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End-User License Agreement

MACROMEDIA® BREEZE™ ENTERPRISE SOFTWARE LICENSE AGREEMENT

IMPORTANT: THIS AGREEMENT (or “EULA”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“CUSTOMER”) AND MACROMEDIA. BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND IN ACCORDANCE WITH ITS REFUND POLICIES.

BY CHECKING THE BOX "I ACCEPT THE TERMS", YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE TERMS AND AGREEING TO BE BOUND BY THE TERMS. IF YOU ARE AN INDIVIDUAL, THEN YOU ARE CONFIRMING ACCEPTANCE ON YOUR BEHALF. IF YOU ARE A REPRESENTATIVE OF A COMPANY, THEN YOU ARE CONFIRMING ACCEPTANCE ON THAT COMPANY'S BEHALF AND CONFIRMING THAT YOU HAVE AUTHORITY FROM THE COMPANY TO ORDER THIS SERVICE AND TO BIND THE COMPANY TO THESE TERMS. YOU ARE LEGALLY RESPONSIBLE FOR EACH USER ACCESSING THE SERVICE OR THE APPLICATIONS BY MEANS OF, OR BECAUSE OF, YOUR ACCOUNT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN SELECT THE "CANCEL" BUTTON AND YOU WILL NOT RECEIVE ACCESS TO THE SERVICE.

1. Definitions

1.1 “Bundle” means the Software, together with such other Macromedia software product, if any, distributed with the Software that may be operated on the same type of computer on which the Software is operated.

1.2 “Commercial Version” means a version of the Software that is neither an Education Version, a Not For Resale Version, nor a Trial Version.

1.3 "Education Version" means a version of the Software, so identified, for use by qualified educational institutions, including the students and faculty thereof, only.

1.4 “ Fail-Over Server Version” means a version of the Software, so identified, as "Fail-Over Server" Software is only for installation and use on a server that exactly replicates the content of Customer's primary production server on which a licensed version of the same Software in installed but is only used by Customer in the event the primary production server fails.

1.5 "Not For Resale (NFR) Version" means a version, so identified, of the Software to be used to review and evaluate the Software, only.

1.6 "Macromedia" means Macromedia, Inc. and its licensors, if any.

1.7 "Software" means only the Macromedia software program(s) and third party software programs, in each case, supplied by Macromedia herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and.

1.8 "Trial Version" means a version of the Software, so identified, that may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.

2. License Grants

The licenses granted to Customer in this Section 2 are subject to the terms and conditions set forth in this Agreement. In the event Customer fails to comply with any terms of this Agreement, Macromedia may terminate the license, Customer must destroy all copies of the Software, and all other rights of both parties and all other provisions of this EULA surviving any such termination. The grants set forth in this Section apply to all Software except where it is stated that a grant is applicable only to specific Software products identified by name.

2.1 Trial Version Software License: Subject to the terms and conditions of this Agreement, Macromedia hereby grants Customer the right and license to install the Software on a single computer and use the Software only to review, demonstrate and evaluate the Software for a limited time period. The Software may not be shared, installed on different computers, or used concurrently on different computers. This license applies only to Software identified as a Trial Version.

2.2 Server-Based Software License: Subject to the terms and conditions of this Agreement, Macromedia hereby grants Customer the right and license to install and use the Software on one or more servers, provided that the total number of servers may not exceed the number of servers for which Customer has purchased licenses. A license for the Software may not be shared, installed on different servers, or used concurrently on different servers unless a license has been purchased for each server on which the Software is installed. This license applies only to Macromedia ® Breeze ™ Communication Software.

2.3 Concurrent-User-Based Software License: Subject to the terms and conditions of this Agreement, Macromedia hereby grants Customer, the right and license to install and use the Software on one or more computers, provided, however, that the total number of individuals who may simultaneously access the Software, or the presentation, information, or content displayed or delivered using the Software, may not exceed the concurrent-user licenses purchased for such installation and use. This license applies only to Macromedia ® Breeze ™ Training software and Macromedia ® Breeze ™ Meeting, Macromedia ® Breeze ™ Presenter and Macromedia ® Breeze ™ Events software.

2.4 Development Use License: Subject to the terms and conditions of this Agreement, Macromedia hereby grants Customer the right and license to install and use the Software on one or more non-production servers, provided however, that such use of the Software on such non-production servers is restricted to development or quality assurance procedures with respect to the Software.

2.5 General License Grants. Customer may make one copy of the Software in machine-readable form solely for backup purposes, provided the copy must include all copyright notices and any other proprietary legends on the original Software. License rights granted under this EULA are non-exclusive.

3. License Restrictions. Customer agrees to and accepts the following restrictions, except to the extent any such restriction is contrary to applicable law.

