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End User License Agreement

ADOBE'S MACROMEDIA FLASH MEDIA SERVER

End User License Agreement

NOTICE TO USER:  THIS END USER LICENSE AGREEMENT (“AGREEMENT”) GOVERNS INSTALLATION AND USE BY LICENSEES OF THE ADOBE SOFTWARE DESCRIBED HEREIN.  INSTALLATION AND USE OF THE SOFTWARE IS SUBJECT TO A SEPARATE WRITING DETAILING THE LICENSE METRICS APPLICABLE TO LICENSEE.  LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE.  BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND DURING REVIEW OF AN ELECTRONIC VERSION OF THIS LICENSE, OR DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT INSTALLS AND USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT INSTALLS OR USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.

THIS agreement SHALL APPLY ONLY TO THE SOFTWARE to which Licensee has obtained a valid license (E.G., adobe FLASH MEDIA SERVER) REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.

LICENSEE’S RIGHTS UNDER THIS AGREEMENT MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS IN A SEPARATE WRITTEN AGREEMENT WITH ADOBE THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.

  1. Definitions
    1. “Adobe” means Adobe Systems Incorporated, a Delaware corporation, 345 Park Avenue, San Jose, California 95110, if subsection 9(a) of this Agreement applies; otherwise it means Adobe Systems Software Ireland Limited, Unit 3100, Lake Drive, City West Campus, Saggart D24, Dublin, Republic of Ireland, a company organized under the laws of Ireland and an affiliate and licensee of Adobe Systems Incorporated.
    2. “Authorized Users” means employees and individual contractors (i.e., temporary employees) of Licensee that (a) develop and/or build applications using the Software; and/or (b) use the Software to deliver Content to end users.
    3. “Cold Failover Version” means a version of the Software that is installed on a Computer within the Disaster Recovery Environment, but is not running until there is an interruption in the operation of the full commercial production version of the Software due to an event beyond Licensee’s control that creates an inability on Licensee’s part to provide critical business functions for a material period of time. 
    4. “Computer” means one or more central processing units (“CPU”) in a hardware device (including hardware devices accessed by multiple users through a network that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
    5. “Connections” means the number of connections over which the client can (a) make multiple simultaneous requests for Content from a single Computer where the Software is installed and (b) maintain a bidirectional communication channel with such Computer; provided, however there may be multiple connections between one client and a single Computer.  
    6. “Concurrent Connections” means the total number of simultaneous Connections from software clients to a specific Computer.
    7. “Content” means the output of the Software that is accessible by end users. 
    8. “Developer Edition” means a particular configuration and license of the Software with (a) unlimited bandwidth; and (b) a limited number of Concurrent Connections. 
    9. “Disaster Recovery Environment” means Licensee’s technical environment designed solely to allow Licensee to respond to an interruption in service due to an event beyond Licensee’s control that creates an inability on Licensee’s part to provide critical business functions for a material period of time. 
    10. “Documentation” means the user manuals and/or technical publications as applicable, supplied with the Software, relating to the installation, use and administration of the Software.
    11. “Edge Edition” means a particular configuration and license of the Software that works in conjunction with an Origin Edition. 
    12. “Hot Failover Version” means a version of the Software that is installed and running on a Computer within the Disaster Recovery Environment, but is not accepting any Connections until there is an interruption in the operation of the full commercial production version of the Software due to an event beyond Licensee’s control that creates an inability on Licensee’s part to provide critical business functions for a material period of time. 
    13. “License Metrics” means each of the per-unit metrics specified by Adobe in connection with the licensed quantities identified in a separate writing to describe the scope of Licensee’s right to use the Software.  The License Metrics are incorporated by reference into this Agreement.
    14. “Not For Resale Software” means Software that is used by Licensee solely for demonstrating or training persons about the features and functionality of the Software and not for any production purposes. 
    15. “Origin Edition” means a particular configuration and license of the Software that (a) stores the applications, Content, usage reports and/or logs generated by Licensee; (b) manages application logic; (c) delivers audio, video and/or data to either end users and/or to one or more Edge Editions; and (d) may perform other functions in order to facilitate interaction between the Origin Edition and Edge Edition; provided, however the Origin Edition may be used on a standalone basis. 
    16. “Professional Edition” means Software licensed in accordance with the selected Professional Edition License Profile. 
    17. “Professional Edition License Profile” means the license profiles created by Adobe and made available to Licensee via a License Key (as defined in Section 5) that is provided with the Professional Edition, which state the number of permitted Concurrent Connections, bandwidth and Vhosts. 
    18. “Sample Code” means sample software and sample applications in source code format made available through Adobe’s website and/or provided with the Software. 
    19. “Software” means the object code version of the validly licensed software program(s), including but not limited to the Developer Edition, Professional Edition, Origin Edition and Origin/Edge Edition, as applicable, provided by Adobe to Licensee under this Agreement and as may be further specified by the applicable License Metrics.

