This Value Incentive Plan (“VIP” or “Programme”) Commercial Membership Agreement (“Agreement”) sets forth the terms of your participation as a Member in the Programme. The Agreement is effective as of the date of online enrolment. This Agreement is entered into by and between Adobe and the customer identified in on-line enrolment to become a Member. “Adobe” shall mean either ADOBE INC., a Delaware corporation having a place of business at 345 Park Avenue, San Jose, CA 95110-2704, if the Agreement is entered into with a Member’s organisation that is located in the United States, Canada or Mexico, ADOBE SYSTEMS SOFTWARE IRELAND LIMITED, a company incorporated in Ireland and having a place of business at 4‑6 Riverwalk, Citywest Business Campus, Dublin 24, Ireland as authorised agent of Adobe Systems Pty Ltd (ABN 72 054 247 835), if the Agreement is entered into with a Member’s organisation that is located in Australia or otherwise with ADOBE SYSTEMS SOFTWARE IRELAND LIMITED, a company incorporated in Ireland and having a place of business at 4-6 Riverwalk, Citywest Business Campus, Dublin 24, Ireland. Member shall license all software, services and offerings available under the Programme (collectively “Product”) to be installed and used within the United States (including United States territories and military bases wherever located), Canada or Mexico from Adobe U.S. Member shall license all Products to be installed and used in Australia from Adobe Ireland, as authorised agent of Adobe Systems Pty Ltd (ABN 72 054 247 835). Member shall license all Products to be installed and used in all other countries and territories from Adobe Ireland.
1. Programme Description.
1.1 General and Programme Term. The VIP Programme is a flexible licensing programme designed to allow qualified and eligible customers to manage and deploy Product licences purchased through the Programme. The VIP Programme is a membership programme with licence Subscription Periods as further defined in Section 3.4 of this Agreement. Once the organisation enrols in a membership through the VIP administration user interface and is accepted by Adobe into the Programme, the organisation will be a member of the Programme (“Member”) until the earliest of when (a) Adobe terminates the Programme, (b) this Agreement terminates. Member’s participation is further subject to the terms stated in the programme guide for the Programme, which may be updated from time to time and is available at www.adobe.com/go/vip_program_guide_en (“Programme Guide”). The Programme Guide is hereby incorporated into the Agreement by reference. Adobe may change the terms of the Programme at its sole discretion. If Programme terms change Member may be required to reaccept the Programme terms in the Console.
1.2 Termination. Notwithstanding the foregoing, either party may terminate the Agreement with or without cause on thirty (30) days prior written notice. Termination of this Agreement shall not affect Member’s obligations with regard to any Products ordered prior to the termination date, including without limitation any subscription terms or payment obligations. In addition, Adobe may immediately terminate this Agreement, upon written notice, for a material breach (including but not limited to any misappropriation or infringement of Adobe’s intellectual property rights). If this Agreement terminates, then Member’s organisation shall immediately cease use of the Products, delete the Products from all computer systems and IT equipment on which it resides and return to Member’s Account Manager any media containing the Products as well as any related materials. Account Manager means either (i) Reseller, if a transaction is through a reseller or (ii) Adobe representative, if a transaction is with Adobe.
1.4 Programme Products. For a complete list of Products available through the Programme, Member shall contact its Account Manager or go to the Programme web pages located on Adobe.com http://www.adobe.com/howtobuy/buying-programs/vip.html. All Products purchased through the Programme are solely for use within Member’s own organisation and all re-sale, sublicensing and other distribution is prohibited except as set forth in Section 4.1 and/or the Programme Guide, if applicable. Certain offerings may be available for licence by purchasing Consumables, as described in the Programme Guide.
1.5 Affiliates. Adobe agrees that customer's Affiliates may place orders under this Agreement for the Products and use such Products provided hereunder. Customer retains ultimate liability for any acts or omissions of such Affiliate. Affiliate means, for Member, any other entity that controls, is controlled by, or under common control with, Member. For the purposes of this Section 1.5, the term “control” means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation or economic interest in this entity.
