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Macromedia Player Licensing

Flash Player, Shockwave Player License and Distribution Agreement

This “Agreement” is entered into by and between Macromedia, Inc., a Delaware corporation with principal offices at 600 Townsend St., San Francisco, California 94103 ("Macromedia") and the entity identified in the Licensee Information section that must be completed in accepting this Agreement ("Licensee"), effective as of the date entered into by Macromedia ("Effective Date"). This Agreement consists of the following terms and the attached Exhibit A (General Provisions).

Definitions

  1. Intranet” means a secure internal web site or server system that is accessible only to Licensee’s employees, contractors, or other persons granted access to Licensee's internal networks in the furtherance of Licensee's normal course of business.
  2. "Licensee Product" or “Licensee Service” means Licensee product or service identified in the Licensee Information section that must be completed in accepting this Agreement that is enabled by Macromedia Software.
  3. Macromedia Software” or "Software" means the object code versions of the Macromedia Flash™ Player and/or the Macromedia Shockwave® Player and associated Xtras™ and any updates and upgrades thereto, released by Macromedia during the Term for desktop and standard-laptop versions of the following operating systems, collectively, the “Authorized Operating Systems”:

    1. Microsoft Windows operating systems (including desktop and standard-laptop PC versions of Windows 98, 2000, NT, ME, XP Home, and XP Professional, but specifically excluding Windows XP Embedded, Windows Tablet PCs, and Windows XP Media Center Edition, and successors,
    2. Macintosh operating systems,
    3. Linux operating systems, but specifically excluding any embedded version of Linux, and
    4. Solaris operating systems.

    For the avoidance of doubt, no embedded or device versions of the above operating systems, or any other operating systems, are included as Authorized Operating Systems.

  4. Updates” means updated, revised, or enhanced versions, or upgrades, if any, of the Macromedia Software that is generally made available to Licensees.
  5. Term” will mean the term of this Agreement which will be for one (1) year from the Effective Date unless terminated earlier pursuant to Exhibit A.

Software License

License

Pursuant to the terms and conditions of the Agreement and during the Term, Macromedia grants to Licensee a non-exclusive, non-transferable, worldwide license to use the Software internally, reproduce the Software and distribute the Software to end users, in all cases solely for use on the Authorized Operating Systems, by the following means:

  1. through an Intranet, for internal use only.
  2. bundled in physical media (such as floppies, CD-ROMs, hard disk, etc.) solely as part of, with or in conjunction, with Licensee Product; or
  3. through the Internet to end users, solely as a part of or with, with its Licensee Product (such as bundled in Licensee’s installer which, in turn, is downloaded from the Internet).

For distribution and reproduction pursuant to (ii) and (iii), distribution may occur indirectly through distributors or resellers and such distributors and resellers may reproduce the Software in connection with these distribution activities.

Restrictions

Licensee’s right to use the license in Section 2(a) above is limited by the following restrictions:

  1. Other versions of the Software found elsewhere, including on www.Macromedia.com, www.Shockwave.com, or any other download site on the Internet, cannot be distributed under this agreement.
  2. Licensee may not distribute, download, or embed the Software for use in (A) mobile devices, set top boxes (STB), handhelds, phones, web pads, tablets and Tablet PCs, game consoles, TVs, DVD players, media centers (including Windows XP Media Center Edition and its successors), internet appliances or other internet-connected devices, PDAs, medical devices, ATMs, telematic devices, gaming machines, home automation systems, kiosks, remote control devices, or any other consumer electronics device, (B) mobile, cable, satellite, television, or closed system operator-based service device, or (C) any operating system that is not an Authorized Operating System.
  3. Licensee may not make the Software available as stand-alone products from the Internet.
  4. Licensee must use the installers provided by Macromedia AS IS and may not modify or alter the way the files are installed without express written permission from Macromedia.
  5. Licensee may only redistribute the Software through a server, if such redistribution is via an Intranet, and for non-commercial use only. Licensee may not redistribute the Software from a server for use in an operator based commercial service. For example, Licensee may not install and operate the Software even on one of the operating systems specified in Section 1(c) if the Software is used on a server for commercial purposes or for any use.
  6. Licensee may not combine the Software with Licensee Product in such a way that the Licensee Product’s own file format or data type takes over the file format or data type for the Software. The Macromedia Flash Player and Shockwave Player must always remain the default players for their respective file formats and data types.
  7. Licensee will not decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form, modify or create derivative works based upon the Software.
  8. Licensee will comply, and cause its distributors and end-users 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.
  9. Licensee represents and warrants that its use of the Software will not directly or indirectly grant, or purport to grant, to any third party any rights or immunities under Macromedia’s intellectual property or proprietary rights in the Software or derivative work thereof, including but not limited to a requirement that, as a condition of use, modification and/or distribution, the Software (a) be disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge.
  10. Licensee will provide notice of and impose the restrictions in this Section, upon its distributors, resellers, licensees and end users including setting the restrictions forth in an end user license.

