ADOBE SYSTEMS INCORPORATED
ADOBE AIR SDK
WARRANTY DISCLAIMER AND DISTRIBUTION LICENSE AGREEMENT
WARRANTY DISCLAIMER AND DISTRIBUTION LICENSE AGREEMENT
NOTICE TO USER: THIS DOCUMENT INCLUDES WARRANTY INFORMATION AND A LICENSE AGREEMENT GOVERNING DISTRIBUTION OF THE ADOBE AIR SDK.
I. WARRANTY DISCLAIMER
The Adobe AIR SDK is made available by Adobe for reproduction and distribution "AS IS" and Adobe makes no warranty as to its use or performance. ADOBE AND ITS SUPPLIERS DO NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SDK, EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. ADOBE AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF ANY PARTY'S RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
II. DISTRIBUTION LICENSE AGREEMENT
This is a contract between [FIRST NAME], [LAST NAME], [COMPANY NAME] located at [ADDRESS, CITY, STATE, ZIP, COUNTRY] ("Distributor") and Adobe Systems Incorporated. This agreement is effective against Adobe only if Distributor has provided Adobe with information about its intended distribution including information about its Licensed Developer Package with which it will bundle the SDK Components and Adobe has confirmed its acceptance of this agreement in writing to Distributor. If you enter into this agreement in error, you may rescind your acceptance prior to distributing the SDK Components by returning this written agreement, along with a signed written statement of your desire to rescind the agreement, to: Adobe Systems Incorporated, ATTN: General Counsel, 345 Park Avenue, San Jose, California 95110.
"Authorized Operating System(s)" means the desktop or standard-laptop version(s) of the operating system(s) set forth in Exhibit A which, any event, must be one of the Authorized Operating Systems listed at http://www.adobe.com/products/air/systemreqs/. See Section 2.4 (c) for information about systems that are in no event Authorized Operating Systems.
"Runtime Software" means the Adobe runtime software in object code format named "Adobe AIR" that is to be installed by end-users, and all updates to such software made available by Adobe.
"Build Tools" means the complete set of build files, compilers, runtime libraries, and other tools included in the Adobe AIR SDK, including, for example, the contents of the Bin, Lib, and Runtime directories, adl.exe, adl.bat, adt.jar.
"Documentation" means the complete set of written materials licensed under the Adobe AIR SDK Software License Agreement, including, for example, technical specifications, file format documentation and application programming interface (API) information.
"Effective Date" means the date that Adobe confirms its acceptance of this agreement in writing to Distributor.
"Intranet" means a secure internal web site or server system that is accessible only to Distributor's employees, contractors, or other persons granted access to Distributor's internal networks in the furtherance of Distributor's normal course of business.
"Licensed Developer Package(s)" means the Integrated Development Environment (IDE) or other developer tools or software developer kit(s) developed and offered by Distributor as listed in Exhibit A, which, in all cases operate only on the Authorized Operating System(s).
"SDK Components" means each of the following component sets included in the Adobe AIR SDK: Build Tools, Documentation, Sample Code, SDK Source Files and the SDK End User License File.
"SDK End User License File" means the .pdf document file named "SDK License" included in the Adobe AIR SDK.
"SDK Source Files" means the complete set of framework source code files included in the Adobe AIR SDK, for example the source files in the src, frameworks, and templates folder files.
"Sample Code" means the complete set of sample software in source code or object code format included in the Adobe AIR SDK that are designated in the Documentation or directories as "sample code," "samples," "sample application code," "quickstart code" or "snippets."
2. License, Requirements, Restrictions.
2.1 License. Subject to the terms of this agreement, including the important restrictions below, and only for purposes of achieving the distribution described in Exhibit A, Adobe grants Distributor the non-exclusive worldwide non-transferable, non-sublicensable right to:
(a) install or copy one or more SDK Components (but not a portion of any component set) on a computer file server for the purpose of downloading and installing such SDK Component(s) onto computers within Distributor's Intranet, for internal use only;
(b) distribute one or more SDK Components (but not a portion of any component set) on a standalone basis only on physical media (such as CD-ROMs, DVDs, hard disk, etc.);
(c) bundle one or more of the SDK Components (but not a portion of any component set) as part of, with, or in conjunction with Licensed Developer Package and distribute such bundle on physical media (such as CD-ROMs, DVDs, hard disk, etc.) or electronically to end-users through multiple levels of distribution. ; and
(d) modify the SDK Source Files and Sample Code (but not the Build Tools or Documentation) prior to the distribution permitted above. The rights granted above shall terminate immediately in the event of Distributor's breach of any provision of this agreement.
