or actual
infringement of any copyright, trade secret, trademark,
or patent by the Software or Services. Licensor shall
have sole control of the defense of any such action,
provided, however, that Adobe may participate in the
action at its own expense. Any settlement of the action
that requires Adobe to surrender any rights shall
require Adobe’s prior consent. Adobe shall provide
Licensor
with
all
reasonable
assistance
and
information with respect to any such claim, at
Licensor’s expense.
10.2 Notwithstanding the foregoing, Licensor shall have no
liability for any claim of infringement to the extent it is
based on: (a) the use by Adobe of any specified
release of any Software beyond a reasonable transition
period after Licensor notifies Adobe in writing that
continued use of the specified release may subject
Adobe to such claim of infringement, provided that (i)
no later than the date of the notice, Licensor has
provided Adobe with a replacement release of the
affected Software that has performance, features, and
functionality at least equal to the Software release
being replaced, and (ii) such claim of infringement
would have been avoided by the use of such
replacement release; and (b) the modification of any of
the Software by anyone other than Licensor, or an
agent
of
Licensor,
or
pursuant
to
Licensor’s
instructions.
10.3 If a third party’s claim endangers or disrupts Adobe’s
use of the Software, Licensor shall, at no charge to
Adobe, (a) obtain a license so that Adobe may continue
use of the Software, (b) modify the Software to avoid
infringement without impairment of the functionality of
the Software, or (c) replace the Software with a
compatible, functionally equivalent and non-infringing
product; or, if options (a) through (c) cannot be
accomplished under commercially reasonable terms,
(d) terminate this Agreement, and refund to Adobe the
amount paid for the Software, minus depreciation on a
straight-line five-year basis.
10.4 The foregoing provides the entire set of obligations
and remedies flowing between Licensor and Adobe
5
arising from any third party claim of intellectual property
infringement by the Software.
11 COMPLIANCE WITH LAWS AND RULES
11.1 Each party shall comply with all applicable national,
state, and local laws, executive orders and regulations
governing the manufacture, export, transportation,
and/or sale of items and/or the performance of services
in the course of this Agreement. These may include
but are not limited to Department of Commerce
Regulations such as U.S. Export Administration
regulations, the United States Foreign Corrupt
Practices Act of 1977, and regulations of the Securities
and
Exchange
Commission,
the
Environmental
Protection Agency, and Department of Transportation
regulations applicable to hazardous materials. Neither
Licensor nor any of its subsidiaries will export or re-
export any technical data, process, product, or service,
directly or indirectly, to any country for which the United
States government or any agency thereof requires an
export license or other government approval without
first obtaining such a license.
11.2 Licensor shall abide by all of Adobe’s reasonable rules
and regulations provided in writing to Licensor while on
Adobe’s premises or performing Services.
12 INSURANCE
12.1 Without limiting or quantifying Licensor’s liabilities,
obligations, or indemnities otherwise assumed by
Licensor pursuant to this Agreement, Licensor shall
maintain, at its sole cost and expense, commercial
general liability and automobile insurance with limits of
liability not less than one million U.S. dollars
($1,000,000) per occurrence and including liability
coverage for bodily injury or property damage assumed
in a contract or agreement pertaining to Licensor’s
business and arising out of operating that business or
as requested by the applicable law and in strict
compliance with the law and this agreement. The
above coverage shall name Adobe as an additional
insured.
12.2 Licensor shall also maintain statutory Workers’
Compensation coverage, including a Broad Form All
States Endorsement in the amount required by law,
and Employers’ Liability Insurance coverage in the
amount of one million U.S. dollars ($1,000,000) per
occurrence
or as requested by the applicable law and
in strict compliance with the law and this agreement.
Such insurance shall include an insurer’s waiver of
subrogation in favor of Adobe.
12.3 If Licensor is providing any professional service to
Adobe, Licensor shall maintain Professional Liability
Insurance (including errors and omissions coverage)
with liability limits not less than one million U.S. dollars
($1,000,000)
or as requested by the applicable law and
in strict compliance with the law and this agreement.
12.4 Licensor shall provide Adobe with properly executed
Certificates of Insurance prior to commencement of
any operation hereunder, and shall notify Adobe, no
less than thirty (30) days in advance, of any reduction
or cancellation of the above coverages.
13 GENERAL INDEMNIFICATION
Licensor shall defend, indemnify, and hold Adobe
harmless from and against any and all claims,
liabilities, demands, penalties, forfeitures, suits,
judgments, and the associated costs and expenses
(including reasonable attorney’s fees) resulting from
third party claims for death or personal injury (including
bodily injury) to any person, destruction or damage to
any property, or any violation of law, governmental
regulations or orders, arising from Licensor breach of
its obligations here or any acts, errors, or omissions by
Licensor,
its
employees,
officers,
agents,
representatives, or subcontractors in the performance
of this Agreement, provided that Adobe shall: (a)
promptly notify Licensor of such claim or demand; (b)
tender sole control of the defense thereof to Licensor
and (c) provide Licensor with reasonable assistance
and information with respect to any such claim, at
Licensor’s expense.
