By accepting these terms, you understand and agree that the use of this Service is subject to certain reporting obligations and royalty payments. For more information, please see Section 5 of these Additional Terms and Exhibit A.
Last updated on August 10, 2012.
If the person using the Services is doing so on behalf of a company, "You" or "Publisher" 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 these Additional Terms.
By selecting 'Accept' below, you agree to the terms and conditions contained herein, and to the General Terms incorporated herein by reference, and You state that You have all legal rights and powers needed to give the statements, assurances and commitments in this document, and to agree to it as a validly executed, legal instrument. It shall be binding on you and on Your heirs, executors and assigns. In order to use the Services, you will need to agree to these Additional Terms.
Adobe is not responsible for performance or any other issues that arise due to filtering or blocking technologies implemented by governments attempting to control internet traffic within their borders.
2. Definitions. As used in these Additional Terms:
"Adobe Software Tool" means any software licensed by Adobe used in the creation of your product or service. For the avoidance of doubt, Adobe Software Tools shall be governed each by their own individual end user license agreement included with each Adobe Software Tool.
"Adobe Premium Features for Flash Player" means those Adobe premium features as set forth in Exhibit B and licensed by Adobe, which Publishers or other entities may utilize to publish games and other content in a format that is run in Adobe Flash Player.
"Adobe Premium Features for Flash Player Registration Site" or "Registration Site" means the Adobe website where Publishers are required to register and manage their account in order to enable their Publisher Offering (defined below) to utilize the Adobe Premium Features for Flash Player.
"Intellectual Property Rights" means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
"Net Revenue" means the total revenue of the Publisher Offering minus the applicable taxes, payment processing fees, and social network platform fees. Net Revenue may consist of, but is not limited to, Publisher Offering sales or licensing, "in-app" purchases (i.e., in Publisher Offering purchases), subscription fees, sponsorship and advertising fees received for advertising in, or derived from the Publisher Offering.
"Publisher" means that individual or entity which provides a service, application, game or other works of authorship.
"Publisher Offering" means that service, application, game or other work of authorship available to end users on either a trial or commercial basis, which utilizes the Adobe Premium Features for Flash Player. For the avoidance doubt, a Publisher Offering shall include all expansions or ports of the content related to that Publisher Offering so long as such expansions or ports do not require an end user to install, register, opt into or otherwise accept any such expansion or port and are not standalone sequels or extensions of the Publisher Offering in question.
"Publisher Offering Location" means the website used by the Publisher to make the Publisher Offering(s) available to end-users. This includes the location, identified by the URL, of the page where the Publisher Offering(s) appears and the location of the SWF files that comprise the Publisher Offering(s).
3. Publisher’s Acknowledgements.
3.1 Competitive Products.Publisher understands and agrees that the General Terms and Additional Terms shall not be construed as prohibiting Adobe from acquiring, licensing, developing for itself (or having others develop for it), marketing, publishing and/or distributing products that are similar or competitive to your products or Publisher Offering. In the absence of a separate written agreement to the contrary, Adobe will be free to use any information you provide to Adobe for any purpose, subject to your applicable patents and/or copyrights.
3.2 Requirement. Adobe reserves the right, but shall have no obligation, to make changes and updates to the Services, including but not limited to, changes and updates to the associated runtime and APIs. Publisher understands and agrees that Publisher may be required to update the Publisher Offering as necessary to utilize any updated APIs and the Services.
3.3 Restrictions. Publisher understands and agrees that it may not compile a version of any Publisher Offering that renders to the SWF file format to execute in Adobe Flash Player runtimes and use that Publisher Offering to make available, advertise, embed or promote to end users any offering or other content that invokes any other player or viewer other than Adobe Flash Player or is based on any format or standard other than SWF.
3.4 Revocation of Access. Publisher acknowledges that Adobe, in its sole discretion and at any time without notice, reserves the right to revoke your access to and use of the Services, for any reason, including but not limited to nonpayment or an allegation that your Publisher Offering is infringing or illegal.
4.1 Adobe. Adobe and its respective suppliers and licensors shall retain all right, title and interest in and to the Services and all portions thereof, including, without limitation, all Intellectual Property Rights thereto. Other than the license expressly granted to the Services in the General Terms and these Additional Terms, Publisher receives no right, title or interest in or to any of the Services.
4.2 Publisher. Publisher retains all right, title and interest in and to the Publisher Offering, (except for any portion of the Adobe Premium Feature(s), any Adobe Intellectual Property Rights, or any third party software incorporated or embodied therein), including all Intellectual Property Rights related thereto.
5. Fees; Royalties; Reporting.
5.1 Fees and Royalties. During the Term, Publisher shall be responsible for the payment of those fees set forth in Exhibit A (if any) and the accrued Royalties, as defined in Exhibit A (“Royalty Payments”). Publisher is responsible for obtaining and maintaining any equipment or ancillary services needed to utilize the Services and for all applicable taxes and fees incurred in connection with Publisher’s use of the Services. For the avoidance of doubt, in the event that more than one (1) Publisher Offering is available from a single Publisher Offering Location, those Publisher Offerings shall be considered a single Publisher Offering for the purposes of determining total revenue, Net Revenue and the Royalty Payment.
