GENERAL TERMS (2014v1)
Contents
1. 7 4 2 C the use or access by the contractor is only for Customer s direct business purposes and D Customer remains liable for any act or omission of the contractor For clarification the rights granted under this section 4 Outsourcing and Third Party Access do not modify the License Metric or increase the number of licenses granted under this Agreement CONFIDENTIALITY 5 1 5 2 5 3 No Use or Disclosure Recipient will only use Confidential Information for the purposes of this Agreement and will not reproduce disseminate or disclose Confidential Information to any person except to its employees and authorized representatives i e temporary employees consultants and contractors who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this section 5 Confidentiality Recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity but never with less than reasonable care Required Disclosure Recipient may disclose Confidential Information A as approved in a writing signed by Discloser B as necessary to comply with any law or valid order of a court or other governmental body or C as necessary to establish the rights of either Party but only if in the case of section 5 2 B and section 5 2 C Recipient 1 promptly notifi2. 19 1 Personal Data Any Personal Data uploaded by Customer to the On demand Service for purposes of sharing with Meeting Attendees shall be considered Customer Content as described in the Exhibit for On demand Services and will not be considered Personal Data Customer will provide conspicuous notice regarding and obtain and maintain consent from Participants for i Customer s access use or disclosure of Personal Data of Participants and ii Adobe providing the tools for Customer to perform the actions described herein Customer will comply with all data privacy laws and rules applicable to Personal Data of Participants 19 2 Emails to Participants Emails related to the On demand Service are generally sent to Participants by Customer and not by Adobe If applicable Adobe may send emails to Participants in Customer s name as Customer s agent at Customer s request and on Customer s behalf Customer is solely responsible for such emails and contents thereof 19 3 Recordings THE ON DEMAND SERVICE MAY ALLOW CUSTOMER TO RECORD MEETINGS AND TO COLLECT AND UTILIZE AN ON DEMAND USER S PERSONAL DATA VOICE OR LIKENESS Customer is responsible for ensuring collection of all any required consents and compliance with all any applicable restrictions and laws PDM Adobe Connect On demand Hosted 2013v3 Page 3 of 4 Additional Definitions 20 1 20 2 20 3 20 4 20 5 20 6 20 7 20 8 20 9 20 10
3. Adobe Partner the payment terms are as agreed between Customer and the Adobe Partner 2 1 Payment Customer must pay the fees according to the payment terms in the Sales Order All invoices will only be delivered electronically to Customer Adobe may charge interest at a monthly rate equal to the lesser of 1 per month or the maximum rate permitted by applicable law on any overdue fees from the due date until the date the overdue amount plus applicable interest is paid in full Any fees that are unpaid as of the date of termination or expiration will be immediately due and payable Customer must provide a detailed remittance advice with each payment to Adobe via email to sjar adobe com no later than the date of the payment If Customer is not a publicly traded corporation upon Adobe s request Customer will provide the necessary financial documents to allow Adobe to ascertain the credit worthiness of Customer 2 2 Failure to Pay If Customer fails to pay any amount due under this Agreement within 15 days of the date of Adobe s notice of Customer s failure to pay Adobe may in its sole discretion terminate this Agreement or the applicable Sales Order or suspend or restrict provision of the Products and Services 2 3 Disputes If Customer believes in good faith that Adobe has incorrectly billed Customer Customer must contact Adobe in writing within 30 days of the invoice date specifying the error Unless Customer has correctly notified Adobe
4. Information H Customer means the entity identified in the Sales Order as Customer or otherwise identified in the Sales Order as the end user customer 1 Development Software means On premise Software licensed for use in a non production technical environment solely for internal development and testing authorized under the PDM J Distributed Code means HTML tags JavaScript code object code plugins SDKs APIs or other code provided by Adobe for use of the On demand Services or Managed Services K Documentation means A for On premise Software the technical user manual describing the features and functionalities of the applicable On premise Software as provided by Adobe and generally available in PDF format in the software or via www adobe com and B for On premise Software that does not have a technical user manual Managed Services or On demand Services the description of the software or service contained in the PDM applicable to the service or software Documentation does not include any forum or content contributed by any third party L Effective Date means the effective date stated in the Sales Order M Enterprise Licensing Terms is described in section 1 1 of these General Terms N Evaluation Software means On premise Software licensed for internal evaluation purposes in a non production environment O Indemnified Technology means On demand Ser