3.1 Customer shall not alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

3.2 Customer shall not rent, lease, or sublicense the Software. Customer shall not use, or permit the use of, the Software on a timeshare or service bureau basis, and shall not host, on a subscription basis or otherwise, the Software (a) to permit a third party to use the Software to create any content, or (b) to conduct conferences or on-line meeting services for a third party.

3.3 Other than with respect to a Trial Version or a Not For Resale Version of the Software, Customer may permanently transfer all of its rights under this Agreement only as part of a sale or transfer, provided Customer retains no copies of the Software, transfers all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which Customer is upgrading. If the copy of the Software is licensed as part of the Bundle, the Software shall be transferred only with and as part of the sale or transfer of the whole Bundle and not separately. Customer may not sell or transfer any Software purchased under a volume discount. Customer may not sell or transfer any Trial Version or Not For Resale Version of the Software.

3.4 Other than as expressly set forth with respect to Sample Application Code (as defined below), Customer shall not modify the Software or create derivative works based upon the Software.

3.5 Education Version Restrictions. Education Versions may not be used for, or distributed to any party for, any commercial purpose.

3.6 Trial Version Restrictions. Unless otherwise provided herein, Customer shall not (a) in the aggregate, install or use more than one copy of the Trial Version of the Software, (b) download the Trial Version of the Software under more than one username, (c) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (d) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without Macromedia's prior written consent, (e) use the Trial Version for any application deployment or ultimate production purpose, or (f) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a Commercial Version or Education Version of the Software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.

3.7 Not for Resale Version Restrictions. Customer shall only use the Not for Resale Version of the Software to review and evaluate the Software.

3.8 Fail Over Server Version Restrictions. Customer acknowledges and agrees that Fail Over Server Software is only for installation and use on a server that exactly replicates the content of Customer's primary production server on which a licensed version of the same Software is installed. Fail Over Server Software shall only become active in a production environment in the event that Customer's primary production server is not operational. Load balancing, or the allocation of concurrent production activity between the primary production server and the server on which the Fail-Over Software is installed, is strictly prohibited.

3.9 Customer shall not access or use the Software to design, develop, or market any application having the same primary function as the Software.

3.10 Customer may receive the Software in more than one medium but shall only install or use one medium. Regardless of the number of media received, Customer shall use only the medium that is appropriate for the computer on which the Software is to be installed. Notwithstanding anything herein to the contrary, Customer may not (A) install FlashPaper Printer on a server for multiple user access or use, or (B) modify or replace the FlashPaper Printer viewer user interface that displays FlashPaper documents.

3.11 The license of the Bundle is licensed as a single product and none of the products in the Bundle, including the Software, may be separated for installation or use on more than one computer.

3.12 If the Software is, Macromedia ® Breeze ™ Communication Server software, Macromedia ® Breeze ™ Training software, or Macromedia ® Breeze ™ Meeting software, Macromedia ® Breeze ™ Presenter software or Macromedia ® Breeze ™ Events software : Customer shall not use Macromedia JRun application server included within the Software other than solely in connection with use of the Macromedia ® Breeze ™ Software and solely in conformance with the documentations provided therewith. Customer shall not use Macromedia Flash Communication Server software that may be included within the Software other than solely in connection with use of the Macromedia ® Breeze ™ Software and solely in conformance with the documentations provided therewith. Customer shall ensure that the Macromedia ® Breeze ™ Presenter Add-in application (the “Breeze Player”) is installed and used only on a desktop or laptop computer and not on any non-PC product, including, but not limited to, a web appliance, set top box (STB), handheld, PDA, phone, or web pad device. Customer shall not permit the number of individuals simultaneously having access to the Software, or the presentation, information, or content displayed or delivered using the Software, to exceed such number of concurrent-users permitted by the license to the Software purchased by Customer. The portion of the Software that is embedded in a presentation, information, or content created and generated using the Software (the “Breeze Run-Time”) may only be used together with the presentation, information, or content in which it is embedded. Customer shall not use, and shall cause all licensees of such presentation, information, or content not to use, the Breeze Run-Time other than as embedded in such presentation, information, or content. In addition, Customer shall not, and shall cause all licensees of such presentation, information, or content not to, modify, reverse engineer, or disassemble the Breeze Run-Time.

3.13 If the Software is Macromedia ® Breeze ™ Presenter software: Customer shall not permit a person other than a person authorized by Customer (with each such authorization designated to a unique individual (an “Authorized Person”) and with the aggregate number of such authorized persons not exceeding the number permitted within the scope of the license to the Software purchased by you) to access the Software to create, modify, store, convert, manage, or display any presentation or information. In addition, you may not permit any such Authorized Person to share or disclose the username or password assigned to such Authorized Person in connection with such authorization. Furthermore, you may not permit any of your employee or agent who is not an Authorized Person to download or install the Macromedia ® Breeze ™ Plug-In for Microsoft Powerpoint.