1.20.       “Trial Version” means a version of the Software that may have limited features, will automatically cease operating after a predetermined period of time, or have other limitations not present in a non-Trial Version of the Software, as identified in the License Metrics.

  1. License and Restrictions.
    1. Software License.  Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a perpetual (except as set forth in Section 15) non-exclusive license to install the Software on one (1) Computer and use the Software delivered hereunder according to the terms and conditions of this Agreement and the applicable License Metrics and in the manner and for the purposes described in the Documentation.  Unless indicated otherwise by the License Metrics and the License Key provided to Licensee, Licensee shall be deemed to have licensed the Developer Edition. If Licensee has licensed a Trial Version, in which case Section 2.2 applies, or if Licensee has licensed Not For Resale Software, in which case Section 2.3 applies. 
      1. Developer Edition License.  This Section 2.1.1 applies only if Licensee has obtained a valid Developer Edition license to the Software.  In addition to the other terms contained herein, (a) Licensee’s license to the Developer Edition Software is limited to amaximum number of ten (10) Concurrent Connections; and (b) Licensee shall not (1) install, use or access the Developer Edition Software on more than one CPU; (2) cluster any CPUs; and/or (3) use load balancing. 
      2. Professional Edition License.  This Section 2.1.2 applies only if Licensee has obtained a valid Adobe Professional Edition license. Adobe grants Licensee a license to install and use the Software in accordance with the Professional Edition License Profile selected by Licensee.  Licensee may purchase additional Professional Edition License Profiles to be placed on the same Computer; provided, however the Professional Edition License Profile is the same as the original Professional Edition License Profile.
      3. Origin Edition License.  This Section 2.1.3 applies only if Licensee has obtained a valid Origin Edition license.  In addition to the other terms contained herein, Licensee’s license to the Origin Edition is limited to five thousand (5000) Concurrent Connections. 
      4. Edge Edition License.  This Section 2.1.4 applies only if Licensee has obtained a valid Edge Edition license.  In addition to the other terms contained herein, Licensee may only use the Edge Edition in conjunction with an Origin Edition.  Notwithstanding the foregoing, Licensee may have multiple Edge Editions working in conjunction with a single Origin Edition.
    2. Trial License.  Notwithstanding anything to the contrary in this Agreement, if Licensee has obtained a valid license to the Trial Version, then this Section 2.2 shall apply.
      1. License.  Subject to the terms and conditions of this Agreement and any relevant License Metrics, Adobe grants to Licensee a non-exclusive license to (a) install the Trial Version on one (1) Computer; and (b) permit Authorized Users to use the Trial Version solely to evaluate the Trial Version for Licensee’s own internal evaluation and review purposes.  Licensee’s rights with respect to the Trial Version are further limited as set forth in Section 2.2.2.
      2. Limitations.  Licensee shall not (a) use the Trial Version and Documentation for revenue generating or commercial activities; (b) use the Trial Version to host third party applications or content; (c) permit any person who is not an Authorized User to access and use the Trial Version and Documentation; (d) alter the contents of a hard drive or Computer to enable the use of the Trial Version for an aggregate period in excess of the period of time set forth in the License Metrics for which Licensee may evaluate a Trial Version (“Trial Period”); and (e) use the Trial Version for a purpose other than the sole purpose of determining whether to purchase a license to the Software.  If no License Metrics are provided with a Trial Version or the License Metrics do not state the length of the Trial Period, the Trial Period shall be sixty (60) days.
      3. Licensee acknowledges that as a Trial Version, the Trial Version might place watermarks on output, contain limited functionality, or cease operations after a designated period of time unless extended by Adobe upon Licensee’s acquisition of a full commercial license.  Licensee’s rights to install and use the Trial Version under this Section 2.2 will terminate immediately upon the earlier of (a) the expiration of the Trial Period; or (b) such time that Licensee purchases a license to a non-evaluation version of such Trial Version.  Adobe reserves the right to terminate Licensee’s license to evaluate the Trial Version at any time in its sole discretion.  Licensee agrees to return or destroy Licensee’s copy of the Trial Version upon termination of this Agreement for any reason.  Licensee shall not be entitled to any updates, upgrades for the Trial Version; provided, however Licensee may install and use any free publicly available hot fixes and maintenance releases.  To the extent that any provision in this Section 2.2 is in conflict with any other term or condition in this Agreement, this Section 2.2 shall supersede such other term(s) and condition(s) with respect to the evaluation of the Trial Version, but only to the extent necessary to resolve the conflict.  LICENSEE ACKNOWLEDGES THAT THE TRIAL VERSION MAY (i) HAVE LIMITED FEATURES, (ii) FUNCTION FOR A LIMITED PERIOD OF TIME, OR (iii) HAVE OTHER LIMITATIONS NOT PRESENT IN A NON-TRIAL VERSION OF THE SOFTWARE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TRIAL VERSION IS PROVIDED TO LICENSEE BY ADOBE ON AN “AS IS” BASIS, AND ADOBE DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO LICENSEE OF ANY KIND. 