Ownership

Ownership of and title to the Software and all associated patents, copyrights, trade secrets and other proprietary rights remain with Macromedia. All rights not expressly granted herein are reserved by Macromedia.

Updates

From time to time, Macromedia will notify Licensee by email of Updates to the Macromedia Players. Licensee is required to download and distribute any Updates on Licensee’s Intranet or with Licensee’s Product as soon as practical upon notification from Macromedia. These updates will be made available via FTP.

Software Licensed

All licensees distributing exclusively on fixed media, including but not limited to CD-ROM, DVD, hard drives, are required to license and distribute the combined Shockwave and Flash Player installer if the Shockwave Player is available for the platform.

Copies of Products to Macromedia

At Macromedia’s request, Licensee will provide Macromedia two (2) copies of Licensee Product or one (1) membership to Licensee Service free of charge within seventy-two (72) hours of Macromedia’s request. This will facilitate resolving potential quality assurance issues with Licensee’s incorporation of Software. In the event Licensee Product contains Licensee confidential information, Macromedia will cooperate with entering into a confidentiality agreement with Licensee.

Consideration

Licensee will provide Macromedia the “relevant” marketing consideration as outlined in this Section during the Term. “Relevant” will mean the consideration that is applicable to the Licensee Product (for example, if Licensee Product does not have an About Box, then Section 8(b)(iii) is not “relevant”). Licensee agrees any breach of this Section will be deemed a material breach of the Agreement.

Licensee shall use the Trademarks and Macromedia Enabled Logos only as specified in the Macromedia Trademark Usage Guidelines located at http://www.macromedia.com/help/copyright.html, in the Macromedia Flash Enabled Logo Usage Guidelines located at http://www.macromedia.com/macromedia/style_guide/logos/flash_enabled and in the Macromedia Shockwave Enabled Logo Usage Guidelines located at http://www.macromedia.com/macromedia/style_guide/logos/shockwave_enabled, as may be amended from time to time in Macromedia’s sole discretion (collectively, the “Trademark & Logo Guidelines”). Upon notification from Macromedia, Licensee agrees to adopt the new logos and guidelines at their earliest convenience, for example, at the next revision of Licensee Product.

  1. If licensee licenses the Shockwave Player and Flash Player, then Licensee is required to display both logos.
  2. Copyright and Trademark Notice Placement.

    Licensee will place the copyright and trademark language and, whenever possible, their associated Player logo(s) in following areas of Licensee Product or Service:

    1. the on-line documentation,
    2. the End User License Agreement and/or Terms of Use Agreement,
    3. the ‘About Box’ or similar notice page, and
    4. Any other Licensee Product or Service document that contains copyright information.
  3. Installation and Start-up Attribution.

    Licensee will make the applicable Player logo(s) visible and readable during the installation and start-up screens of Licensee Product or Service.

  4. Web Site Promotion.

    1. Licensee shall prominently place the appropriate Player Enabled logo(s) and/or Player Enabled attribution text (or reasonable equivalent) in the top-level ‘features’ page on Licensee’s website in a manner consistent with the other marketing features of Licensee Product. Logos must link to the URLs provided in the attribution text.
    2. Licensee is only required to reference the Shockwave Player in its web marketing if Licensee has licensed the Macromedia Shockwave™ Player (which includes the Flash™ Player) and is not using the Flash technology features. Similarly, Licensee is only required to reference the Flash Player in its web marketing if Licensee is distributing the combined Shockwave and Flash Player installer on fixed-media and is not using the Shockwave Player features.

Technical Support

At Licensee's request and Macromedia's then current prices, Licensee may purchase a separate Player Distribution Support Contract (described at http://www.macromedia.com/support/), which may provide Licensee technical support in English by telephone and e-mail on installation, configuration, and general usage questions and strategies for deployment for the Software (including suggestions on how to best deploy the Software based on Licensee's environment and help understanding the descriptions and concepts described in the ‘Intranet and Physical Media Distribution Strategies’ found at http://www.macromedia.com/software/flash/open/licensing/distribution/ (collectively, "Technical Support").