5. Sales Order is with an Adobe Partner at Customer s registered address A notice is taken to have been received by email 3 hours after the time sent as recorded on the device from which the sender sent the email unless the sender receives an automated message that the email has not been delivered Customer Responsibility Customer is responsible for all acts and omissions of its Affiliates or any person or entity that Customer is permitted under this Agreement to allow the use of or access to the Products and Services No Agency Nothing in this Agreement is intended to constitute a fiduciary relationship agency joint venture partnership or trust between the Parties No Party has authority to bind the other Party Third Party Beneficiaries Customer acknowledges and agrees that Adobe s licensors are third party beneficiaries of this Agreement with the right to enforce the obligations in this Agreement directly against Customer Customer s Purchase Order Any terms or conditions in Customer s purchase order or any other related documentation submitted by or on behalf of Customer to Adobe or any other party such as an Adobe Partner do not form part of this Agreement and are void unless otherwise expressly agreed in writing and signed by both Customer and Adobe Waiver Modification Neither Party s waiver of the breach of any provision constitutes a waiver of that provision in any other instance This Agreement may not be m
6. WARRANTIES To the maximum extent permitted by law and except for the express warranties in this Agreement Adobe provides the Products and Services on an as is basis Adobe its Affiliates and third party providers disclaim and make no other representation or warranty of any kind express implied or statutory including representations guarantees or warranties of merchantability fitness for a particular purpose title non infringement or accuracy Customer acknowledges that A neither Adobe its Affiliates nor its third party providers controls Customer equipment or the transfer of data over communications facilities including the Internet and B the Products and Services may be subject to limitations interruptions delays cancellations and other problems inherent in the use of the communications facilities including search engines and social media channels Adobe its Affiliates and its third party providers are not responsible for any interruptions delays cancellations delivery failures data loss content corruption packet loss or other damage resulting from these problems 10 LICENSE COMPLIANCE 10 1 10 2 10 3 10 4 Adobe may at its expense and no more than once every 12 months appoint its own personnel or an independent third party or both to verify that Customer s use installation or deployment of the Products and Services or other Adobe Technology used in conjunction with the Products and Services comply
7. as On demand Services in the applicable PDM U On premise Software means the software set out in the Sales Order and identified as On premise Software in the applicable PDM V Party means Adobe or Customer as applicable ADOBE GENERAL TERMS 2014v1 Page 2 of 8 W Products and Services means one or more of the following procured by Customer On premise Software On demand Services Managed Services or Professional Services as set out in the Sales Order X Product Descriptions and Metrics or PDM means the Product Descriptions and Metrics document that describes the Products and Services and the terms that apply to their use Y Professional Services means any consulting training implementation or technical services provided by Adobe to Customer as set out in the Adobe Professional Services section of the Sales Order Z Sales Order means the sales order form statement of work purchase authorization letter or other written document for the Products and Services that is either A executed between Adobe and Customer or B if no such documents are executed between Adobe and Customer and Customer is purchasing through an Adobe Partner executed between Customer and the Adobe Partner 2 PAYMENT OF FEES This section 2 Payment of Fees applies only if Customer orders the Products and Services directly from Adobe If Customer orders the Products and Services from an
8. content can be reported to Customer and removed in accordance with applicable laws regulations rules guidelines codes and industry best practices If Customer Content is hosted by Adobe and Customer becomes aware of a possible violation regarding any Customer Content that is uploaded to the On demand Service Customer must promptly notify Adobe Customer acknowledges that although the On demand Services may be used to modify or edit Customer Content to be posted or integrated into Customer Sites on Customer s behalf Customer A retains complete control over each Customer Site and all Customer Content and B remains fully responsible for ensuring that all Customer Sites used with the On demand Services and all Customer Content 1 comply with all applicable laws regulations rules guidelines and codes and 2 do not infringe any person s or entity s rights Customer acknowledges and agrees that nothing in this section prevents Adobe from suspending services to comply with an applicable court order ADOBE EXHIBIT FOR ON DEMAND SERVICES 2014v1 Page 3 of 4 8 LIMITED WARRANTY REMEDIES 8 1 Warranty Adobe warrants that the On demand Services as delivered to Customer will substantially conform to the applicable Documentation during the License Term to the extent the OnDemand Services constitute Indemnified Technology Customer must notify Adobe of a claim under this warranty within 30 days of the date on which the condition giving ri