14 INDEPENDENT CONTRACTOR
In performing Services under this Agreement, Licensor
is an independent contractor, and its personnel and
other representatives shall not act nor shall be deemed
to be agents or employees of Adobe. As an
independent contractor, Licensor shall be solely
responsible for determining the means and methods
for performing any Services contracted hereunder.
Licensor shall have complete charge and responsibility
for personnel it employs; however, Adobe reserves the
right to instruct Licensor to remove from Adobe’s
premises immediately any of Licensor’s personnel in
breach of this Agreement. Such removal shall not
affect any obligation of Licensor to provide Services
under this Agreement.
15 SECURITY
Licensor acknowledges Adobe’s requirement that
employees of Licensor performing work at Adobe’s
facilities who require unescorted access to those
facilities shall have no record of assaultive or
combative behavior, or theft within the last five (5)
years. Licensor understands that such employees may
be subject to criminal history investigations by Adobe
at Adobe’s expense and will be denied access to
Adobe’s facilities if any such criminal convictions are
discovered.
16 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY’S LIABILITY
ARISING
OUT
OF
OR
RELATED
TO
THIS
AGREEMENT EXCEED THE SUM OF FEES PAID BY
ADOBE
DURING
THE
ONE
YEAR
PERIOD
6
IMMEDIATELY PRECEDING THE DATE THE CAUSE
OF ACTION AROSE. IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY TO THE OTHER
PARTY FOR ANY LOST PROFITS OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY INDIRECT, SPECIAL, OR
CONSEQUENTIAL
DAMAGES,
HOWEVER
CAUSED, AND UNDER ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) AND WHETHER OR
NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY
OF
SUCH
DAMAGE.
THE
LIMITATIONS SET FORTH IN THIS SECTION 16 DO
NOT
APPLY
TO
ANY
INDEMNIFICATION
OBLIGATIONS OF LICENSOR, OR TO ANY BREACH
OF THE LICENSE RESTRICTIONS BY ADOBE, OR
TO ANY BREACH BY EITHER PARTY OF ANY
CONFIDENTIALITY RESTRICTIONS. THE PARTIES
AGREE THAT THIS SECTION 16 REPRESENTS A
REASONABLE ALLOCATION OF RISK.
17 MERGER,
MODIFICATION,
WAIVER,
AND
REMEDIES
17.1 This Agreement and any nondisclosure, information
security agreement contains the entire understanding
between Adobe and Licensor with respect to the
subject matter hereof and supersedes all prior and
contemporaneous
agreements,
dealings,
and
negotiations.
No
modification,
alteration,
or
amendment shall be effective unless made in writing,
dated, and signed by duly authorized representatives
of both parties.
17.2 No waiver of any breach hereof shall be held to be a
waiver of any other or subsequent breach.
17.3 Each party’s rights and obligations herein are in
addition to any other rights and remedies provided by
law or in equity, subject to Section 16 (Limitation of
Liability).
17.4 If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid, illegal, or
unenforceable, such determination shall not affect the
validity of the remaining provisions.
18 ASSIGNMENT
Neither party may assign or factor any rights in or
delegate any obligations under this Agreement without
the written consent of the other, which consent shall
not be unreasonably withheld. For purposes of this
Section 18, the acquisition, merger, consolidation, or
change in control of Adobe or any assignment by
operation of law shall not be deemed an assignment
that requires Licensor’s written consent. Either party
may cancel this Agreement for cause should either
party attempt to make an unauthorized assignment of
any right or obligation arising hereunder. Any
attempted assignment in violation of this Section 18
shall be null and void.
19 GOVERNING LAW; CHOICE OF FORUM AND
VENUE
This Agreement (including the arbitration agreement in
this section where applicable) and all matters relating
to this Agreement will be governed by and construed in
accordance with the laws in force in:
(A) the State of California, if Provider’s Principal Place
of Business is in the United States, Canada, or Mexico;
(B) Japan, if Provider’s Principal Place of Business is
in Japan;
(C) Singapore, if Provider’s Principal Place of Business
is in a member state of the Association of Southeast
Asian Nations (ASEAN) excluding Myanmar, mainland
China, Hong Kong S.A.R., Macau S.A.R., Taiwan
R.O.C., the Republic of Korea, Bangladesh, or Nepal;
or
(D) England and Wales, if Provider’s Principal Place of
Business is in Australia, New Zealand, India, Sri Lanka,
Myanmar, or any other location not named above.
(E) The respective courts of Santa Clara County,
California when California law applies, Tokyo District
Court when Japanese law applies, and the competent
courts of London, England, when the law of England
and Wales applies, will each have nonexclusive
jurisdiction over all disputes relating to this Agreement.
(F) When Singapore law applies, any dispute arising
out of or in connection with this Agreement, including
any question regarding its existence, validity, or
termination, will be referred to and finally resolved by
arbitration in Singapore in accordance with the
Arbitration Rules of Singapore International Arbitration
Centre (“SIAC”) for the time being in force, which rules
are deemed to be incorporated by reference into this
section. There will be one arbitrator, selected jointly by
both parties. If the arbitrator is not selected within 30
days of the written demand by a party to submit to
arbitration, the Chairman of the SIAC will make the
selection. English will be the language of the
arbitration.