3.14 If the Software is Macromedia ® Breeze ™ Training software, Macromedia ® Breeze ™ Meeting software, software and/or Macromedia ® Breeze ™ Events software : Customer may only install the Software on any computer in which Macromedia ® Breeze ™ Communication Server software is validly installed.

3.15 Customer may not use the Macromedia ® Breeze ™ Presenter software or Macromedia FlashPaper software to create media content for conversion by any means other than with the use of other Macromedia ® Breeze ™ products without the express written consent of Macromedia.

4. Upgrades and Bundles. If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to Customer on a license exchange basis. Customer agrees that any installation and use of such copy of the Software terminates any earlier EULA and terminates Customer's right to continue to use or transfer to another person the earlier version of the Software. If this copy of the Software is licensed as part of the Bundle, and Customer has a prior license to the same version of the Software, and the Bundle was licensed to Customer with a discount based, in whole or in part, on Customer's prior license to the same version of the Software, the Software is provided to Customer on a license exchange basis. Customer agrees, by installation and use of this copy of the Software, to voluntarily terminate the EULA with respect to such prior license to the Software and that Customer will not continue to install or use such prior license of the Software or transfer it to another person or entity.

5. Sample Application Code. Customer may modify the HTML, CFML, ActionScript, Flash Files (FLA), or similar sample application code form of those portions of the Software that are identified, if any, as sample application code in the documentation (the "Sample Application Code") solely for the purposes of designing, developing and testing Customer's own software applications. However, Customer is permitted to use, copy and redistribute modified sample code only if all of the following conditions are met: (a) Customer includes Macromedia's copyright notice (if any) with its application, including every location in which any other copyright notice appears in your application; (b) Customer does not otherwise use Macromedia's name, logos or other Macromedia trademarks to market its application; (c) there is installed and running on each server in conjunction with which Customer's application is running one or more duly licensed copies, as required, of the Commercial Version or, if applicable and subject to Section 3.6 hereof, Education Version; and (d) such modified sample code is designed to operate only in connection with the Software. Customer agrees to indemnify, hold harmless and defend Macromedia from and against any loss, damage, claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of Customer's application.

6. Pod API Software. Customer may use the pod Application Programming Interfaces ("APIs") provided by Macromedia to create custom pod code to be installed on Customer's Breeze server. Customer acknowledges and agrees that installation and use of this Customer-generated code may create system instability and unanticipated adverse effects. Customer assumes full and sole responsibility for any damages, losses, costs, delays and other adverse effects resulting directly or indirectly from Customer's installation of such code on Customer's Breeze server.

7. Ownership; Macromedia Intellectual Property. Except as expressly provided in this Agreement, Macromedia and its suppliers and licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications may develop), and all copies thereof. All rights not specifically granted in this Agreement, including U.S. and International Copyrights, are reserved by Macromedia and its suppliers and licensors. Macromedia and other trademarks contained in the Software are trademarks or registered trademarks of Macromedia, Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. Customer may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize Customer to use Macromedia's or its licensors' names or any of their respective trademarks.

8. LIMITED WARRANTY AND DISCLAIMER

Macromedia warrants that, for a period of ninety (90) days from the date of delivery: (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use. EXCEPT AS PROVIDED IN THE FOREGOING LIMITED WARRANTY, MACROMEDIA PROVIDES NO OTHER WARRANTIES FOR THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT . NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MACROMEDIA, ITS DISTRIBUTORS, RESELLERS, AGENTS OR EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY OR IN ANY WAY CHANGE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.

Provided that any non-compliance with the above warranty is reported in writing to Macromedia no more than ninety (90) days following delivery of the Software, Macromedia, at its option, will (a) supply a replacement copy of the Software that substantially conforms to the documentation, (b) provide a replacement for defective media, or (c) refund the purchase price for the non-compliant Software. Macromedia shall have no responsibility under this warranty if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a Macromedia-recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE.

9. Intellectual Property Indemnity.

Macromedia will defend at its expense and indemnify and hold harmless Customer from any third party action brought against Customer based on a claim that the Macromedia software or any part thereof, when used within the scope of this Agreement, infringes or misappropriates a third party's United States copyright, trademark, or trade secret, and Macromedia will pay any settlements and damages awarded to such third party and the reasonable out-of-pocket costs incurred directly by Customer in connection with defending such claim; provided, the foregoing obligation shall be subject to Customer notifying Macromedia promptly in writing of any claim, giving Macromedia the exclusive control of the defense and settlement thereof, and providing all reasonable assistance in connection therewith.