9. detailed reports on attendee demographics registrations attendance and answers to both registration questions and in session polls 3 3 Service Limitations and Use Restrictions See section 1 3 Adobe Connect Webcast 4 1 License Metrics Adobe Connect Webcast may be licensed on a per event basis 4 2 Description Adobe Connect Webcast enables very large Meetings with up to 70 000 Participants which Participants can access via a web browser with the Adobe Flash Player Adobe Connect Webcast may also include a team of event professionals as well as registration and reporting 4 3 Service Limitations and Use Restrictions See section 1 3 Additional Terms 10 11 License to Documentation Customer may make and distribute copies of the Documentation for use by Users in connection with use of the On demand Service in accordance with this Agreement but no more than the amount reasonably necessary Any permitted copy of the Documentation must contain the same copyright and other proprietary notices that appear in the Documentation Use of Online Services The On demand Service may facilitate Customer s access to APIs or other websites maintained by Adobe or its affiliates or third parties offering services collectively Online Services Use of such Online Services may be subject to additional terms and conditions EXCEPT AS EXPRESSLY AGREED BY ADOBE OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT CUSTOMER S USE OF O
10. of the General Terms or those whom Customer is permitted under this Agreement to allow access to the On demand Services Personal Data is given the meaning under the relevant privacy or data protection laws relating to this term or any similar term such as personal information used in the laws or where no such laws apply means any information that by itself or when combined with other information such as telephone number e mail address precise real time GPS location and government issued identification number can be used by Adobe to identify a specific natural person Report means any graphical or numerical display of Customer Data that contains Adobe s proprietary design look and feel which is generated by the On demand Services Sensitive Personal Data is given the meaning under relevant privacy or data protection laws relating to this term or any similar term such as sensitive personal information used in the laws or where no such laws apply means financial information including financial account information sexual preferences medical or health information and personal information of children protected under any child protection laws such as the personal information defined under the US Children s Online Privacy Protection Act 2 LICENSE AND RESTRICTIONS 2 1 2 2 License Grant from Adobe A Subject to the terms of this Agreement Adobe grants Customer during the License Term a no
11. 6 of 8 is permitted under this Agreement Customer must pay Adobe s reasonable costs of conducting the verification in addition to paying the additional fees 11 GENERAL PROVISIONS 11 1 11 2 11 3 11 4 11 5 11 6 11 7 11 8 11 9 11 10 Assignment A Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer upon written notice to Adobe if the assignment does not expand the scope of the license granted in the Products and Services B Adobe may assign this Agreement or a part of it to its Affiliates or a surviving person under a merger or acquisition of Adobe or the assets of the business to which this Agreement relates upon written notice to Customer C Except as provided in this section 11 1 Assignment of these General Terms Customer may not assign voluntarily by operation of law or otherwise any rights or obligations under this Agreement without the prior written consent of Adobe Governing Law Venue This Agreement is governed by and construed under the laws of the state of California without regard to any conflict of law rules or principles and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods The Parties irrevocably submit to the exclusive jurisdiction of the courts of competent jurisdiction in the County of Santa Clara state of California provided however Adobe wi
12. Adobe 1 A GENERAL TERMS 2014v1 INTRODUCTION 1 1 1 2 Agreement and Order of Precedence A reference to Agreement means A B the Enterprise Licensing Terms consisting of 1 these General Terms 2 the applicable exhibits and 3 the applicable Product Descriptions and Metrics and the Sales Order If there is any inconsistency between any of the above parts the part listed later will prevail to the extent of the inconsistency over a part listed earlier Definitions A B C D E F G Adobe means one or both of the following 1 If the Products and Services are licensed in the United States Canada Mexico United States territories and possessions and United States military bases wherever located Adobe Systems Incorporated a Delaware corporation of 345 Park Avenue San Jose California 95110 USA 2 Ifthe Products and Services are licensed in all other countries Adobe Systems Software Ireland Limited an Irish company of 4 6 Riverwalk Citywest Business Campus Dublin 24 Ireland Adobe Partner means an entity that is appointed by Adobe to process orders from end users or a reseller of Products and Services to end users Adobe Technology means technology owned by Adobe or licensed to Adobe by a third party including the Products and Services Reports software tools algorithms software in source and object forms u
