IMPORTANT: THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND ADOBE. PLEASE READ IT CAREFULLY BEFORE ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE PRERELEASE SOFTWARE. THIS AGREEMENT PROVIDES RESTRICTIONS AND OBLIGATIONS WITH RESPECT TO THE CONFIDENTIAL INFORMATION ADOBE PROVIDES TO YOU IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, THIS AGREEMENT PROVIDES YOU WITH A LIMITED LICENSE TO USE THE CONFIDENTIAL INFORMATION AND CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE PRERELEASE SOFTWARE, YOU CONFIRM YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS, ACKNOWLEDGE YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, AND AGREE TO BE BOUND BY ITS TERMS, RESTRICTIONS, AND CONDITIONS.
BY SUBMITTING PERSONAL INFORMATION IN CONNECTION WITH THE TERMS OF THIS AGREEMENT, YOU UNDERSTAND AND AGREE THAT THIS INFORMATION MAY BE TRANSFERRED ACROSS NATIONAL BOUNDARIES AND MAY BE STORED AND PROCESSED BY ADOBE AND ITS AGENTS IN ANY OF THE COUNTRIES IN WHICH ADOBE MAINTAINS OFFICES, INCLUDING THE UNITED STATES.
Adobe is in the business of developing, marketing, distributing and providing software, services and other technology around the world. You desire to evaluate prerelease versions of Adobe software, services and technology. Your evaluation of, and feedback about, the Prerelease Software is useful for the further development and refinement of Adobe's technologies. Your participation is useful for your own personal and professional development related to your general use of Adobe’s software, services, and technologies. The parties agree as follows:
1.1 “Adobe” means Adobe Inc., its affiliates and assigns, a Delaware corporation with its an address of 345 Park Avenue, San Jose, CA 95110 2740 U.S.A.
1.2 “Confidential Information” means the Prerelease Software, related information supplied to you by Adobe, and any Evaluation Feedback. “Confidential Information” whether in written, verbal, graphic or electronic form, including without limitation, (A) the Prerelease Software’s existence, features and functionality, fonts, user interface details (including screen shots), capabilities, specifications, architectural diagrams, APIs and related information, serial numbers, login identifiers, passwords, Adobe development and shipping schedules, Adobe email lists, bug databases, know how, trade secrets, and source code; (B) any Evaluation Feedback regarding the same; (C) discussions of potential features, product changes, Evaluation Feedback, and opinions stemming from the Evaluation Feedback, including the existence of any business discussions, negotiations, or agreements in progress between you and Adobe; (D) opinions stemming from the customer advisory boards organized by Adobe, and (E) the terms and conditions of this Agreement.
1.3 “Evaluation Feedback” means your feedback relating to your access to, use and evaluation of the Prerelease Software, including without limitation, feedback on features or functionality, usability, specifications, architectural diagrams, APIs and related information, software or hardware compatibility, interoperability, performance, bug reports, test results and documentation requirements, and may also include suggestions or ideas for improvements or enhancements to the Prerelease Software.
1.4 “Hosted Service” means the version of the Prerelease Software provided to you by Adobe (or by a third-party host on Adobe’s behalf) through the internet or via another network connection for use under this Agreement.
1.5 “You” or “you” means the individual who has accepted this Agreement prior to accessing the Prerelease Software or who downloads, installs, accesses or otherwise uses the Prerelease Software.
1.6 “Content” means any content that you upload, post, or email, including, but not limited to, information, data, documents, communications, files, text, images, photographs, graphics, videos, webcasts, tools, resources, software and products that you transmit or otherwise make available as part of your testing of the Hosted Services. For the avoidance of doubt, test results provided by you to Adobe regarding the Hosted Service are excluded from this definition and is subject to the Evaluation Feedback provision in the Agreement.
1.7 “Prerelease Software” means non-public, prerelease versions of the software, services, technologies, and related materials and information as determined by Adobe in its sole discretion, including, without limitation, any development tools, documentation, support materials, sample code, corrections and updates supplied by Adobe to you.