    3. Not For Resale Software.  Notwithstanding anything to the contrary in this Agreement, if Licensee has obtained a valid license to Not For Resale Software this Section 2.3 shall apply to such Not For Resale Software.
      1. License.  Subject to the terms and conditions of this Agreement and any relevant License Metrics, Adobe grants to Licensee a non-exclusive license to (a) install the Software on Computers; and (b) use the Software solely to demonstrate and conduct training sessions regarding the features and functionality of the Not For Resale Software to third parties. Licensee’s rights with respect to the Not For Resale Software are further limited as set forth in Section 2.3.2.
      2. Limitations.  Adobe reserves the right to terminate Licensee’s license to the Not For Resale Software at any time in its sole discretion.  Licensee agrees to return or destroy Licensee’s copy of the Not For Resale Software upon termination of this Agreement for any reason.  Licensee shall not be entitled to any upgrades for the Not For Resale Software; provided, however Licensee may install and use any free and publicly available hot fixes and maintenance releases.  To the extent that any provision in this Section 2.3 is in conflict with any other term or condition in this Agreement, this Section 2.3 shall supersede such other term(s) and condition(s) with respect to the use of the Software, but only to the extent necessary to resolve the conflict. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE NOT FOR RESALE SOFTWARE IS PROVIDED TO LICENSEE BY ADOBE ON AN “AS IS” BASIS.  SEE SECTIONS 7 AND 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN NOT FOR RESALE SOFTWARE.
    4. Sample Code.  Licensee may modify the Sample Code solely for the purposes of designing, developing, recording and saving files and testing Licensee’s own software applications.  However, Licensee is permitted to use, copy and redistribute its modified Sample Code only if all of the following conditions are met: (a) Licensee includes Adobe's copyright notice (if any) with Licensee’s application, including every location in which any other copyright notice appears in such application; and (b) Licensee does not otherwise use Adobe's name, logos or other Adobe trademarks to market Licensee’s application.  Licensee agrees to defend, indemnify, and hold Adobe and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution of Licensee’s applications, provided that Adobe gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim. 
    5. Backup and Disaster Recovery.   Licensee may make a reasonable number of backup copies of the Software, provided that the backup copies are not installed or used for other than archival purposes.  If Licensee has paid the applicable fees for the Cold Failover Version and/or the Hot Failover Version, Licensee may also installcopies of the Cold Failover Version and/or Hot Failover Version in a Disaster Recovery Environment for use solely in disaster recovery and not for production, development, evaluation or testing purposes other than to ensure that the Software is capable of replacing the primary usage of the Software in case of a disaster. 
    6. Documentation.  Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a non-exclusive license to make copies of the Documentation for use by Authorized Users in connection with its use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary.  Any permitted copy of the Documentation that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.
    7. Outsourcing.  Licensee may sub-license use of the Software to a third party outsourcing or facilities management contractor to operate the Software on Licensee’s behalf, provided that (a) Licensee provides Adobe with prior written notice; (b) Licensee is responsible for ensuring that any such contractor agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Licensee; (c) such use is only in relation to Licensee’s direct beneficial business purposes as restricted herein; (d) such use does not represent or constitute an increase in the scope or number of licenses provided hereunder; and (e) Licensee shall remain fully liable for any and all acts or omissions by the contractor related to this Agreement.
    8. Restrictions.
      1. No Modifications.  No Reverse Engineering. Licensee shall not modify, port, adapt or translate the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.  Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Licensee’s jurisdiction give Licensee the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Licensee must first request such information from Adobe and Adobe may, in its discretion, either provide such information to Licensee or impose reasonable conditions, including a reasonable fee, on such use of the source code to ensure that Adobe’s and its suppliers’ proprietary rights in the source code for the Software are protected.
      2. No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Licensee as a single product to be used as a single product on Computers and platforms as permitted herein. Licensee is not required to use all component parts of the Software, but Licensee shall not unbundle the component parts of the Software for use on different Computers. Licensee shall not unbundle or repackage the Software for distribution, transfer or other disposition.
      3. No Transfer.  Except as may be explicitly provided in this Agreement, Licensee shall not (a) sublicense, assign or transfer the Software to any third party nor shall Licensee sublicense, assign or transfer Licensee’s rights in the Software; or (b) authorize any portion of the Software to be copied onto or accessed from another individual’s or entity’s Computer.
      4. Prohibited Use.  Except as expressly authorized under this Agreement, Licensee is prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; (c) providing use of the Software in a third party outsourcing facility or service, service bureau arrangement, or time sharing basis; (d) allowing any person who is not an Authorized User from using the Software; and (e) bundling or integrating the Software with other products and services. Notwithstanding the foregoing, Licensee may host the Professional Edition for the benefit of third parties subject to the terms and conditions of this Agreement and the License Metrics.