13. Concurrent User means an individual licensed on a concurrent basis that may attend or host a Meeting and is a type of On demand User Concurrent Learner means an individual learner that Customer licenses on a concurrent basis that may access training curriculum or courses and is a type of On demand User Meeting means an Adobe Connect meeting seminar or webcast as applicable Meeting Attendees means individuals who attend a meeting telephone conference seminar or webcast enabled by the On demand Service and is a type of On demand User Named Events Manager means an individual that has the ability to manage advanced registration for Adobe Connect events branded event pages additional email options and absentee attendee reporting for meetings courses curriculums presentations and other content A Named Events Manager is a type of On demand User and must be an individual not a group or generic login and a Named Events Manager license cannot be shared between more than one individual A Named Events Manager license may be reassigned from one individual to another only if the employment or independent contractor relationship of a licensed individual terminates else written permission from Adobe is required Named Host means an individual that has the ability to host a Meeting with up to 100 total Meeting Attendees A Named Host is a type of On demand User and may create an unlimited number of Meeting roo
14. NLINE SERVICES IS AT ITS OWN RISK Third Party Materials Customer acknowledges and agrees that by a accessing or using the On demand Service Customer may be exposed to materials from third parties that are offensive indecent or otherwise objectionable Customer may report any violations of this Agreement to Adobe customer service VOIP Customer may not use the On demand Service where Voice Over IP is prohibited by local laws or regulations License Restrictions Customer may not i attempt to gain unauthorized access to service materials other accounts computer systems or networks connected to any Adobe server or to the On demand Service through hacking password mining or any other means ii obtain or attempt to obtain any materials or information through any means not intentionally made available through the On demand Service iii engage in any systematic extraction of data or data fields including email addresses except as may be reasonably contemplated through the normal use of the On demand Service iv use the On demand Service for malicious injection of dial tone multi frequency commands or v upload record publish link to or otherwise transmit or distribute Customer Content that would breach Customer s representations and warranties regarding Customer Content as described in Section 11 Representations and Warranties Regarding Customer Content Representations and Warranties Regarding Customer Content Customer repr
15. acy or privacy or data protection laws guidelines regulations codes or rules or C any Customer Data or Customer Content Customer will indemnify Adobe its Affiliates and directors employees or agents of Adobe or its Affiliates and third party providers against their Losses directly attributable to the foregoing A B or C in this section and are either awarded by a court of competent jurisdiction against Adobe assessed by a government agency or regulator or agreed to in a written settlement agreement signed by Customer The Limitation of Liability provision in the General Terms does not apply to Customer s liability or obligations under this section 6 2 Customer will have no liability for any Claim under section 6 1 of this On demand Exhibit if Adobe fails to A notify Customer in writing of the Claim promptly upon the earlier of learning of or receiving a notice of it to the extent that Customer is prejudiced by this failure B provide Customer with reasonable assistance requested by Customer for the defense or settlement as applicable of the Claim C provide Customer with the exclusive right to control and the authority to settle the Claim Adobe may participate in the matter at Adobe s own expense or D refrain from making admissions about the Claim without Customer s prior written consent CONTENT MONITORING Customer must implement a process through which infringing abusive or otherwise unlawful
16. e of the Products and Services B the Enterprise Licensing Terms or any part of it prevails over any inconsistent provisions in the Partner Sales Order and C the Adobe Partner is solely responsible for any variations or inconsistencies between the Partner Sales Order and the order between the Adobe Partner and Adobe for the transaction If Customer does not accept the terms of this Agreement then Customer must not use or must immediately cease using the relevant Products and Services U S Government Licensing For US Government end users Customer acknowledges that Products and Services are Commercial Item s as that term is defined at 48 C F R section 2 101 consisting of Commercial Computer Software and Commercial Computer Software Documentation as the terms are used in 48 C F R section 12 212 or 48 C F R section 227 7202 as applicable Customer agrees consistent with 48 C F R section 12 212 or 48 C F R sections 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 GENERAL TERMS 2014v1 Page 8 of 8 A Adobe EXHIBIT FOR ON DEMAND SERVICES 2014v1 Exhibit for On demand S