(a) SDK End User License File. When distributing one or more SDK Components as permitted by Section 2.1, whether on a standalone basis or bundled with other software, Distributor will include the SDK End User License File as a prominent portion of each such distribution (e.g., within the file directory that includes SDK Components). When distributing the SDK Components with a Licensed Developer Package, Distributor will include a statement substantially similar to the following within either the end-user software license under which it distributes such package or another prominent portion of its package : "The [name of Licensed Developer Package] includes all or part of the Adobe AIR SDK. Use of the Adobe AIR SDK is governed by the Adobe AIR SDK end user license agreement that can be found [location of SDK End User License File within the Licensed Developer Package]." Distributor will not permit the copying, installation, use or distribution of any SDK Component in any manner other than under the terms of this agreement or the SDK End User License File.
(b) Distributable Version, Access. Distributor will distribute only the version of the Adobe AIR SDK provided to Distributor by Adobe upon completion of this agreement for use on the operating system listed in Exhibit A. Distributor will not distribute any version of the SDK Components found elsewhere, including on www.Adobe.com or any other download site on the Internet. Adobe may provide Distributor with access to the distributable version of the Adobe AIR SDK via electronic download at a specified non-public website. Distributor will not disclose the location of such website to any third party.
2.3 New Versions. Upon release of a new version of the Adobe AIR SDK by Adobe, Distributor will cease all reproduction and distribution of the previous version of the SDK Components upon the earlier of (a) the next release of the Licensed Developer Packages with which Distributor bundles the SDK Components or (b) six (6) months after the date Adobe makes such new version commercially available. As used in this section, "new version" means a major new release of the Adobe AIR SDK (e.g., 1.0.x to 1.1). Adobe may notify Distributor when new versions are released.
(a) No Unauthorized Distribution. Unless Distributor has separate written permission from Adobe, it will not distribute the SDK Components in any manner not permitted by section 2.1.
(b) Authorized Usage. Distributor is permitted to distribute the Build Tools only for purposes of enabling the building, testing, and outputting of developer applications compatible with the Runtime Software. Distributor shall not configure or distribute the Build Tools as a replacement or substitute for the Runtime Software. For example, Distributor is not permitted to distribute the Build Tools for purposes of allowing or encouraging developers to build software applications that run on the Build Tools rather than the Runtime Software.
(c) Authorized Operating Systems. In no event will Distributor distribute any SDK Component for use on any non-PC device or for use on any embedded or device version of any operating system. For the avoidance of doubt, and by example only, Distributor will not distribute any SDK Component for use on any (A) mobile device, set top box (STB), handheld, phone, web pad, tablet or Tablet PC (that are not running Windows XP or Windows Vista Tablet PC Edition), game console, TV, DVD player, media center (excluding Windows XP and Windows Vista Media Center Edition and its successors), electronic billboard or other digital signage, internet appliance or other internet-connected device, PDA, medical device, ATM, telematic device, gaming machine, home automation system, kiosk, remote control device, or any other consumer electronics device, (B) operator-based mobile, cable, satellite, or television system, (C) other closed system device, or (D) any operating system that is not an Authorized Operating System.
(d) No Modification, Reverse Engineering. Distributor will not modify any SDK Component other than the SDK Source Files and Sample Code without obtaining separate written permission from Adobe. Distributor shall not unbundle or modify the Build Tools. Distributor will not create derivative works, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any SDK Component provided in object code or compiled format.
(e) No Stand Alone Internet Distribution. Distributor will not make any SDK Component available on the Internet on a stand-alone basis.
3. Trademark Use.
3.1 Trademark License Grant. Adobe hereby grants to Distributor, and Distributor accepts, a worldwide, non-exclusive, non-transferable, personal right to use, under the terms of this agreement, the "supports Adobe AIR" and "Adobe AIR Support" logos, or such additional or replacement logo(s) as Adobe may provide under this agreement (the "Trademarks"), on a CD/DVD label, product packaging, website(s) and product literature related to the Licensed Distributor Package.