      5. License Limit.  Licensee shall only use the Software corresponding to the licenses and the License Profile (if applicable) for the Software that Licensee has purchased.  Licensee is permitted to install the Software on a single Computer containing up to 2 CPUs; provided, however if Licensee has more than 2 CPUs in the single Computer where the Software is installed, Licensee must purchase another license to the Software, and such additional license shall permit up to two (2) additional CPUs in such Computer. 
      6. Export Rules. Licensee agrees that the Software 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 Software is identified as an export controlled item under the Export Laws, Licensee represents and warrants that Licensee is not a citizen of, or located within, an embargoed or otherwise restricted nation (including Iran, Iraq, Syria, Sudan, Libya, Cuba and North Korea) and that Licensee is not otherwise prohibited under the Export Laws from receiving the Software. All rights to install and use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement. 
    9. Delivery.  The Software may be delivered via electronic delivery or via a CD and if applicable, the Software may be supplied with a valid serial number and/or License Key (as defined below).
    10. Intellectual Property Rights. The Software, Documentation and any copies that Licensee is authorized by Adobe to make thereof are the intellectual property of and are owned by Adobe and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Adobe and its suppliers. The Software and Documentation are protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used.  Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and Documentation and all rights not expressly granted are reserved by Adobe.
    11. Confidentiality.  Any license key, activation code, or similar installation, access or usage control codes (“License Key”) provided by Adobe to Licensee is considered the confidential information of Adobe, and Licensee must hold such License Key in strict confidence.  If Licensee is an entity, Licensee may provide License Key access to Authorized Users solely in accordance with the License Metrics.  Notwithstanding the foregoing, if Licensee is permitted to sublicense the use of the Software in accordance with Section 2.7, then Licensee may disclose the License Key to the permitted third party outsourcing or facilities management contractor.
    12. Updates. If the Software is an upgrade or update to a previous version of the Software, Licensee must possess a valid license to such previous version in order to use such upgrade or update. All upgrades and updates are provided to Licensee subject to the terms of this Agreement on a license exchange basis. Licensee agrees that by using an upgrade or update Licensee voluntarily terminates Licensee’s right to use any previous version of the Software. As an exception, Licensee may continue to use previous versions of the Software on Licensee’s Computers after Licensee obtains the upgrade or update but only for a reasonable period of time to assist Licensee in the transition to the upgrade or update, and further provided that such simultaneous use shall not be deemed to increase the number of copies, licensed amounts or scope of use granted to Licensee hereunder. Upgrades and updates may be licensed to Licensee by Adobe with additional or different terms. 
    13. WARRANTY
      1. Warranty.  Adobe warrants to Licensee that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following shipment of the Software when used on the recommended operating system, platform and hardware configuration as specified in the Documentation. This limited warranty does not apply to Trial Versions, Not For Resale Software, updates, upgrades patches and Sample Code.  All warranty claims must be made within such ninety (90) day period.  If the Software does not perform as warranted above, the entire liability of Adobe and Licensee’s exclusive remedy shall be limited to either, at Adobe’s option, the replacement of the Software or the refund of the license fee paid to Adobe for the Software whereupon the license to such software shall automatically terminate.
      2. DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY ADOBE AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ADOBE’S, ITS AFFILIATES’ OR ITS SUPPLIERS’ BREACH OF WARRANTY.  EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE IN LICENSEE’S JURISDICTION, ADOBE, ITS AFFILIATES AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
    14. LIMITATION OF LIABILITY. EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO EVENT WILL ADOBE, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS.  THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S JURISDICTION.  ADOBE’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY.  THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT.  Nothing contained in this Agreement limits Adobe’s liability to Licensee in the event of death or personal injury resulting from Adobe’s negligence or for the tort of deceit (fraud). Adobe is acting on behalf of its affiliates and suppliers for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact Adobe’s Customer Support Department
    15. Governing Law. This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is purchased when Licensee is in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is purchased when Licensee is in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) England, if a license to the Software is purchased when Licensee is in any other jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, 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.
