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End User License Agreement

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MACROMEDIA MASTER END USER LICENSE AGREEMENT (“EULA”) - MACROMEDIA DEVNET SUBSCRIPTIONS

You should carefully read and agree to this entire EULA before installing or using the Product (as defined below) provided under DevNet Subscriptions. Some key provisions of this EULA are as follows:

· Only one user is authorized to use each license of the Product (e.g. DevNet Professional or DevNet Essentials, or other subscription type).

· The Server Software (as defined below) may only be used by you for purposes of designing, developing, testing, evaluating and demonstrating your software products on a development server only; it may not be used for any production use, including without limitation, load testing.

· This EULA provides terms and conditions for all Elements (as defined below) of the Product, including, without limitation, Tools Software, Server Software, DRK Components, DRK Extensions, Sample Files, and other content (as such terms are defined below).

 

IMPORTANT: THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND MACROMEDIA, INC. FOR THE MACROMEDIA, INC. PRODUCTS PROVIDED TO YOU UNDER THE MACROMEDIA DEVNET SUBSCRIPTIONS (“DEVNET SUBSCRIPTIONS”), WHICH MAY INCLUDE, WITHOUT LIMITATION, COMPUTER SOFTWARE, ASSOCIATED MEDIA, PRINTED MATERIALS, “ONLINE” OR ELECTRONIC DOCUMENTATION, AND SERVICES (COLLECTIVELY, “PRODUCT”). READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS, COPYING OR OTHERWISE USING THE PRODUCT. IT PROVIDES A LICENSE TO USE THE PRODUCT AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE PRODUCT AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT USE AND/OR INSTALL ANY ELEMENTS (AS DEFINED BELOW) OF THE PRODUCT. THE FEE FOR THE PRODUCT UNDER THE DEVNET SUBSCRIPTIONS IS NON-REFUNDABLE. In addition, by installing, copying, or otherwise using subscription updates that you receive as part of the Product (“Updates”), you agree to be bound by the modified and/or additional license terms, if any, that specifically add to or modify this EULA and accompany or are provided with respect to such Updates. If you do not agree to the additional and/or modified license terms that accompany or are provided with respect to such Updates, you may not install, copy, or use such Updates. In order to adapt to changes in the DevNet Subscriptions, Macromedia may from time to time, modify and/or add to the terms and conditions of this EULA.

 

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

 

The Product is licensed through the DevNet Subscriptions. This EULA shall apply only with respect to the Product provided under the DevNet Subscriptions. Macromedia has, and from time to time, will introduce, products and services that are provided outside of the DevNet Subscriptions. This EULA shall not apply with respect to products or services received outside of the DevNet Subscriptions. Such products and services received outside of the DevNet Subscriptions shall be governed by their own applicable terms and conditions, if any. YOU SHALL HAVE ACCESS TO DEVNET SUBSCRIPTIONS AND BE PROVIDED ELEMENTS (AS DEFINED BELOW) TO THE PRODUCT UNDER THE DEVNET SUBSCRIPTIONS ONLY DURING YOUR SUBSCRIPTION PERIOD (INCLUDING ANY RENEWAL PERIOD(S)).

 

1. Applicability of License

(a) Depending on the subscription level you have chosen, the Product may consist of materials including, without limitation, software, Updates, extensions, components, sample files, product documentation, sample applications, books and periodicals, tools and utilities, miscellaneous technical information, operating systems, development toolkits, server applications, development tools and services (each, an “Element,” and collectively “Elements,” of the Product); the Product may include, but not be limited to, groups of Elements identified as any one or more of the following: Server Software, Tools Software, and DevNet Resource Kits. This EULA defines your rights to the Elements of the Product you have elected to receive as part of your subscription to the DevNet Subscriptions.

(b) Elements that you receive as part of the Product may have their own licenses (each, an “Element Agreement”). This EULA shall supercede in its entirety such Element Agreement, regardless of whether a subsequent click-through acceptance of such Element Agreement is required during the installation or use of such Element. Notwithstanding the prior sentence, the Distribution Agreement for the Macromedia Dreamweaver MX Updater for Contribute that may be supplied herewith shall not be superceded by this EULA as it relates to the distribution of such Updater.