3.2 Trademark Usage. Distributor may use the Trademarks solely in conjunction with the permitted forms of distribution of the SDK Components specified in Section 2 of this agreement, so long as such use also complies with the Guidelines for Using the "supports Adobe AIR" and "Adobe AIR Support" logos provided to Distributor by Adobe, and the "Adobe Trademark Guidelines for third parties who license, use or refer to Adobe trademarks," available from the Adobe web site (http://www.adobe.com/misc/agreement.html). Such guidelines may be revised and updated at any time by Adobe and Distributor shall remain at all times in compliance with the then-current version of the guidelines. Use of the Trademarks does not give Distributor any right, title or interest in the Trademarks, other than the license rights granted herein. Distributor may not assign, transfer or sublicense any trademark right granted herein without the prior written consent of Adobe. Distributor agrees not to use the Trademarks in any way that will disparage Adobe or its products, injure Adobe's reputation for high quality or otherwise diminish or damage Adobe's goodwill in the Trademarks or infringe Adobe's intellectual property. Distributor acknowledges the validity of the Trademarks and Adobe's sole ownership of the Trademarks, and that Adobe retains all right, title and interest in and to the Trademarks. Distributor recognizes the value of the goodwill associated with the Trademarks, and acknowledges that such goodwill inures exclusively to the benefit of and belongs to Adobe. Distributor shall employ best efforts to use the Trademarks in a manner that does not derogate from Adobe's rights in the Trademarks and will take no action that will interfere with or diminish Adobe's rights in the Trademarks. Distributor may not use the Trademarks in any way as an endorsement or sponsorship by Adobe of any product or service. Distributor agrees not to adopt or use a trademark, service mark, or any other designation confusingly similar to the Trademarks. Further, Distributor agrees to use the Trademarks only in connection with products that: (a) meet or exceed all applicable U.S. and foreign labeling and packaging laws and regulations, (b) are advertised in compliance with all applicable U.S. and foreign fair advertising laws and regulations, (c) comply with all other applicable U.S. and foreign laws and regulations, (d) support Adobe products if so indicated on packaging and/or advertising materials for Distributor's products, (e) are of a quality and reputation consistent with the high quality of Adobe products and services, and (f) are advertised in a manner consistent with industry standards. Upon reasonable request from Adobe, Distributor will notify Adobe of the locations of your use of the Trademarks and furnish Adobe with suitable specimens of such use. If Adobe so requests, Distributor agrees to submit to Adobe any uses of the Trademarks for Adobe's approval prior to the dissemination of these materials, such approval not to be unreasonably withheld. Distributor agrees to undertake such steps as Adobe may reasonably request to assist in monitoring and maintaining the quality and form of use of the Trademarks. Adobe may review Distributor's use of the Trademarks at any time to evaluate its compliance with the quality standards described in this agreement. If at any time Adobe determines that Distributor is not maintaining adequate quality standards, Distributor shall be considered in breach of this agreement and subject to the termination provisions of Section 12. Distributor must immediately remedy any material deficiencies in its use of the Trademarks upon reasonable notice from Adobe. Adobe makes no warranties of any kind, either express or implied, with respect to the Trademarks. Adobe will not be liable to Distributor for any consequential, incidental, or special damages (including loss of business profits) arising from or related to Distributor's use of the Trademarks, even if Adobe has been advised of the possibility of such damages. If Adobe provides Distributor with a substitute Trademark(s), Distributor shall bear all liability for continued use of the previous Trademark(s).
Distributor will indemnify, hold harmless and defend Adobe from and against any claims, lawsuits, damages, expenses and costs, including attorneys" fees, that arise or result from Distributor's reproduction or distribution of the SDK Components, or Distributor's use and/or distribution of the Trademark(s), provided, however, that Distributor's indemnification obligation will not apply to claims or lawsuits arising out of a claim that either the SDK Components, by themselves or in combination with software or hardware not provided by Distributor, or the Trademark(s), infringes any third party patent, copyright, trademark or other intellectual property right. The foregoing exception will not apply to claims arising out of the combination of the SDK Components or Trademark(s) with other software provided by Distributor. Adobe will give Distributor prompt written notice of any claim or lawsuit to which Distributor's indemnification obligation applies and cooperate with Distributor, at Distributor's expense, in defending or settling such claim or lawsuit.
5. Intellectual Property Ownership, Copyright Protection.
The SDK Components and any authorized copies that Distributor makes are the intellectual property of and are owned by Adobe Systems Incorporated and its suppliers. The structure, organization and code of the object code portions of the SDK Components are the valuable trade secrets and confidential information of Adobe Systems Incorporated and its suppliers. The SDK Component are protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant Distributor any intellectual property rights in the SDK Components and all rights not expressly granted are reserved by Adobe and its suppliers.
6. Technical Support.
Adobe is not obligated to provide any support to Distributor, its distributors, or end-users. For information on technical support for Adobe AIR and the Adobe AIR SDK, please visit http://www.adobe.com/go/airsdk_support.
7. Copies of Product to Adobe.
Unless the SDK Components are distributed via Distributor's Intranet, at Adobe's request Distributor will provide Adobe two (2) copies of the Licensed Developer Package free of charge within seventy-two (72) hours of Adobe's request. This will facilitate resolving potential quality assurance issues with Distributor's incorporation of SDK Components. In the event that the Licensed Developer Package contains Distributor confidential information, Adobe will cooperate with entering into a confidentiality agreement with Distributor.