    16. 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.  The English version of this Agreement shall be the version used when interpreting or construing this Agreement.  This is the entire agreement between Adobe and Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
    17. Notice to U.S. Government End Users.
      1. Commercial Items.  The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Adobe Systems Incorporated, 345 Park Avenue, San Jose, CA 95110-2704, USA.
      2. U.S. Government Licensing of Adobe Technology. Licensee agrees that when licensing Adobe Software for acquisition by the U.S. Government, or any contractor therefore, Licensee will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, Adobe agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741.  The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
      3. Compliance with Licenses.  Adobe may, at its expense, and no more than once every twelve (12) months, appoint its own personnel or an independent third party to verify the number of copies and installations as well as usage of the Adobe software in use by Licensee.  Any such verification shall be conducted upon seven (7) business days notice, during regular business hours at Licensee’s offices and shall not unreasonably interfere with Licensee’s business activities.  Both Adobe and its auditors shall execute a commercially reasonable non-disclosure agreement with Licensee before proceeding with the verification.  If such verification shows that Licensee is using a greater number of copies of the Software than that legitimately licensed exceeding the License Metrics, or are deploying or using the Software in any way not permitted under this Agreement and which would require additional license fees, Licensee shall pay the applicable fees for such additional copies within thirty (30) days of invoice date, with such underpaid fees being the license fees as per Adobe’s then-current, country specific, license fee list.  If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement or the fees specified in the applicable License Metrics, then Licensee shall pay such underpaid fees and Adobe’s reasonable costs of conducting the verification.
      4. Third-Party Beneficiary.  Licensee acknowledges and agrees that Adobe’s licensors (and/or Adobe if Licensee obtained the Software from any party other than Adobe) are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or Adobe.
    18. Specific Provisions and Exceptions. This Section 12 sets forth specific provisions related to certain components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this Section 12 is in conflict with any other term or condition in this agreement, this Section 12 will supersede such other term or condition.
      1. Limited Warranty for Users Residing in Germany or Austria. If Licensee obtained the Software directly from Adobe in Germany and Austria, then Section 7 does not apply.  Instead, Adobe warrants that the Software substantially provides the functionalities set forth in the Documentation and will at its own discretion correct defects of the Software by repair or replacement within a warranty period of one (1) year following receipt of the Software if Licensee is a business users or two (2) years if Licensee is a private consumer.  If Adobe fails to correct a defect, Licensee is entitled to reduce the purchase price or cancel the Agreement.  This warranty does not apply to Software provided to Licensee free of charge. 
      2. Limitation of Liability for Users Residing in Germany and Austria.  If Licensee obtained the Software directly from Adobe in Germany and Austria, then Section 8 does not apply.  Instead, Adobe is fully liable for guaranteed qualities, for physical or personal injury as well as for intent and gross negligence.  In cases of slightly negligent breaches of material contractual obligations, Adobe is liable only for typically foreseeable damages.  Liability under the German Product Liability Act remains unaffected.  Any other liability for damages or reimbursement of expenses is excluded.
    19. Educational Software Product.  If the Software accompanying this agreement is Educational Software Product (Software manufactured and distributed for use by only Educational End Users), Licensee is not entitled to use the Software unless Licensee qualifies in its jurisdiction as an Educational End User.  Please visit http://www.adobe.com/education/purchasing to learn if Licensee qualifies.  To find an Adobe Authorized Academic Reseller in Licensee’s area, please visit http://www.adobe.com/store and look for the link for Buying Adobe Products Worldwide.
    20. 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.adobe.com/products/eula/third_party/breeze/index.html (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.
    21. Term and Termination.  This Agreement shall remain in effect until any material breach of this Agreement by Licensee occurs, upon which this Agreement shall automatically terminate.  Upon termination of this Agreement for any reason, Licensee shall discontinue use of the Software and shall destroy the Software, Documentation and all copies thereto.  Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive termination of this Agreement:  1 (Definitions), 2.2 (Sample Code), 5 (Confidentiality), 7.2 (Disclaimer), 8 (Limitation of Liability), 9 (Governing Law), 10 (General Provisions), 11 (Notice to U.S. Government End Users), and 15(Term and Termination).

    If Licensee has any questions regarding this Agreement or if Licensee wishes to request any information from Adobe please use the address and contact information included with this product to contact the Adobe office serving Licensee’s jurisdiction.
    Adobe, Macromedia and Flash Media Server are either registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries.

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