 

2. Definitions

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

(b) “Server Sample Application Code” shall have the meaning ascribed to it in Section 5(b) of this Agreement.

(c) “Server Software” shall mean the Software products supplied herewith and may include Macromedia ColdFusion, Macromedia JRun, Macromedia Flash Remoting, Macromedia Flash Communications Server, and any other Software that Macromedia may designate from time to time as Server Software for purposes of the DevNet Subscriptions.

(d) "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.

(e) “Tools Sample Application Code” shall have the meaning ascribed to it in Section 4(d) of this Agreement.

(f) “Tools Software” shall mean the Software products supplied herewith and may include Macromedia Contribute, Macromedia Dreamweaver, Macromedia Fireworks, Macromedia Flash, Macromedia Flash Player, Macromedia FreeHand, and Macromedia Homesite+, and any other Software that Macromedia may designate from time to time as Tools Software for purposes of the DevNet Subscriptions.

 

3. General License Grant

The licenses granted in this EULA are subject to the terms and conditions set forth in this EULA.

In general, for each license you have acquired for the Product, one individual is authorized to use the Product according to the terms of this EULA. Unless expressly stated otherwise, the Product may not be separated for use by more than the one individual authorized to use the Product. A single subscription through the DevNet Subscriptions may have multiple licenses to use the Product associated with that subscription; nonetheless, each license must be dedicated to use of the Product by one individual.

Specifically:

(a) If you are an individual, Macromedia grants to you as an individual a personal, nonexclusive license to use Product in accordance with the terms of this EULA, provided that you are the only individual using the Product.

(b) If you are an entity, Macromedia grants to you the right to designate one individual within your organization to have the sole right to use the Product in accordance with the terms of this EULA.

(c) If you are an entity and have acquired this EULA with respect to multiple licenses of the Product, Macromedia grants to you the right to designate one individual per license (i.e., on a one-for-one basis) within your organization to have the sole right under each such license to use the Product in accordance with the terms of this EULA; provided, however, you may change such individual within your organization in accordance with the procedures described in the DevNet Subscriptions.

 

4. License Applicable to Tools Software only

(a) Subject to Section 4(b), you may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. Notwithstanding the prior sentence, with respect to the Macromedia Flash Player Software, subject to Section 4(b), you may install and use the Software on a single desktop computer that has a Windows PC (including Windows 95, 98, 2000, NT, Me and XP), a Macintosh desktop operating system, a Linux desktop operating system, or a Solaris desktop operating system; provided, however, that, notwithstanding anything contrary contained herein, you may not use the Software on any non-PC product, including, but not limited to, a web appliance, set top box (STB), handheld, phone, or web pad device. Except as otherwise provided in Section 4(b), a license for the Software may not be shared, installed or used concurrently on different computers.

(b) Portable or Home Computer Use for Software Requiring Mandatory Product Activation. For Software requiring Mandatory Production Activation, in addition to the single copy of the Software permitted in Section 4(a), the primary user of the computer on which the Software is installed may make a second copy of the Software and install it on either a portable computer or a computer located at his or her home for his or her exclusive use, provided that:

(A) the second copy of the Software on the portable or home computer (i) is not used at the same time as the copy of the Software on the primary computer and (ii) is used by the primary user solely as allowed for such version or edition (such as for educational use only), (B) the second copy of the Software is not installed or used after the time such user is no longer the primary user of the primary computer on which the Software is installed, and (C) the Software was not licensed under a volume discount.

(c) In the event the Software is distributed along with other Macromedia Tools Software products as part of a suite of Tools Software products (collectively, the “Studio”), the license of the Studio is licensed as a single product and none of the products in the Studio, including the Software, may be separated for installation or use on more than one computer.

(d) Unless otherwise set forth in the documentation relating to such code and/or the Software or in a separate agreement between you and Macromedia, you may modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, “Tools Sample Application Code”) in the accompanying documentation solely for the purposes of designing, developing and testing websites and website applications developed using Macromedia software programs; provided, however, you are permitted to copy and distribute the Tools Sample Application Code (modified or unmodified) only if all of the following conditions are met: (1) you distribute the compiled object Tools Sample Application Code with your application; (2) you do not include the Tools Sample Application Code in any product or application designed for website development; and (3) you do not use Macromedia's name, logos or other Macromedia trademarks to market your application. 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.