5.2 Revenue Reporting. Publishers are required to report revenues as set forth in Exhibit A.
5.3 Payment Terms. Royalty Payments are due thirty (30) days from date of invoice.
5.4 Late Payments. Payments which are received by Adobe thirty (30) days past the due date shall be subject to a late charge equal to 1.5 percent (1.5%) per month on the overdue balance or the maximum amount allowed by applicable law (whichever is lower). Publisher is responsible for any reasonable costs resulting from Adobe’s collection any such amounts, including, without limitation, reasonable attorneys’ fees and court costs.
5.5 Audit Rights. During the term of your use of the Services and for a period of no less than five (5) years after the termination or expiration thereof, Publisher shall maintain complete, clear, accurate records of the underlying data supporting the Net Revenues and the Royalty Payments. Adobe shall have the right to conduct an inspection and audit of Publisher’s relevant books and records to verify Publisher’s calculation of such Net Revenues and Royalty Payments. If such inspections should disclose any under-payment, Publisher shall promptly pay Adobe such under-payment amount plus interest thereon at the rate of 1.5 percent (1.5%) per month or the highest interest rate allowed by law, whichever is lower, from the date on which such amount was paid. Publisher shall cooperate in any audit of such records that Adobe may undertake; provided, however, that each party shall bear its own costs with respect to any such audit, unless a discrepancy of more than five percent (5%) is uncovered, in which case Publisher shall reimburse Adobe all reasonable costs associated with the audit.
6. Publisher Warranty.
In addition to your other representations and warranties set forth in the General Terms and these Additional Terms, You represent and warrant that: (a) the Publisher Offering which is associated with the provided Publisher Offering Location does not violate any law, statute, regulation, or rights (including without limitation, any laws, regulations or rights respecting intellectual property, computer spyware, privacy, export control, unfair competition, antidiscrimination, or advertising), (b) Publisher is the rightful owner of the Publisher Offering Location and the Publisher Offering or, if Publisher is not the rightful owner of the Publisher Offering Location and the Publisher Offering, that Publisher has the appropriate rights, licenses and permissions necessary to register the Publisher Offering Location to the Adobe Premium Features for Flash Player Registration Site and administer the associated Publisher Offering, (c) when used in the manner in which it is intended, the Publisher Offering Location and the Publisher Offering do not violate any law, statute, regulation, or rights (including without limitation, any laws, regulations or rights respecting intellectual property, computer spyware, privacy, export control, unfair competition, antidiscrimination, or advertising), (d) the Publisher or the Publisher Offering will not interfere with the operability of Adobe or third-party software or systems and (e) Publisher shall not attempt to conceal or misrepresent its identity or the identity of the Publisher Offering when requesting authorization from Adobe to use the Services.
Publisher shall, at its 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 these Additional Terms (or the General Terms) by Publisher, (b) any allegation that any Publisher Offering Location or Publisher Offering or any portion or combination thereof infringes any third party Intellectual Property Rights, (c) any breach or alleged breach of any representations and warranties made by Publisher concerning any aspect of the Publisher Offering Location or the Publisher Offering (d) any claims made by or on behalf of any third party pertaining directly or indirectly to Publisher’s use of the Services, (e) any alleged or actual violation of Publisher’s obligations of privacy to any third party, (f) any end user allegation related to the Publisher Offering including but not limited to any allegations based on a product liability claim, (g) any allegation related to Publisher’s distribution of the Publisher’s Offering and (h) any allegation related to Publisher’s agreement or relationship with a technology provider, licensor or end user.
8. Term; Termination.
8.1 Termination by Adobe. Adobe may terminate these Additional Terms immediately for any reason in its sole discretion.
8.2 Effects of Termination. Upon termination or expiration of the Additional Terms for any reason, Publisher shall immediately cease all use of the Services and a Revenue Report (in accordance with Exhibit A) shall be due immediately. Adobe reserves the right to disable usage of the Services upon termination or expiration of the Additional Terms.
Adobe Premium Features for Gaming Royalties
A Publisher Offering shall be subject to a "Royalty" of nine (9%) percent of the Net Revenue once the Net Revenue of that Publisher Offering exceeds fifty-thousand ($50,000.00 USD) dollars.
Revenue Reporting Commitments
The "First Reporting Period" begins August 15, 2012 and shall end on December 31, 2012, with the first Revenue Report (defined below) due to Adobe on January 1, 2013. Thereafter, a "Reporting Period" shall be six (6) months in duration. After the First Reporting Period, each Reporting Period thereafter will run for six-month periods of time, such that Revenue Reports shall be due January 1 and July 1 of every year. By way of an example, the next Reporting Period, after the First Reporting Period, shall run from January 1, 2013 and end on June 30, 2013.
At the end of each Reporting Period (or earlier in the case of the expiration or termination of the Additional Terms in accordance Section 8.2 of the Additional Terms). Publisher is required to log in to the Registration Site and submit a Revenue Report. “Revenue Report” shall mean a report of certain information about the Publisher Offering as required by Adobe via the Registration Site, including but not limited to, total revenue and Net Revenue of the Publisher Offering in the relevant Reporting Period. Upon submission of the Revenue Report, Adobe will provide Publisher with an invoice for the Royalty Payment due and instructions regarding how to remit such Royalty Payment to Adobe.
Adobe Premium Features for Gaming