Exhibit A: General Provisions

Macromedia Trademarks

During the Term, Licensee will have the right to indicate to the public that it is an authorized distributor of the Software and to advertise the Software under the trademarks on or associated with the Software (the "Trademarks"). Licensee will not, and will require that its distributors not, alter or remove any Trademark embedded within the Software, without the written permission of Macromedia. Nothing herein will grant to Licensee any right, title or interest in the Trademarks. At no time during or after the Term will Licensee challenge or assist others to challenge the Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to the Trademarks. Further, Licensee will not use the Trademarks with Licensee Product name or as part of any web site name.

Taxes

Licensee will pay any and all taxes, including applicable sales taxes, value-added taxes, excises or other charges levied or imposed with respect to the Licensee Product or Software. Macromedia will pay taxes imposed on its income.

Term and Termination

This Agreement will remain in effect for the Term hereto, unless terminated as set forth in this Section. Licensee may terminate this Agreement at any time upon thirty (30) days prior written notice to Macromedia. Macromedia may terminate this Agreement immediately if Licensee defaults in the performance of any material provision of this Agreement, Macromedia gives written notice to Licensee of such default, and Licensee fails to cure such default within thirty (30) days after Macromedia's notice. Upon the termination of this Agreement, the rights and licenses granted to Licensee pursuant to this Agreement will automatically cease, however Licensee will have a reasonable period of time to sell Licensee Product then in its inventory, Licensee's license to use the then-current version of the Software will continue to the extent necessary for Licensee to support its end users. If this Agreement is terminated for any reason, the provisions of Sections 4, 5, and 6 of this Exhibit will survive. In addition, if this agreement is terminated for any reason, the rights of end-users to use the Software distributed pursuant to the terms and conditions set forth in this Agreement prior to such termination shall survive pursuant to any end-user license agreements that comply with the restrictions set forth in this agreement.

Limited Macromedia Warranty and Limitation of Liability

Macromedia warrants that the media in which the Software is supplied is free of defects. Macromedia's sole obligation and Licensee's sole remedy is for Macromedia to provide a replacement copy of the Software. except as set forth in the foregoing limited warranty macromedia disclaims all other warranties, either express, implied or statutory, including warranties of merchantability and fitness for a particular purpose. Also, there is no warranty of non-infringement, title or quiet enjoyment. In no event will either party be liable for costs of procurement of substitute products or services, lost profits, or any special, indirect, consequential, or incidental damages, whether or not such party has been advised of the possibility of such damage, and however caused, on any theory of liability, arising in any way out of this agreement or the termination thereof even in the event of fault, tort (including negligence) strict liability, breach of contract or breach of warranty, and notwithstanding any failure of essential purpose of any limited remedy provided in this agreement. The parties agree that this provision will not limit Macromedia's remedies for the infringement of its intellectual property. Macromedia’s aggregate liability to Licensee or any third party arising out of or in connection with this Agreement or any collateral agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed $25,000.

Indemnity

Licensee will indemnify and hold Macromedia harmless against any cost, loss, liability, or expense (including attorneys' fees) arising out of third party claims against Macromedia resulting from (1) Licensee Product (excluding claims based on the Software) or (2) Licensee’s unauthorized representations or warranties to its customers regarding the Software.

If a claim, suit, proceeding, action or demand is made against Macromedia pursuant to this Agreement, Macromedia will promptly notify Licensee. Licensee may elect to undertake the defense of the claim. If Licensee does not elect to undertake the defense of a claim, Macromedia may undertake the defense, at Licensee’s expense.

General

  1. Governing Law and Jurisdiction. This Agreement will be governed by laws of California. Any action arising out of or related to the Agreement will be brought exclusively in the state and federal courts in the County of San Francisco, California.
  2. Legal Expenses. The prevailing party in any legal action brought by one party against the other and arising out of or related to this Agreement will be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs, experts’ fees and reasonable attorneys' fees.
  3. Notice. All notices under this Agreement will be addressed to or delivered to the parties at the addresses set forth herein and will be sufficient if sent by facsimile.
  4. No Agency. Macromedia and Licensee are each independent entities and neither party will be, nor represent itself to be, a franchisor, franchisee, joint venturer, partner, master, servant, principal, agent or legal representative of the other party for any purpose whatsoever.
  5. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by both parties.
  6. Assignment. This Agreement may not be assigned by Licensee without the prior written consent of Macromedia, except to the purchaser of all or substantially all of the assets of Licensee.