(e) 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.

(f) You may not use the Macromedia (R) Breeze TM plug-in for Microsoft (R) PowerPoint (R) software to create media content for conversion by any means other than with the use of other Macromedia Breeze products without the express written consent of Macromedia.

(g) Mandatory Product Activation. The license rights granted under this Agreement may be limited to the first thirty (30) days after you first install the Software unless you supply information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software through the use of the Internet or telephone; toll charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that Macromedia may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. Product activation is based on the exchange of information between your computer and Macromedia. None of this information contains personally identifiable information nor can they be used to identify any personal information about you or any characteristics of your computer configuration.

(h) Notwithstanding anything herein to the contrary, you may not (A) install FlashPaper Printer on a server for multiple user access or use, or (B) modify or replace the FlashPaper Printer viewer user interface that displays FlashPaper documents.

(i) Your rights to use any Macromedia Flash player, projector, standalone player, plug-in, or ActiveX control, provided to you as part of or with the Software, shall be solely as set forth in the following link, <http://www.macromedia.com/go/flashprojectorusage_en>. Unless and except as provided therein, you shall have no rights to use or distribute such software.

 

5. License Applicable to Server Software only

(a) In general, during your DevNet Subscription period and pursuant to the terms and conditions set forth in this EULA, the Software may only be used by you for purposes of designing, developing, testing, evaluating and demonstrating your software products only on a development server; such Software may not be used for production use or deployed or used for any other purposes. You shall not use the Software for load testing. You shall not use the Software for any training purposes. You shall not use the Software for any application deployment in a live or stand-by production environment, in each case, including, without limitation, in any environment accessed by application end-users through any means, including, but not limited to, servers, workstations, kiosks, and mobile computers. You may make copies, use, and install the Software on any number of computers or servers solely in accordance with this EULA. Each user who is involved in the development of applications that directly accesses any of the applicable code or APIs exposed by the Software must be within your organization and must have a valid DevNet Subscriptions license that permits use of such Software.  Users within your organization who do not directly access any of the application code or APIs exposed by the Software but do access the Software on a development server for the other uses permitted under this EULA do not require a DevNet Subscriptions license.

(b) 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 "Server 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.

(c) If and only if the Software is Macromedia ColdFusion software of any version or edition : 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.

(d) Term of the Server Software license: Subject to the terms and conditions in this EULA, the term of the Server Software license shall expire at the end of your subscription period for the DevNet Subscriptions. Thereafter, you shall immediately cease using the Server Software, and uninstall and destroy all copies of the Server Software licensed to you under the DevNet Subscriptions.

 

6. Additional Rights and Limitations for Tools and Server Software only

(a) 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. You may not sell or transfer any copy of the Software made for backup purposes.

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

(c) 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 server or computer on which the Software is to be installed.

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

(e) If the Software was licensed to you with a discount based, in whole or in part, on your prior license to the same or prior 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 and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity.

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

(g) You may receive the Software in more than one platform but you shall only install or use one platform.

 

7. License Applicable to DevNet Resource Kits (“DRK”) only

(a) License Applicable to DRK Extensions and DRK Components

“DRK Extension” means a file provided in the DRK that extends the functionality of Macromedia products. You agree that you shall not distribute any DRK Extensions modified or unmodified without the consent of Macromedia and/or its licensors.

“DRK Component” means a user interface or pre-built functionality file provided in the DRK that could be used in an application, website or product that is created using Macromedia products.

Macromedia grants you, and you accept, a non-exclusive and non-transferable right to use the DRK Extensions or DRK Components, as applicable, along with any corresponding documentation provided herewith.

Only with respect to the DRK Components, Macromedia grants to you, and you accept, a non-exclusive and non-transferable right to reproduce, modify and distribute the DRK Components, in whole or in part, along with any modifications thereof, provided, that you:

(i) distribute the DRK Components provided herewith only in conjunction with and as part of a software application product (and not as a stand alone product) developed by you in which the DRK Components add functionality to such software application;

(ii) include your own valid copyright notice in your software application product which shall be sufficient to protect Macromedia’s and/or its licensors’ copyright in the DRK Components;

(iii) do not remove or obscure any copyright, trademark or patent notices that appear in the DRK Components as delivered to you;

(iv) do not use Macromedia’s or its suppliers’ names, logos, or trademarks or the names of contributors to endorse or promote your software application products without specific prior written permission from Macromedia;

(v) distribute your software application product containing the DRK Components pursuant to an end user license agreement with terms no less protective than those contained herein; and

(vi) do not permit further distribution of the DRK Components by your end users, except you may permit further redistribution of the DRK Components by your distributors to your end-user customers if your distributors only distribute the DRK Components in conjunction with, and as part of, your software application product and you and your distributors comply with all other terms of this EULA.