2.1 Adobe ID and VIP ID. An Adobe ID will be required in order to enrol in the Programme. Each Member will be assigned a VIP ID which must be referenced on all orders. Member is responsible for acts or omissions of anyone who obtains access to and use of the Products through Member.
2.2 Console. The Programme administration user interface is the “Admin Console.” Once the terms of this agreement are accepted, the individual accepting on behalf of the organisation will be assigned as the Contract Owner. The Contract Owner can add system administrator(s) (each an “Administrator”). The Contract Owner and any Administrator will be provided access to the Admin Console where they will have the ability to access the Product, manage their subscriptions and view their account information. The Admin Console will allow the Administrator to invite additional users within their organisation to gain access to the Admin Console. Member authorises any Administrator or Contract Owner to act on Member’s behalf.
2.3 Confidentiality. Member shall treat VIP ID as confidential and not share or disclose such information except with Member’s Account Manager.
2.4 Memberships. The terms of Exhibit B apply to Education, Government and Non-Profit Memberships. Member must use a separate VIP Agreement for any Products made available and ordered for use in the People’s Republic of China.
3. Ordering, Pricing and Fulfilment.
3.1 Ordering and Pricing. Member shall place Product orders with their Account Manager. All fees are determined by Member’s Account Manager. Matters such as price, delivery and payment terms must be agreed between Member and Member’s Account Manager. Adobe cannot guarantee any particular discount, unless Adobe is Member’s Account Manager.
3.2 Access, Admin Console Deployment and Fulfilment. Upon becoming a Member, Member’s Administrator will be provided access to the available Products, through the Admin Console. Member may add many Products from the Admin Console and obtain immediate access to such Products. Adobe must receive an order for any such Products within the Grace Period.
3.3 Grace Period for Products Added in Admin Console. The Grace Period is 14 days after adding such Products. If Adobe does not receive an order for such Products within the Grace Period, then Member will no longer be allowed to add additional Products until payment is made for all added Products. Member may manage the number of Products deployed in the Console.
3.4 Agreement Anniversary Date, Subscription Period and Renewals.
3.4.1 Anniversary Date. Unless otherwise communicated by Adobe, Member’s Anniversary Date is the day twelve months after Adobe accepts Member’s initial order (“Anniversary Date”).
3.4.2 Subscription Period. The Subscription Period means the period that a Member may use Products and includes the initial Subscription Period and any renewal Subscription Period. The initial Subscription Period means the period that begins on Member’s initial order date and ends the day prior to the Anniversary Date. With Product subscription renewal, a renewal Subscription Period will begin on the Anniversary Date and continue until the day prior to the next Anniversary Date. Use of subscription Products and any related services co-terminates on the last day of the Subscription Period. Most Consumables must be used within a single Subscription Period and any unused Consumables will expire on the last day of the Subscription Period. Additional information may be found in the Programme Guide.
3.4.3 Subscription Renewals. Adobe or Account Manager will use reasonable efforts to notify Member prior to any Subscription Period end date. Subscriptions must be renewed prior to the Anniversary Date in order to ensure uninterrupted use of Product.
3.5 Upgrade Protection. Purchase of the subscription Product(s) includes upgrade entitlement, meaning Member will be entitled to receive the latest generally available version of a subscription Product purchased under the programme as long as the Product subscription is paid and active at the time Adobe makes the new version of the Product commercially available.
3.6 Returns. Without prejudice to any rights that a Member may have under any consumer laws in the jurisdiction that Member is located, once a Product is installed or accessed, Member cannot return it. If Member requests a return prior to installation, Member must return the entire order. Member must request the return of Products purchased under the Agreement through Member’s Account Manager. Subject to any applicable warranty rights, return requests must be made to Member’s Account Manager within fourteen (14) days after Member’s original Product order date. Adobe must approve all return requests before any return is valid, as further described in the Programme Guide.
