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End User License Agreement

MACROMEDIA SOFTWARE END USER LICENSE AGREEMENT

IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU AND MACROMEDIA. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN SELECT THE "CANCEL" BUTTON, DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.

THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY MACROMEDIA HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.

1. Definitions

(a) “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.

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

(c) “CPU-Based Software” means, if applicable, a Software (including, but not limited to, Macromedia ColdFusion software for a J2EE server application and Macromedia Flash Remoting software) that is not a Server-Based Software.

(d) “Developer Version” means a version of the Software, so identified, to be used internally only and solely for the purposes of design, development and evaluation.

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

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

(g) "Macromedia" means Macromedia, Inc. and its licensors, if any.

(h) “Sample Application Code” shall have the meaning ascribed to it in Section 2(c) of this Agreement.

(i) “Server-Based Software” means, if applicable, either Macromedia ColdFusion Server software or Macromedia Flash Communication Server software.

(j) "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.

(k) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version 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 in this Section 2 are subject to the terms and conditions set forth in this EULA:

(a) If the Software is (i) a Developer Version, (ii) a Trial Version, or (iii) any version of a Server-Based Software, this Section 2(a), and not Section 2(b), shall apply: Subject to the terms and conditions of this Agreement, Macromedia hereby grants, and you accept, the right and license to install and use the Software on a single computer. A license for the Software may not be shared, installed nor used concurrently on different computers.

(b) If the Software is a (i) Commercial Version, (ii) Education Version or (iii) Not For Resale Version, in each case, of a CPU-Based Software, this Section 2(b), and not Section 2(a), shall apply: Subject to the terms and conditions of this Agreement, Macromedia hereby grants, and you accept, the right and license to install and use the Software on one or more computers, provided, however, that the total number of CPUs from all of the computers in which the Software is installed does not exceed the total number of CPU licenses purchased for such installation and use.

(c) For Sample Application Code, if any, only: You 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 your own software applications. However, you are permitted to use, copy and redistribute your modified sample code only if all of the following conditions are met: (A) you include Macromedia's copyright notice (if any) with your application, including every location in which any other copyright notice appears in your application; (B) you do not otherwise use Macromedia's name, logos or other Macromedia trademarks to market your application; (C) there is installed and running on each server in conjunction with which your application is running one or more duly licensed copies, as required, of the Commercial Version or, if applicable and subject to Section 3(f) hereof, Education Version; and (D) such modified sample code is designed to operate only in connection with the Software. You agree 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 your application.

(d) You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software.

(e) You agree that Macromedia may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Macromedia for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.

(f) Your license rights under this EULA are non-exclusive.

3. License Restrictions

Except to the extent contrary to applicable law:

(a) Other than as expressly set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.

(b) You may not alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.

(c) Unless otherwise provided herein, you may not rent, lease, or sublicense the Software.

(d) Other than with respect to a Trial Version, Developer Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer 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 you are 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. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version, Developer Version or Not For Resale Version of the Software.

(e) Other than as expressly set forth in Section 2(c) hereof, you may not modify the Software or create derivative works based upon the Software.

(f) Education Versions may not be used for, or distributed to any party for, any commercial purpose.

(g) Unless otherwise provided herein, you 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 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.

(h) You shall not (A) use the Developer Version for any application deployment in a live or stand-by production environment or staging environment, in each case, including, without limitation, in any environment accessed by application end-users including but not limited to servers, workstations, kiosks, and mobile computers , (B) use or deploy the Developer Version other than internally for the sole purpose of designing, developing, and evaluating applications pursuant to the terms and conditions set forth in this EULA, (C) access the Developer Version from more than a single IP address at any given time, (D) access the Developer Version from a computer other than the computer on which such Developer Version was installed, or (E) use the Developer Version to deploy applications that are accessed by multiple browsers or users.

(i) You shall not use the Software to develop any application having the same primary function as the Software.

(j) You may only use the Not for Resale Version of the Software to review and evaluate the Software.

(k) You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.

(l) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the computer on which the Software is to be installed.

(m) 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.

(n) If and only if the Software is a Macromedia ColdFusion Server software : You may not install the Software on a computer with more than eight (8) CPUs unless you purchase additional licenses to the same edition (i.e., “Professional Edition” or “Enterprise Edition”), if applicable, of the Software such that the aggregate number of such licenses you have purchased for such installation is equal to, or greater than, the quotient (rounded up to the nearest whole number) obtained by dividing by eight (8) the number of CPUs for such server in which the Software is installed.

(o) If and only if the Software is Macromedia ColdFusion Server software : You are prohibited from using Macromedia JRun application server included within the Software other than solely in connection with your use of the Software and solely in conformance with the documentations provided therewith.

(p) If and only if the Software is Macromedia Flash Communication Server software: You may use the Software to serve only such capacity corresponding to the license for the Software you have purchased.

(q) In the event that you fail to comply with this EULA, Macromedia may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).

4. Upgrades and Bundles

If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of the Software or transfer it to another person or entity unless such transfer is pursuant to Section 3(d). If this copy of the Software is licensed as part of the Bundle, and you have a prior license to the same version of the Software, and the Bundle was licensed to you with a discount based, in whole or in part, on your prior license to the same version of the Software, the Software is provided to you on a license exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior license to the Software and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity.

5. Ownership

The foregoing grants of rights give you limited license to use the Software. Except as expressly provided in this Agreement, Macromedia and its suppliers 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 you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Macromedia and its suppliers.

6. LIMITED WARRANTY AND DISCLAIMER

(a) Except with respect to the Sample Application Code and the Trial Version, the Developer Version and Not For Resale Version of the Software, Macromedia warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (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.

(b) MACROMEDIA PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE SAMPLE APPLICATION CODE OR THE TRIAL VERSION, THE DEVELOPER VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. THE SAMPLE APPLICATION CODE AND THE TRIAL VERSION, THE DEVELOPER VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED “AS IS”.

(c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN THE SAMPLE APPLICATION CODE AND THE TRIAL VERSION, THE DEVELOPER VERSION AND NOT FOR RESALE VERSION, MACROMEDIA AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. MACROMEDIA DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. MACROMEDIA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.

(d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.

(e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MACROMEDIA, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.

(f) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

7. Exclusive Remedy

Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to Macromedia no more than ninety (90) days following delivery to you, Macromedia will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. Macromedia shall have no responsibility 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 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 TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.

 

8. LIMITATION OF LIABILITY

(a) NEITHER MACROMEDIA NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU 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, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MACROMEDIA OR ITS 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.

(b) MACROMEDIA'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.

(c) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.

9. Basis of Bargain

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 you. 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.

10. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND

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., 600 Townsend, San Francisco, CA 94103.

11. (Outside of the USA) Consumer End Users Only

The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.

The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.

12. 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 EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.

13. General

This EULA shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in San Francisco County, California or the federal courts in the Northern District of California to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Macromedia to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

No Macromedia dealer, agent or employee is authorized to make any amendment to this EULA.

If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.

All questions concerning this EULA shall be directed to: Macromedia, Inc., 600 Townsend, San Francisco, CA 94103, Attention: General Counsel.

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. You 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 EULA does not authorize you to use Macromedia’s or its licensors’ names or any of their respective trademarks.