 

(b) License Applicable to Sample Files

"Sample Files" are a source code file or files that are made available herein. Sample Files may also be a collection of files in the same or different file formats, and may include related documentation, models, and multimedia content (such as animation, sound, and graphics). Sample Files will usually, but not necessarily, include a file or files which can be opened or used by Macromedia product users. This EULA also extends to any file of any kind which you download with, or as part of, the Sample Files.

All graphics and images included with the Sample Files are distributed under licenses restricting their use, copying, distribution, or decompilation. Graphics and images may not be reproduced, distributed, or decompiled in any form, in whole or in part, by any means without prior written authorization of Macromedia, Inc. and/or its licensors, if any.

Subject to your compliance with this EULA and except as provided otherwise herein, Macromedia grants you a non-exclusive and non-transferable right to use, copy, modify, and create derivative works of the Sample Files source code provided herewith for the purposes of evaluating, designing, developing and testing software products, and to reproduce and distribute the Sample Files in whole or in part, along with any modifications thereof, provided, that you:

(i) distribute the Sample Files provided herewith in source or object code form and only in conjunction with and as part of a software application product developed by you that adds significant and primary functionality to the Sample Files;

(ii) include your own valid copyright notice in your software application product which shall be sufficient to protect Macromedia’s copyright in the Sample Files;

(iii) do not remove or obscure any copyright, trademark or patent notices that appear in the Sample Files as delivered to you;

(iv) do not use Macromedia’s or its suppliers’ names, logos, or trademarks or the names of contributors to endorse or promote your software application products without specific prior written permission from Macromedia;

(v) distribute your software application product containing the Sample Files pursuant to an end user license agreement with terms no less protective than those contained herein;

(vi) do not permit further distribution of the Sample Files by your end users, except you may permit further redistribution of the Sample Files by your distributors to your end-user customers if your distributors only distribute the Sample Files in conjunction with, and as part of, your software application product and you and your distributors comply with all other terms of this EULA; and

(vii) do not reproduce and distribute graphics and images included in the Sample Files in any form, in whole or in part, by any means without prior written authorization of Macromedia, Inc. and/or its licensors, if any.

(c) License Applicable to Content

"Content" shall mean any articles, white papers, documentation, or other similar materials provided herein.

Subject to your compliance with this EULA and except as provided otherwise herein, Macromedia grants you a non-exclusive and non-transferable right to use the Content.

You shall not have any right to distribute, sublicense or modify the Content in any way.

(d) Other Restrictions and Conditions

Except to the extent contrary to applicable law:

(i) You shall indemnify, hold harmless, and defend Macromedia and/or its licensors from and against any claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of your software application and/or the DRK Extensions, DRK Components, Sample Files and/or Content.

(ii) You may receive the DRK Extensions, DRK Components, Sample Files or Content 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 DRK Extensions, DRK Components, Sample Files, or Content, as applicable, is to be installed.

(iii) Macromedia may terminate the EULA immediately with respect to any DRK Extension, DRK Component, Sample File or Content should any DRK Extension, DRK Component, Sample File or Content, in whole or in part, become, or in Macromedia’s reasonable discretion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon termination, you must destroy all copies of such DRK Extension, DRK Component, Sample File or Content.

(iv) You understand that Macromedia may or may NOT have authored the DRK Extensions or DRK Components, and that a third party to which Macromedia has no relationship may have authored the DRK Extensions or DRK Components.

8. Additional Rights and Limitations - General

(a) You may not sell or transfer any Product, in whole or in part.

(b) Other than as set forth in this EULA, you may not make or distribute copies of the Product.

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

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

(e) Unless otherwise expressly provided herein, you may not modify the Product or create derivative works based upon the Product.