17. ervices in addition to the General Terms and any applicable PDM applies to any On demand Services offering licensed by the Customer 1 DEFINITIONS 1 1 1 2 1 3 1 4 1 5 1 6 1 7 Customer Content means any information or material such as audio video text or images that is provided to Adobe by Customer or on Customer s behalf in connection with Customer s use of the On demand Services for content delivery targeted advertising or indexing Customer Data means A any data or information collected from the Customer Site or Customer s search engine providers via the Distributed Code or B any data or information that Customer imports into the On demand Service from its internal data stores or other sources not supplied by Adobe Customer Site means any current or future website or application A that is owned and operated by Customer or is hosted or operated by a third party or Adobe on Customer s behalf B that contains Customer s brand or logo and C that contains a privacy policy or data collection practices that Customer maintains and controls or that complies with applicable privacy or data protection laws that mandate the privacy disclosures and data collection practices for such website or application On demand User means unless otherwise described in this Agreement Customer s employees third party contractors described in the Outsourcing and Third party Access section
18. es Discloser of the details of the required disclosure and 2 gives Discloser all assistance reasonably required by Discloser to enable Discloser to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence Responsibility for Representatives and Affiliates Recipient is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the Recipient under this section 5 Confidentiality TERM AND TERMINATION 6 1 6 2 6 3 Term This Agreement applies to each Product and Service from the Effective Date until the expiration of the applicable License Term or the term for Professional Services unless terminated earlier under this Agreement Termination for Cause A Material Breach by Either Party If either Party commits a material breach of this Agreement the non breaching Party may give written notice describing the nature and basis of the breach to the breaching Party If the breach is not cured within 30 days of the notice date the non breaching Party may immediately terminate this Agreement in whole or in part B Breach of Confidentiality Provisions If a Party is in breach of any confidentiality provisions of this Agreement the non breaching Party may terminate this Agreement in whole or in part immediately by giving the breaching Party written notice of the breach C Other Breaches Adobe may terminate t
19. escription Adobe Connect Meeting enables Meetings that Participants can access via a web browser with the Adobe Flash Player It provides support for sharing rich content including streaming audio video and software simulations and it enables multi person video conferences Service Limitations and Use Restrictions A Client Software Customer may use the Distributed Code solely in conjunction with the On demand B C Service If Customer has licensed Adobe Presenter in connection with access and use of the On demand Service as indicated on the Sales Order then end user license agreement accompanying such software shall govern its use Customer Content Certain features of the On demand Service enables Customer to specify the level at which such On demand Service restrict access to Customer Content Customer is solely responsible for applying the appropriate level of access to Customer Content Customer acknowledges that the On demand Service is automated and that Adobe will not access any Customer Content except as reasonably necessary to perform the On demand Service such as i respond to support requests ii detect prevent or otherwise address fraud security or technical issues or iii as expressly permitted under this Agreement Storage Customer Content may be stored on Adobe s servers at Customer s request as necessary for Adobe to provide the On demand Service Customer is solely responsible for making and keep
20. esents and warrants that i Customer is the owner licensor or authorized user of all Customer Content ii Customer will not upload record publish link to or otherwise transmit or distribute Customer Content that a incites assists or otherwise encourages violence or any illegal activities b infringes or violates the intellectual property rights of any third party or Adobe or any rights of publicity or privacy of any party c is materially false misleading or inaccurate d promotes or comprises objectionable or unlawful content or activity e is harmful to minors f contains any viruses or programs that may damage detrimentally interfere with surreptitiously intercept or expropriate any system data Personal Data or property of another or g violates any law statute ordinance or regulation PDM Adobe Connect On demand Hosted 2013v3 Page 2 of 4 12 13 14 15 16 17 18 19 Audio Conferencing Customer represents and warrants that it has the right to use the particular audio conferencing service Customer uses in conjunction with the On demand Service Limitations The On demand Service is not designed or licensed for use in hazardous environments requiring fail safe controls Adobe its affiliates suppliers licensors and resellers specifically disclaim any express or implied warranty of fitness for such purposes Investigations At any time Adobe becomes aware of any possible vio