3.7 Orders Direct From Adobe. If Member orders direct from Adobe, then this section will apply. Members can add Products at any time via the Admin Console or via an Adobe representative, but you must place an order for all Products with an Adobe representative. Products are priced at the rates current at the time ordered and prorated based on the days remaining in your Subscription Period. Notwithstanding the language in 3.2, 3.3 and 4.2, if you add Products via the Admin Console, then Adobe my invoice you directly for those products at the then current price. Your order may be subject to credit approval. Member will be charged the Product price, plus applicable taxes. For any ordered Products, Member must pay in full within 30 days of the invoice date in accordance with the invoice. Any amounts not paid when due will bear interest at a rate which is the lesser of 1.0% per month or the maximum rate permitted by applicable law on any overdue fees, from the date due until the date the full amount plus interest is paid in-full.
4. VIP Marketplace.
4.1. Section 4 “VIP Marketplace” will only apply to Products licensed through VIP Marketplace. Despite language in Section 3.4.3 above, at the end of your subscription term in VIP Marketplace, your annual subscription will automatically renew based on Adobe’s partner price: 1- in effect on your Anniversary Date and 2-for your qualifying discount level, unless you elect to change or cancel at least 3 days before your Anniversary Date or Adobe communicates otherwise. For clarity, your Account Manager will determine your Product fees. See VIP Marketplace Programme Guide for details. Member may work with their Account Manager to adjust Product subscriptions.
4.2 VIP Marketplace Grace Period. Notwithstanding Section 3.2 and 3.3, the Grace Period for VIP Marketplace Products is seven days after adding Products, not 14 days. If Adobe does not receive an order for Products added through VIP Marketplace within the Grace Period, then such Products will be removed.
5.1 Transfer of Licence. Product TOUs do not govern restrictions regarding the transfer of Products licensed under or in connection with this Agreement. In limited circumstances, Adobe may permit the transfer of Product licences under this Agreement in its sole and exclusive discretion. Such requests should be directed to Adobe Customer Service including a description of the reason for the proposed transfer and the contact information of the transferee. Additional information may be found in the Programme Guide. For clarity, all offerings are licensed, not sold.
5.2 Licence Compliance. Member must maintain systems and/or procedures sufficient to ensure an accurate record of the number of copies of the Products that have been installed and/or deployed and retain records of Product installation and/or deployment for two (2) years after the termination of the Agreement. Adobe and/or its representatives may conduct an audit of Member’s Product installation/deployment not more than once every year on thirty (30) days written notice. Such audit will require Member to provide an unedited, accurate report of all Products installed/deployed and accessed by Member and all valid purchase documentation for all Products within thirty (30) days after request. If the audit findings demonstrate non-conformity with the Product licences, Member shall purchase the necessary licences within thirty (30) days after being so notified. Notwithstanding the foregoing, Adobe reserves the right to conduct an onsite audit of Member licence installation and deployment after ten (10) working days’ prior written notice during regular business hours. This Section 5.2 shall survive termination of the Agreement for a period of two (2) years.
5.3 Use of Information. Adobe may use information about Member or Affiliate, including name and contact information, for fulfilling obligations under the Agreement. For more information, please see the Adobe Privacy Centre (adobe.com/privacy).
5.4 Standing. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If Member is an entity of the United States Federal Government, Member agrees that Adobe shall have standing and the right to assert any breach of contract claim arising out of this Agreement under the Contracts Disputes Act of 1978 (“Disputes Act”).
5.5 General. The parties are independent contractors and this Agreement will not be construed to imply that either party is the agent or venturer of the other. Member may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Adobe and any prohibited assignment is null and void. Adobe may, at its sole discretion, assign or novate this Agreement, without the prior written consent of Member. This Agreement will be binding upon and will inure to the benefit of any permitted successors or assignees. No modification will be valid or binding unless in writing. This Agreement (including the Programme Guide, applicable TOUs and any Exhibits or on-line enrolment information, if applicable) represents the entire agreement between the parties on the subject matter of this Agreement. If any provision of this Agreement is held unenforceable, the remainder of the Agreement will continue in full force and effect. If Member’s Account Manager is no longer an Authorised Adobe Account Manager, then after notice to Member, Adobe may move Member’s account under a then-current Authorised Adobe Account Manager.