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

(g) You may not use the Product in any way other than as expressly permitted under this EULA.

(h) All Updates shall be considered part of the Product and subject to the terms and conditions of this EULA, and any additional or modified terms and conditions that expressly add to or modify this EULA. By installing, copying, or otherwise using any Update, you agree to be bound by the terms and conditions accompanying each such Update. If you do not agree to the additional or modified license terms accompanying such Updates, do not install, copy, or otherwise use such Updates.

(i) You agree that Macromedia may audit your use of the Product for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Product 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.

(j) In the event that you fail to comply with this EULA, without prejudice to any other rights, Macromedia may terminate the license with respect to any or all Elements, and you must destroy all copies of such Elements (with all other rights of both parties and all other provisions of this EULA surviving any such termination).

9. Ownership

The foregoing license gives you limited license to use the Product. Macromedia and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Product (as an independent work and as an underlying work serving as a basis for any application 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.

10. LIMITED WARRANTY AND DISCLAIMER

(a) With respect to the Tools and Server Software (except for Tools Sample Application Code, Server Sample Application Code, and Macromedia Flash Player 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) EXCEPT AS PROVIDED IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO THE TOOLS AND SERVER SOFTWARE, MACROMEDIA PROVIDES NO OTHER REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE PRODUCT, AND THE PRODUCT IS PROVIDED “AS IS”.

(c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO THE TOOLS AND SERVER SOFTWARE, 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 PRODUCT 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 PRODUCT 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 PRODUCT, 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) (USA only) SOME STATES 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.

11. Exclusive Remedy

Your exclusive remedy under the preceding section is to return the Tools and Server 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.

 

12. 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 PRODUCT 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 $50 IN THE CASE OF THE MACROMEDIA FLASH PLAYER SOFTWARE) OR THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT CAUSED SUCH DAMAGE.

(c) (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR 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.

13. Basis of Bargain

The Limited Warranty and Disclaimer, Exclusive Remedies and Limited 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 Product on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of Macromedia’s licensors.

14. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND

This Product is 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.

15. (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.

16. 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.

17. 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 Product 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.

The effective date of the prior paragraph shall immediately follow any click-through acceptance of any EULA accompanying an Element.

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

If any provision of this EULA 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 EULA 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 or other Elements. This EULA does not authorize you to use Macromedia’s or its licensors’ names or any of their respective trademarks.

_______________________________________________________________________________________________

OPERA BROWSER SOFTWARE END USER LICENSE AGREEMENT

IN THE EVENT OPERA BROWSER SOFTWARE IS PROVIDED IN OR ALONG WITH THE SOFTWARE DESCRIBED ABOVE, WITH RESPECT TO THE USE OF SUCH OPERA BROWSER SOFTWARE ONLY, THE FOLLOWING END USER LICENSE AGREEMENT SHALL GOVERN:

Opera Browser Information: LICENSE.TXT

===========================================

Copyright (C) Opera Software 1995-2003

IMPORTANT NOTE

The Software, as defined below, is protected by copyright, which are vested in Opera Software ASA/its suppliers.

Registration codes, as defined below, are protected by copyright, which is vested in Opera Software ASA.

The Software and Registration Codes may only be used in accordance with the terms and conditions set out in this document.

If you do not read and agree to be bound by the terms and conditions defined in this document, you are not permitted to keep or use the Software or Registration Codes in any way whatsoever and must destroy or return all copies of these items which are in your possession.

To make personalized advertising possible, users of the ad-sponsored software may provide ad-related profile information on strictly a voluntary basis. The Opera Software ASA privacy policy, found at <http://www.opera.com/privacy/> governs the use of such profile information.

END USER LICENSE AGREEMENT

DEFINITIONS

The following definitions apply to the terms and conditions included in this Agreement.

Opera means a Browser, developed by Opera Software ASA, for reading and writing files to and from a network and/or file system.

Software

means Opera, all program and information files and other documentation which are part of the Opera Software package, with the exception of the Registration Codes.

Registration Code

registers a paid version of the software. This disables the advertising banner in the Browser’s top right hand corner, and removes advertising content which has been cached.

Individual

means a particular person.