1.8 “Testing Period” means the time from your receipt of the Prerelease Software until the earlier of 30 days after the first commercial release of the Prerelease Software or your purchase of a commercial license of the Prerelease Software.
3. License Terms.
3.1 Evaluation License. Subject to the terms of this Agreement, Adobe grants you a limited, nonexclusive, non-transferable and royalty-free license to install and use the Prerelease Software during the Testing Period on your device solely for the purpose of internal, non-public evaluation of the Prerelease Software and supplying Evaluation Feedback to Adobe. Your use of the Prerelease Software does not include the right to make any public, productive or commercial use of the Prerelease Software, except that you may upload Content created using the Prerelease Software to social media websites if the Prerelease Software contains activated features that enable the output of Content that you create using the Prerelease Software.
3.2 Usage Tracking. Adobe may collect information on your usage of the Prerelease Software, including Personal Information, and may use this information to modify, improve, or enhance the Prerelease Software or your ability to access and use the Prerelease Software. The Prerelease Software provided to you may have usage tracking features that are turned on by default, and Your usage may be tracked on all services, mobile apps, and desktop applications offered by Adobe as Prerelease Software. “Personal Information” includes but is not limited to name, address, phone number, email address, IP address, or other personally identifiable information that identifies you.
3.3 Hosted Service. NOTE: USERS UNDER THE AGE OF 13 ARE NOT, UNDER ANY CIRCUMSTANCES, ELIGIBLE TO USE AN ADOBE HOSTED SERVICE. If Adobe grants you access to test the Prerelease Software as a Hosted Service, you acknowledge that access to and use of the Hosted Service may require (A) the exchange of information (e.g., electronic documents, data and user information that may include personal information) over the internet or other network connection and (B) the Hosted Service to store such information. You specifically grant Adobe the right to use such information in connection with your evaluation of the Prerelease Software. The Agreement applies to information received by Adobe directly from you and by a third-party Hosting Service Provider (“HSP”) that acts on Adobe’s behalf for purposes of providing or operating the Hosted Service. You acknowledge the HSP may use your information and share it with Adobe for the purposes of this Agreement.
3.4 Proprietary Rights. Except as expressly stated in this Agreement, you acquire no other licenses under any intellectual property or other proprietary rights of Adobe. You will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Prerelease Software.
3.5 Email Lists. You will not (A) solicit or otherwise email other Prerelease Software evaluators on any mail list used by Adobe to communicate information regarding the Prerelease Software evaluation or (B) disclose such mail list to any party.
3.6 Auto Subscription to Forum. Upon accessing a Prerelease Software program, you agree to be automatically subscribed to that Prerelease Software program’s forum. The forum will convey information related to the Prerelease Software program only. You may unsubscribe from all but the Announcement forum at any time. Specific programs may also allow you to unsubscribe from the Announcement forum.
3.7 Specific Limitations on Fonts. The fonts listed at https://www.adobe.com/products/type/font-licensing/restricted-fonts.html are included with the Prerelease Software only for purposes of operation of the Prerelease Software. You may not copy, move, activate or use, or allow any font management tool to copy, move, activate or use any of the listed fonts in or with any software application, program, or file other than the Prerelease Software.
3.8 Use of Your Content. By uploading Content created using the Prerelease Software to social media websites, you grant to Adobe a non-exclusive, irrevocable, worldwide, royalty-free right and license to use, reproduce, distribute, publicly display, and publicly perform your Content in Adobe’s marketing materials.
3.9 Third-Party Providers. If you use certain features of the Prerelease Software in conjunction with third-party data, products, services, and platforms, then you are responsible for complying with the terms and conditions and privacy policies required by such third-party providers, and all such use is at your own risk.
4. Evaluation Feedback.
You agree to provide reasonable Evaluation Feedback to Adobe during the Testing Period. You grant to Adobe a non-exclusive, irrevocable, worldwide, royalty-free right and license to use, reproduce, distribute, make derivative works based upon, publicly display, publicly perform, make, use, sell and export the Evaluation Feedback, including, without limitation, the right to sublicense such rights through multiple tiers of sublicensees. You have all rights necessary to provide the Evaluation Feedback to Adobe and acknowledge that Adobe is in no way obligated to incorporate, use or otherwise acknowledge any Evaluation Feedback that you have provided.
