Consumer Marketplace Agreement
THIS AGREEMENT IS WITH ADOBE SYSTEMS INCORPORATED ("ADOBE"), A U.S.-BASED COMPANY, AND YOU AGREE THAT YOUR RELATIONSHIP WITH ADOBE WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, UNITED STATES, AS SET FORTH IN SECTION 9.
This Consumer Marketplace Agreement ("Agreement") sets forth the terms and conditions for your use of the Photoshop Marketplace and the OSMF Marketplace (collectively, the "Marketplace") and all transactions enacted via the Marketplace, except as otherwise expressly provided. If the person using the Marketplace is doing so on behalf of a company, "You" means that person and that company, and that person represents and warrants that he or she has all necessary authority to bind that company to the terms and conditions of this Agreement.
Adobe reserves the right to modify the Agreement and other guidelines, terms and/or conditions posted on the Marketplace and Adobe.com from time to time at its sole discretion.
1.1 Adobe. Adobe and its respective suppliers and licensors shall retain all right, title and interest in and to the Marketplace and all portions thereof, including, without limitation, all Intellectual Property Rights thereto.
1.2 Products. Products, software, code, material, text, data, images and other works of authorship offered through the Marketplace ("Products") may be subject to additional terms, including but not limited to end user license agreements supplied by the publishers of those Products ("Marketplace Publishers").
1.3 Payments. Payments for any Products shall be handled in accordance with the applicable third party's policies. By engaging in a transaction which utilizes a third party payment mechanism, You agree and acknowledge that Adobe shall not be liable for any damages or claims which are incurred as result of such transaction.
1.5 Marketplace. Marketplace Publishers are solely responsible for performing, all installation, training, support, and other services requested or required for those Products you acquire through the Marketplace. By utilizing the Marketplace, you agree and acknowledge that Adobe is not liable for any Products which do not perform as advertised or stated, including but not limited to any liability related to compatibility with hardware or software. For more information on how to obtain support for a Product please see http://www.adobe.com/go/enduserfaq.
Warranties And Disclaimers. Adobe provides the Marketplace "AS IS." ADOBE AND ITS SUPPLIERS MAKE NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE MARKETPLACE, YOUR TRANSACTIONS, OR THOSE PRODUCTS OBTAINED THROUGH THE MARKETPLACE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, EVEN IF ADOBE OR ANY COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU BEAR THE ENTIRE RISK AS TO THE USE OF THE MARKETPLACE, YOUR TRANSACTIONS, THE PRODUCTS AND ANY USE OF A THIRD PARTY PAYMENT MECHANISM. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY.
THE USE OF THE MARKETPLACE, INCLUDING BUT NOT LIMITED TO YOUR TRANSACTIONS, AND THE DOWNLOADING AND/OR USE OF ALL PRODUCTS IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. ADOBE ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER OR DEVICE IN CONNECTION WITH YOUR USE OF THE MARKETPLACE, THE PRODUCTS OR YOUR TRANSACTIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ADOBE OR THROUGH OR FROM THE MARKETPLACE, THE PRODUCTS OR A THIRD PARTY PAYMENT MECHANISM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. ANY AGREEMENTS ENTERED INTO WITH THIRD PARTIES ARE AT YOUR OWN RISK.
THE MARKETPLACE MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. ADOBE MAY MAKE CHANGES TO THE MARKETPLACE AT ANY TIME WITHOUT NOTICE.
Limitation of Liability. You shall, at your own expense, indemnify, defend and hold Adobe harmless from and against any and all claims, costs, fees (including reasonable attorneys' fees), damages, liabilities and expenses to the extent such claim arises out of: (a) any breach of this Agreement, (b) any claims or allegations made in connection with your use of a third party payment mechanism, (c) any breach or alleged breach of any representations and warranties made by a Marketplace Publisher concerning any aspect of a Product, including but not limited to compatibility, (d) any claims made by or on behalf of any third party pertaining directly or indirectly to Your use of a Product, (e) any alleged or actual violation of your privacy or other rights by a third party, including but not limited to a Marketplace Publisher, and (f) any allegations based on a product liability claim.
Indemnity. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL ADOBE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF ADOBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) ADOBE'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE LESSER OF $50 OR THE AMOUNTS RECEIVED BY ADOBE IN CONNECTION WITH THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. You acknowledge that the fees and amounts payable set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that the other party would not enter into this Agreement without these limitations on its liability. Each party agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this Agreement. Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply.
Export. You acknowledge and agree that Products 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, "Export Laws"). In addition, if a Product or the Marketplace is identified as an export controlled item under the Export Laws, You represent and warrant that You are not a citizen of, or located in, an embargoed or otherwise restricted nation (including Iran, Syria, Sudan, Cuba, and North Korea) and that You are not otherwise prohibited under the Export Laws from receiving Products or utilizing the Marketplace.
Release. You will not hold Adobe responsible for any damages, costs or liabilities of any kind arising out of or in connection with participation in the Marketplace, use of any Product, use of any third party payment mechanism, and You hereby release Adobe, jointly and separately, from any and all such claims. If you are a California resident, you waive California Civil Code § 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Governing Law; Venue. This Agreement shall be governed by the laws of the State of California, and the parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts located in Santa Clara County, California without regard to any conflicts of laws principles that would require the application of the laws of another jurisdiction. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including, without limitation, reasonable attorneys' fees. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.