(G) Notwithstanding any provision in this Agreement,
either party may request any judicial, administrative, or
other authority in any other jurisdiction to order any
provisional
or
conservatory
measure,
including
injunctive relief, specific performance, or other
equitable relief, prior to the institute of legal or
arbitration proceedings, or during the proceedings, for
the preservation of its rights and interests or to enforce
specific terms that are suitable for provisional
remedies.
(H) This Agreement will not be governed by the conflict
of laws rules of any jurisdiction, UCITA, or the United
Nations Convention on Contracts for the International
Sale of Goods, the application of which are expressly
excluded.
7
20 HEADINGS
The headings provided in this Agreement are for
convenience only and shall not be used in interpreting
or construing this Agreement.
21 RIGHT TO DEVELOP
Adobe reserves the right to develop, market, distribute,
and otherwise commercially exploit software products
or firmware products of any type whatsoever, including
without limitation independently developed software
and/or firmware that are similar to or compete with the
Software; provided that all such software and/or
firmware products were developed independently by or
on behalf of Adobe without the use of any Licensor
Confidential Information.
22 NEW DEVELOPMENTS
Adobe and Licensor agree that as of the Effective Date
no joint development work or development work by
Licensor at Adobe’s request is contemplated by this
Agreement. If at any time Adobe and Licensor agree
to perform such development work, prior to the start of
any such development, Adobe and Licensor shall enter
into a separate agreement that shall include at a
minimum each party’s obligations as well as all
applicable ownership provisions.
23 CUSTOMS AND EXPORT CONTROL
Adobe and Licensor shall take appropriate steps to
ensure that the distribution and export/re-export of the
Software will be in compliance with the laws,
regulations, order, or other restrictions of the U.S.
Export Administration Regulations. Licensor will
provide, upon Adobe’s written request, all necessary
import and export related information regarding the
Software to meet any applicable export or import
regulation, including, without limitation, a statement of
origin for all Software and applicable documentation for
Software that is wholly or partially developed or
packaged outside of the country of import.
24 SURVIVABILITY
The following sections shall survive termination or
expiration of this Agreement: Sections 2, 3, 9, 10, 11,
13, 16, 17, 21, and 23, and all payment obligations
incurred prior to the termination or expiration of this
Agreement shall survive any such termination or
expiration of this Agreement. In addition, any right or
legal obligation of a party contained in any addendum
or amendment, which by its express term or nature
would reasonably extend for a period beyond the term
of this Agreement, shall also survive the termination of
this Agreement for such extended period.
25
FORCE MAJEURE
Nonperformance of either party shall be excused to the
extent that performance is rendered impossible by
strike, fire, flood, governmental action, earthquake,
failure of suppliers, or any other reason where failure
to perform is beyond the reasonable control of the
nonperforming party up to a maximum of forty-five (45)
days.
26
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement
between Adobe and Licensor with respect to the
acquisition of the Software and Services described
herein and supersedes all prior oral and written
communications and agreements relating thereto.
8
EXHIBIT A
SUPPORT EXHIBIT
1.
Compensation. So long as Adobe pays the fees for Support, Licensor shall provide the Support services set forth in
this Exhibit. Adobe shall not be liable for the payment of any fees for Support except for such periods for which it has
agreed.
2.
Support. Provided that Adobe is current with Support payments, Licensor agrees to provide Adobe with the following:
a.
All Releases, Updates and Upgrades for each Software programmed licensed by Adobe. Releases, updates
and Upgrades shall be provided in the form requested by Adobe.
b.
To the extent Licensor supports the hardware, Licensor shall provide Adobe with system reconfiguration
Releases for hardware compatibility and support to ensure that the Software remains compatible with Adobe’s
operating system software versions to the extent they are officially supported by Licensor.
c.
Qualified telephone support available during normal Time Zone business hours (8:00 a.m. through 5:00 p.m.)
for the Software, excluding holidays.
The computing, operating and networking infrastructure of the Networks
is monitored 24/7/365 to detect abnormalities. This includes environmental monitoring, network monitoring,
load balancing monitoring, web server and database monitoring, firewall services and intrusion detection.
d.
Email support at the following address:
e.
Telephone support at the following number:
If the software fails to conform to the specifications set forth herein, Licensor agrees to use commercially reasonable
efforts to modify the Software to conform to said specifications, and to respond to general questions from Adobe
regarding the use and functionality of the Software, according to the procedure and priority levels set forth below, as
determined by Adobe:
Priority Level
Critical
Urgent
Routine
Priority Level Defined
(The Software’s “Features” and
“Functions” as used herein are
limited to those described in the
Documentation.)
A problem preventing the
operation of a major Function
An issue impairing the
operation of a major
function of the software
A problem impacting a
minor, but desired,
specified function or
feature of the Software.
Response Time
Within one business hour
Within two business
hours
Within five business
days