8. No Warranty.
The Adobe AIR SDK is made available by Adobe for reproduction and distribution "AS IS" and Adobe makes no warranty as to its use or performance. ADOBE AND ITS SUPPLIERS DO NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SDK, EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. ADOBE AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF ANY PARTY's RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SDK COMPONENTS. The foregoing exclusions and limitations will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
9. Limitation of Liability.
IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING FROM THIS LICENSE AGREEMENT AND/OR YOUR USE OF THE SDK COMPONENTS, INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. IN ANY EVENT, Adobe's AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS LICENSE AGREEMENT WILL BE LIMITED TO FIFTY U.S. DOLLARS ($50.00). Nothing contained in this agreement limits Adobe's or its suppliers" liability to you in the event of death or personal injury resulting from negligence or for the tort of deceit (fraud). Adobe is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this agreement, but in no other respects and for no other purpose.
10. Export Rules.
Distributor agrees, and will ensure that its distributors and resellers agree, that the SDK Components will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the SDK Components are identified as export controlled items under the Export Laws, Distributor represents and warrants that Distributor is not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that Distributor is not otherwise prohibited under the Export Laws from distributing the SDK Components. All rights granted under this agreement are granted on condition that such rights are forfeited if Distributor fails to comply with the terms of this agreement.
11. Governing Law.
This agreement will be governed by and construed in accordance with the substantive laws in force in the State of California. The respective courts of Santa Clara County, California shall each have non-exclusive jurisdiction over all disputes relating to this agreement. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
The term of this agreement will be for one (1) year from the Effective Date unless terminated earlier pursuant to this Section 12. Adobe has the right to terminate this agreement and all licenses included herein immediately if Distributor fails to comply with any term of this agreement. Upon any such termination, Distributor must cease all reproduction and distribution of the SDK Components, any use of the Trademarks, and, upon request from Adobe, destroy all copies of the SDK Components in Distributor's possession along with certification of such destruction. However, except in the case of a breach of Section 2.4 or 3, Distributor will have a reasonable period of time, not to exceed 90 days, to distribute tangible copies of the Licensed Distributor Package then in its inventory and to use the then-current version of the SDK Components to the extent necessary for Distributor to support its end users.
All requests and notices given under this agreement will be in writing and will be by personal delivery or by certified or registered mail, return receipt requested (or in the case of notices from Adobe to Distributor, by e-mail) and will be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon sending of electronic transmission. Notices from Distributor to Adobe will be sent to the following address: Adobe Systems Incorporated, 345 Park Avenue, San Jose, California 95110, Attention: General Counsel. Notices from Adobe to Distributor will be sent to the address Distributor provides to Adobe with this agreement. Distributor warrants that the personal information it provided with this agreement is accurate and current as of the date Distributor provided such information.
14. General Provisions.
If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which shall remain valid and enforceable according to its terms. This agreement shall not prejudice the statutory rights of any party dealing as a consumer. This agreement may only be modified by a writing signed by an authorized officer of Adobe. Updates may be licensed to Distributor by Adobe with additional or different terms. This is the entire agreement between Adobe and Distributor relating to reproduction and distribution of the SDK Components and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the SDK Components.
15. Audit Right.
Distributor agrees that upon request from Adobe or Adobe's authorized representative, Distributor will within thirty (30) days fully document and certify that Distributor is in conformity with the terms and conditions of this agreement. During the term of this agreement, Distributor will use commercially reasonable efforts to maintain a complete, clear, and accurate record of the number of copies of the SDK Components it distributes during each calendar quarter in a manner sufficient to allow Adobe to verify compliance with the terms and conditions of this agreement. Adobe shall have the right to inspect and audit all Distributor relevant books and records relating to the reproduction and distribution of the SDK Components. Information obtained in connection with the audit will only be used to enforce Adobe's rights and determine whether Distributor is in compliance with the terms and conditions of this agreement. Any such audit shall be conducted upon not less than seven (7) days" notice at Distributor's offices during regular business hours and in such a manner as not to unreasonably interfere with Distributor's normal business activities.
If Distributor has any questions regarding this agreement or if Distributor wishes to request any information from Adobe, please contact Adobe's customer service at http://www.adobe.com.
EXHIBIT A (will be completed in final agreement)
Name and Description of Licensed Distributor Package
Authorized Operating System(s) and platform(s)
Approximate number of copies to be distributed in the next 12 months
Authorized manner of distribution and usage