This Agreement is prepared and is executed in the English language only. The English language version shall be controlling in all respects and any version of this Agreement in any other language, shall not be binding and shall have no effect. Further, each party agrees that signature by Member or Adobe on any non-English language version, even if there is no signature(s) on the English language version shall be deemed execution of the English language version and binding on the parties. Without limiting the foregoing, if there is any conflict or inconsistency between the English language version of this Agreement and any other translated version of this Agreement, the English language version and interpretation shall prevail. All communications or notices to be made or given pursuant to this Agreement and any disputes arising under this Agreement shall be conducted or resolved in the English language.
5.6 Services. The Product may integrate with a variety of services, operated either by Adobe or by third parties, which may contain user-generated content that may be (a) inappropriate for minors, (b) illegal in some countries; or (c) inappropriate for viewing at work. A complete list of integrated services is available here: www.adobe.com/go/integratedservices. If Member wants to prevent viewing of or access to user-generated content services it may (i) disable service access in the Creative Cloud Packager, where that functionality is made available or (ii) block access to the services via its network firewall. Services are not, under any circumstances, available to users under the age of thirteen (13). Adobe disclaims liability for all user-generated content available via the services. Member is responsible for determining whether use of the services complies with applicable laws in Member’s jurisdiction. Member is not entitled to a refund and Adobe is not liable (i) if access to the services is slowed or blocked as a result of government or service provider action or (ii) if Adobe reasonably deems it necessary to block access to some or all of the services.
EDUCATION, GOVERNMENT AND NON-PROFIT MEMBERSHIPS
A. EDUCATION MEMBERS
For the Member who is an Education Entity (defined below), the following additional terms apply. Adobe reserves the right to terminate Education memberships if Member is not an Educational Entity.
1. Definitions Applicable to Education Members.
1.1 Education Entity. The following is a non-exhaustive list of qualified educational institutions: (a) Accredited (by official accrediting entities) public or private primary or secondary school providing full-time instruction; (b) Accredited public or private university or college (including community, junior or vocational college) that grants degrees requiring not less than the equivalent of two years of full-time study; (c) Named educational institutions, if individually approved in writing by Adobe; (d) Hospitals that are wholly owned and operated by an otherwise qualified educational institution, where “wholly owned and operated” means the educational institution is sole owner of the hospital and the only entity exercising control over day to day operations; and (e) Higher education research laboratories that are i - a public institution and recognised by a national or regional educational authority, ii - teach students and iii - can provide a copy of the bylaws that state the relationship with the controlling university.
The following is a non-exhaustive list of entities that are not qualified educational institutions: (a) Non-accredited schools; (b) Museums or libraries; (c) Hospitals not wholly owned and operated by an otherwise qualified educational institution; (d) Churches or religious organisations that are not accredited schools; (e) Vocational training centres or schools granting certificates for courses such as computer software training or job training that are not accredited schools or which grant degrees requiring less than the equivalent of two years of full-time study; (f) Military schools that do not grant academic degrees; and (g) Research laboratories not recognised by a national or state ministry overseeing education. For example, institutions recognised by other government branches are not eligible.
The above lists do not apply to the countries as listed in Section 1.2 (Regional-Specific Definition) below.
1.2 Regional-Specific Definition of Education Entity.
(a) Asia Pacific Countries excluding Southeast Asia Countries as defined in sub-paragraph (b) below. If Education Member is resident in Australia, New Zealand, India, Sri Lanka, China mainland, Hong Kong SAR of China., Taiwan region, the Republic of Korea, the People’s Republic of Bangladesh, the Federal Democratic of Nepal, the Republic of the Union of Myanmar, Pakistan or Mongolia or any country designated by Adobe from time to time, “Education Entity” shall mean the entities that satisfy the meaning of “Qualified Educational Users” (except for the sections entitled “Full and Part Time Faculty and Staff” and “Students”) designated by Adobe on https://www.adobe.com/special/avl/education/ap/index2.html (or its successor web site thereto), as updated by Adobe from time to time.