5. Use of Hosted Services.
While Adobe may store your Content during the Testing Period, Adobe has no obligation to store your Content, except to the extent necessary for Adobe to perform the applicable Prerelease Software program for the Hosted Service. In addition, Adobe has no responsibility or liability for the deletion or accuracy of your Content, including the failure to store, transmit, or receive transmission of your Content (whether or not processed by the Hosted Service), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Hosted Service. Adobe retains the right to create reasonable limits on the storage of your Content, including limits on file size, storage space, processing capacity, and similar limitations described in the web pages accompanying the Hosted Service, and as otherwise determined by Adobe in its sole discretion.
6.1 Monitoring Hosted Services and your Content. Adobe, in its sole discretion, may (but has no obligation to) monitor or review the Hosted Services and your Content at any time. Adobe has the right, in its sole discretion, to remove any of the Content if it violates the terms of this Agreement, any law, or is otherwise objectionable.
6.2 Monitoring User Activity. Although Adobe does not generally monitor user activity occurring in connection with the Hosted Services, if Adobe becomes aware of any possible violations by you of any provision of this Agreement, Adobe reserves the right to investigate such violations, and Adobe may, at its sole discretion, terminate immediately your license to access and use the Hosted Services, or change, alter or remove the Content, in whole or in part, without prior notice to you. If, as a result of such investigation, Adobe believes that criminal activity has occurred, Adobe reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Adobe is entitled, except to the extent prohibited by applicable law, to disclose any information, including your Content, in Adobe’s possession in connection with your use of the Hosted Services to (A) comply with applicable law, legal process or governmental request, (B) enforce the terms of this Agreement, (C) respond to any claims that your Content violates the rights of third parties, (D) respond to your requests for customer services, or (E) protect the rights, property or personal safety of Adobe, its users or the public, and law enforcement or other government officials, as Adobe in its sole discretion believes to be necessary or appropriate.
7. Confidential Information.
7.1 Non-Disclosure. You agree to hold the Confidential Information in strict confidence and not disclose it to any other party. You will treat the Confidential Information with the same degree of care as you treat your own confidential information, but in no event with less than reasonable care. Your obligations to protect the confidentiality of the Prerelease Software will terminate upon the first generally available commercial release of the Prerelease Software.
7.2 Provision for Authors. If you are authoring any written work related to the Prerelease Software, you may disclose and discuss Confidential Information with the publisher of the written work but only as necessary to facilitate and complete work on the book, article or other planned publication that makes use of, or includes Confidential Information, PROVIDED THAT said publisher has entered into a non-disclosure agreement directly with Adobe that identifies the written work and the Confidential Information.
7.3 Provision for Media Materials. Notwithstanding the foregoing confidentiality obligations, you may prepare and disseminate the Media Materials subject to the terms in this section 7.3. You will not disclose, or otherwise make public, any of the Media Materials prior to Adobe issuing a press release regarding the commercial availability of the applicable Prerelease Software or without first obtaining written permission from Adobe. To the extent that Adobe provides such permission to publish Media Materials prior to commercial availability of the Prerelease Software, the Media Materials must identify that the Media Materials concern a non-public “prerelease” or “beta” version of the Prerelease Software only. Once the Prerelease Software is publicly announced, your Media Materials may only review, critique or otherwise focus only on the publicly announced or commercially available version of the Prerelease Software, and not a beta or other prerelease version. You will not disclose at any time prior to public announcement of the Prerelease Software that you are participating in the Prerelease Software testing program without first obtaining written permission from Adobe. You will be responsible for any and all damages Adobe may incur resulting from breach of the foregoing obligations. For purposes of this section 7.3, “Media Materials” means those materials, in any format now known or later developed, intended to be made public regarding any Prerelease Software.