Macromedia shall have no liability for any claim arising out of or relating to (i) modifications to the Macromedia software other than modifications made by Macromedia, (ii) any combination of Macromedia software with non-Macromedia equipment, systems, programs or data, where such Macromedia software alone would not have given rise to the claim, (iii) continued use of any Macromedia software for which Macromedia has provided Customer with modifications or substitute software if use of such modifications or substitute software would have prevented the claim.

In the event that the Macromedia software is, or in Macromedia's sole opinion is likely to be, subject to a claim of infringement or misappropriation, Macromedia at its option may either (i) modify the Macromedia software so that it becomes non-infringing, (ii) replace the Macromedia software with non-infringing software with substantially similar functionality, (iii) obtain a license with respect to the applicable third party intellectual property rights, or (iv) terminate this Agreement and refund to Customer an amount equal to the fees Customer has paid to Macromedia under this Agreement as of the date of termination for the software that was subject to the claim of infringement or misappropriation.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL MACROMEDIA, ITS AGENTS OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL OR THE LIKE), ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE TERMINATION THEREOF, OR OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE HOWEVER CAUSED AND BASED ON WHATEVER THEORY, WHETHER BASED ON, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), THE FAILURE OR ASSERTED FAILURE OF A PARTY TO PERFORM ITS OBLIGATIONS HEREUNDER, PRODUCT LIABILITY, STRICT LIABILITY, STATUTORY LIABILITYOR OTHERWISE, EVEN IF MACROMEDIA, ITS AGENTS, ITS SUPPLIERS OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

MACROMEDIA'S TOTAL AGGREGATE LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF $25,000 OR THE AMOUNTS PAID BY CUSTOMER TO MACROMEDIA UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE TIME WHEN MACROMEDIA'S LIABILITY IS ESTABLISHED.

The Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability set forth above are fundamental elements of the basis of the Agreement between Macromedia and Customer. Macromedia would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability inure to the benefit of Macromedia's licensors.

11. Government Requirements. Customer will comply with, and cause end users of the Software to comply with, all applicable export and import laws and regulations of the U.S. Department of Commerce or other U.S. or foreign agency or authority, and not export, import or allow the export or import of any Macromedia product in violation of any such laws or regulations. This Software and the documentation are provided with "RESTRICTED RIGHTS” applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Macromedia, Inc., 601 Townsend, San Francisco , CA 94103 .

12. Audits. Customer agrees to keep all usual and proper records and books of account and all usual and proper entries relating to the Software. Records and books of account include, but are not limited to, information regarding the number of Software units manufactured or distributed. Macromedia may cause an audit and/or inspection to be made of the applicable records and facilities in order to verify compliance with the terms of this Agreement. Any such audit shall be conducted by an auditor selected by Macromedia. Any audit and/or inspection shall be conducted during regular business hours at Customer's facilities with advance notice of at least 10 days. Customer agrees to provide Macromedia's designated audit or inspection team access to the relevant Customer records and facilities and prompt and reasonable cooperation in the audit. Customer shall pay Macromedia the full amount of any underpayment revealed by the audit plus interest from the date such payments were due under the terms of this Section. Notwithstanding the foregoing, if such audit reveals an underpayment by Customer of more than five percent (5%) for the period covered by the audit report, Customer shall pay all of the fees and costs associated with such audit and the amount underpaid with interest from the date such payment was due pursuant to this Section. This provision does not limit any additional rights and remedies at law or in equity that Macromedia may have due to unauthorized use of the Software.

13. Third Party Software. The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://www.macromedia.com/go/thirdparty/ and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.

14. Applicable Law; Choice of Forum. This Agreement shall be governed by and construed under the laws of the State of California (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to conflict of laws principles. Unless waived by Macromedia in writing for the particular instance (which Macromedia may do at its option), the exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in San Francisco County, California, United States of America. Both parties consent to the personal jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by law.

15. General. Customer may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Macromedia, with such consent not to be unreasonably withheld. Any attempted assignment without Macromedia's prior written consent shall be null and void. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any term or breach of this Agreement shall constitute a waiver of any other term or any prior, concurrent, or subsequent breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. A party's failure to enforce a term of this Agreement shall not be deemed a waiver of that term or any other term of this Agreement. This Agreement shall constitute the entire agreement between the parties with respect to its subject matter and hereby merges all prior and contemporaneous communications with respect to its subject matter, both written and oral. This Agreement shall not be modified except by a written agreement signed on behalf of the parties by their respective duly authorized representatives. All notices required under this Agreement shall be directed to: Macromedia, Inc., 601 Townsend, San Francisco , CA 94103 , Attention: General Counsel.