(b) Southeast Asia Countries. If Education Member is resident in Indonesia, Malaysia, Philippines, Singapore, Thailand and Vietnam, “Education Entity” or “Education Institution” shall have the respective meanings designated by Adobe on https://www.adobe.com/go/edu_entity_sea (or its successor web site thereto), as updated by Adobe from time to time.
(c) Japan. If Education Member is resident in Japan, “Education Entity” or “Education Institution” shall have the respective meanings designated by Adobe on https://helpx.adobe.com/jp/x-productkb/policy-pricing/cq081918191.html (or its successor web site thereto), as updated by Adobe from time to time.
1.3 Primary and Secondary Schools. Primary and Secondary Schools are defined in the Programme Guide. Adobe may have offers available to members that qualify as Primary and Secondary Schools. Adobe reserves the right to terminate Primary and Secondary School licences and memberships if Member is not a Primary and Secondary School as defined in the Programme Guide. See VIP Education Programme Guide for additional details and http://www.adobe.com/go/primary-secondary-institution-eligibility-guidelines.
B. GOVERNMENT MEMBERS
For the Member who is a Government Entity (defined below), the following additional terms apply. Adobe reserves the right to terminate Government memberships if Member is not a Government Entity.
1. Definitions Applicable to Government Members.
Government Entity. Participation is contingent upon Member (and each Affiliate) being a “government entity”, which means: (a) a federal, central or national agency, department, commission, board, office, council or authority (executive, legislative or judicial); (b) a municipality, special district, city, county or state governmental agency, department, commission, board, office, council, entity or authority or any other agency in the executive, legislative or judicial branch of state or local government that is created by the constitution or a statute of the governing state, including the district, regional and state administrative offices; or (c) a public agency or organisation created and/or funded by federal, state or local governments and authorised to conduct the business of governing or supporting citizens, businesses or other governmental entities. For the avoidance of doubt, the following entities are not Government Entities: private “for profit” companies, non-profit organization, trade or industry associations, higher education institutions and labour unions, even those conducting work on behalf of or with government agencies, unless such entity has a specific letter of authorisation from an U.S Government Entity pursuant to FAR Part 51. Member represents to Adobe that it and its Affiliates are government entities. A list of qualified “Government Entities” for Japan is available at: http://www.adobe.com/jp/aboutadobe/volumelicensing/pdfs/cl5_government_license_table.pdf.
1.1 For France: a Government Entity is either an agency; a minister; a commission, board, office or council (national, regional or local); a city; a region; or any entity subject to the French Public Law and under the administration of a government entity.
2. Terms Applicable to Government Members.
2.1 Additional Restrictions. For United States Federal Government Members, it is understood that any orders are subject to FAR 52.232-18 (Availability of Funds) and FAR 52.232-19 (Availability of Funds for the Next Fiscal Year) and therefore United States Federal Government Members shall not deploy any Product unless funds are available to pay for such orders. To the extent any state or local government entity is subject to similar requirements, such entities shall not deploy any Product unless funds are available to pay for such orders.
2.2 Termination. This Agreement may be terminated by a Member who is a United States federal government customer pursuant to FAR 52.249-1 (Termination for Convenience of the Government). Adobe may change the Terms at its sole discretion.
2.3 Federal Government Members. Notice to U.S. Federal Government End-users (Commercial Items): The Products, provided under this Agreement are “Commercial Item(s),” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” and services related thereto, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Federal 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 of this Agreement and the TOUs. Unpublished rights are reserved under the laws of the United States- Adobe Inc., 345 Park Avenue, San Jose, CA 95110-2704, USA.
C. NON-PROFIT MEMBERS
Additional terms applicable to Non-Profit Members are contained in the Programme Guide. Adobe reserves the right to terminate memberships, if Member is not an eligible non-profit organization, as described on https://helpx.adobe.com/buying-programs/non-profit.html.