7.4 Serial Numbers, Login Identifiers, and Passwords. Serial numbers, login identifiers and passwords issued to you are intended for use by the designated individual and must not be shared with other individuals.
7.5 Access to Bug Databases. Your access to Adobe’s bug database is intended for your use solely to provide feedback to Adobe and you will not allow access by anyone else. Any resolution of reported bugs by you will be at Adobe’s sole discretion. You will not post any third-party confidential information to the bug database.
7.6 Standard of Care. You will treat the Confidential Information with the same degree of care as your own confidential information, but in no event, with less than commercially reasonable care.
8. No Warranty.
You are aware that the Prerelease Software is a prerelease version and may be prone to bugs and stability issues. Adobe provides the Prerelease Software to you “AS IS,” and Adobe disclaims any warranty or liability obligations to you of any kind. ADOBE MAKES NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE PRERELEASE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, SECURITY OR PRIVACY OF INFORMATION TRANSMITTED TO AND FROM THE HOSTED SERVICE, AVAILABILITY OF THE HOSTED SERVICE, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL ADOBE BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF ADOBE OR ANY COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRERELEASE SOFTWARE. The foregoing exclusions and limitations apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
9. Return of Prerelease Software.
Adobe retains all right, title and interest in all Confidential Information disclosed under this Agreement. You will delete all versions of the Prerelease Software no later than 30 days after Adobe’s first commercial shipment of the commercially released version, or at Adobe’s written request. Adobe may destroy all your Content at the end of the Prerelease Software program.
10. Export Restrictions.
You acknowledge that the Prerelease Software is subject to the export control laws and regulations of the U.S.A. and other countries. You will not export or re-export the Prerelease Software, any part, or any process or service that is the direct product of the Prerelease Software to any country, person or entity subject to U.S. export restrictions.
11. Term and Termination.
This Agreement will commence upon the Effective Date and continue unless terminated according to this section. Each party may terminate this Agreement without cause upon (15 days prior written notice to the other party. Finally, Adobe may terminate this Agreement immediately upon written notice if you fail to comply with any term of this Agreement. Subject to the provision of section 9, you must delete or destroy all Prerelease Software and Confidential Information immediately upon termination of this Agreement for any reason. Sections 1, 3.3, 3.4, 3.8, 4, 7, 9, 11, 12, and 13 survive any termination or expiration of this Agreement.
Any notice given under this Agreement must be in writing to the following addresses (or addresses notified in writing by either party): to Adobe: Adobe Inc., 345 Park Avenue, San Jose, California, 95110-2704, USA, Attention: General Counsel; and to you: at the email address that you provide to Adobe when joining the Prelease Software program.
13.1 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the United States of America and the State of California, without giving effect to its conflicts or choice of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for the purpose of any legal action, suit or proceeding brought by either of them in connection with this Agreement.
13.2 Assignment; Modification; Entire Agreement. You will not rent, lease, sell, sublicense, assign or otherwise transfer the Prerelease Software. You will not assign or transfer any rights or obligations under this Agreement without the prior written consent of Adobe and any such attempted assignment or transfer will be null and void. This Agreement may only be modified by a writing signed by both parties. This Agreement is the entire agreement between the parties concerning the Confidential Information (unless a separate non-disclosure agreement governs disclosure of such Confidential Information). This Agreement supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter.
13.3 Notice to Government End Users. The Prerelease Software and documentation provided hereunder 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 being 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. Unpublished-rights reserved under the copyright laws of the United States. Adobe Systems Incorporated, 345 Park Avenue, San Jose, CA 95110 2704, USA.
13.4 Injunctive Relief. You acknowledge and agree that due to the unique nature of Adobe’s Confidential Information, there will be no adequate remedy at law for any breach of your obligations under this Agreement. Any such breach will result in irreparable harm to Adobe and, upon any such breach or any threat thereof, Adobe will be entitled to seek appropriate equitable relief, including, but not limited to injunction in addition to whatever remedies Adobe may have at law. You will notify Adobe in writing immediately upon the occurrence of any such unauthorized release or other breach.