TERMS OF AGREEMENT

This is a legal agreement between you, the users, and Opera Software ASA. By installing or using this Software, you agree to be bound by the terms of this agreement. If you do not agree to those terms, you may not use or install the Software.

You are entitled to use your copy of the Software on one computer. "Use" means loaded in temporary memory or permanent storage on the computer. Installation on a network server for distribution to other computers is not allowed, unless you have a separate license for each computer to which the Software is distributed. You are obligated to have a reasonable process to assure that the number of persons using the Software concurrently does not exceed the number of licenses.

The Software is protected by Norwegian and United States copyright laws and international treaties. You may make one copy of the Software solely for backup or archival purposes or transfer it to a single hard disk provided you keep the original disk solely for backup or archival purposes. You may not rent or lease the Software or copy any written materials accompanying the Software. You may transfer the Software and all accompanying materials to another individual on a permanent basis, if you retain no copies and the recipient agrees to the terms of this Agreement. Any transfer must include the most recent update and all prior versions.

All intellectual property rights such as but not limited to patents, trademarks, copyrights or trade secret rights related to the Software are the property of and remains vested in Opera Software ASA/its suppliers.

You shall not modify, translate, reverse engineer, decompile or disassemble the Software or any part thereof or otherwise attempt to derive source code or create derivative works therefrom.

You are not allowed to remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained with the Software.

Registration Codes may be used, stored or copied only by the person or organization, which has licensed the Software, and solely for the purpose of using the Software within the terms and conditions of this Agreement. No person or organization is permitted to store or copy a Registration Code for any other purpose without written agreement from Opera Software ASA.

The copyright of all Registration Codes remains vested in Opera Software ASA which reserves the right to withhold or withdraw authorization of use of all Registration Codes issued to a person or organization if there is reasonable evidence to indicate that the person or organization is involved in a breach of the terms of this document.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR OWN RISK AND THAT THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER. OPERA SOFTWARE ASA OR ITS SUPPLIERS DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE AND THE RESULTS OBTAINED FROM THE SOFTWARE.

YOU ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED FOR USE IN (I) ON-LINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS; OR (II) IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY.

OPERA SOFTWARE ASA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES RELATED TO: NON-INFRINGEMENT, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE .

IN NO EVENT SHALL OPERA SOFTWARE ASA OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PERSONAL INJURY, LOSS OF PRIVACY OR OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPERA SOFTWARE ASA ALSO DISCLAIMS ALL LIABILITY FOR ACTS OR MATERIAL PRESENTED BY THE ADVERTISER, AD-SERVING PARTNERS OR OTHERS (INCLUDING UNAUTHORIZED USERS, OR "CRACKERS").

REGARDLESS OF THE FORM OF ACTION, OPERA SOFTWARE ASA AND ITS SUPPLIERS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAYABLE BY YOU UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

The Software may be subject to export or import regulations, and the user agrees to comply strictly with all such laws and regulations. The user agrees not to export or re-export the Software or any part thereof or information pertaining thereto to any country for which a U.S. government agency requires an export license or other governmental approval without first obtaining such license or approval.

Notice to U.S. Government Users: The Software and any associated documentation are "Commercial Items," as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," 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 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.

Privacy statement: Opera Software ASA strives to protect the security and privacy of the users of its products, and will strictly protect the security of the users personal information, within the confines of the Opera domain. The Opera Software ASA privacy statement found at <http://www.opera.com/privacy/>, is incorporated in this Agreement by reference.

Any variation to the terms of this Agreement shall only be valid if made in writing by Opera Software ASA.

Any and all disputes arising out of the rights and obligations in this Agreement shall be submitted to ordinary court proceedings. You accept the Oslo City Court as legal venue under this Agreement.

This Agreement shall be governed by Norwegian law, and the stipulations set forth herein to be construed in accordance with same.

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Postal enquiries:

Opera Software ASA

Postboks 2648 St. Hanshaugen

NO-0131 OSLO

NORWAY

Office Hours: 9:00am - 4:00pm (+1 GMT) Monday - Friday

Phone: +47 24 16 40 00

Fax: +47 24 16 40 01

Please visit our Web site before you send us e-mail. We provide many services to our users that will help us respond to you faster than if we receive e-mail.

Web site:

<http://www.opera.com/>

Contact us:

<http://www.opera.com/contact/>