21. feature a privacy policy or other notice displayed conspicuously from the primary interface that A discloses Customer s privacy practices B identifies the collection via cookies web beacons and similar technologies where applicable and use of information gathered in connection with the On demand Services and C offers individuals an opportunity to opt out of or opt in if applicable law requires the collection or use of data gathered in connection with the On demand Services Adobe reserves the right to recommend to Customer that it modify its privacy disclosures to address updates or changes to applicable law industry self regulation or best practices and Customer agrees to undertake a good faith effort to address such recommendation s 5 2 Sensitive Personal Data Customer must not use the On demand Services to collect process or store any Sensitive Personal Data of its employees customers partners site visitors or any third party Customer must not transmit disclose or make available Sensitive Personal Data to Adobe or third party providers CLAIMS 6 1 Customer will defend any third party Claims brought against Adobe its Affiliates and directors employees or agents of Adobe or its Affiliates and third party providers that arise in connection with A Customer s breach of any of its privacy or content monitoring obligations B any violation of Customer s privacy policy third party s rights of priv
22. his Agreement in whole or in part immediately upon written notice to Customer if Customer breaches section 7 2 No Modifications of these General Terms Survival The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration including the provisions that deal with the following subject matters definitions payment obligations confidentiality term and termination effect of termination intellectual property license compliance limitation of liability privacy content monitoring and the General Provisions section in these General Terms INTELLECTUAL PROPERTY ADOBE GENERAL TERMS 2014v1 Page 4 of 8 7 1 Ownership Adobe and its licensors own the Adobe Technology 7 2 No Modifications Customer must not modify create derivative works of adapt translate reverse engineer decompile disassemble or otherwise attempt to discover the source code in any Adobe Technology These restrictions will not apply to the extent they limit any non waivable right Customer may enjoy under applicable law 8 INDEMNIFICATION 8 1 Adobe s Duty to Indemnify Adobe will defend any third party Claim against Customer during the License Term to the extent the Claim alleges that A the Indemnified Technology directly infringes the third party s patent copyright or trademark or that B Adobe has misappropriated the third party s trade secret Infri
23. ial Use of Service If Customer has subscribed to the On demand Service on a trial basis then Customer s use the On demand Service is subject to terms of the Agreement and is limited as provided in the email communication from Adobe or as provided in web pages describing trial use of the On demand Service This trial On demand Service is subject to change and termination at Adobe s sole discretion Third Party Software Notices In order to accommodate public demand for software that is interoperable with other products and platforms Adobe like other commercial software publishers has designed its products to comply with public standards and has incorporated code created and licensed by third parties into its products The creators of these public standards and publicly available code as well as other third party licensors require that certain notices and terms and conditions be passed through to the end users of the software Such required third party software notices and or additional terms and conditions are located at www adobe com products eula third party index html or a successor website thereto and are made a part of and incorporated by reference into this Agreement Customer Sites For purposes of this PDM references to Customer Sites in the General Terms and On demand Exhibit will not apply Privacy The following will apply in place of the Privacy section of the On demand Exhibit 2013v3 for the On demand Services in this PDM
24. ing backup copies of Customer Content Adobe shall use commercially reasonable efforts to block the uploading of Customer Content to the On demand Service that contains viruses detected by using industry standard virus detection software Except as provided herein Adobe has no responsibility or liability for the deletion or accuracy of Customer Content the failure to store transmit or receive transmission of Customer Content whether or not processed by the On demand Service or the security privacy storage or transmission of other communications originating with or involving use of the On demand Service 2 Adobe Connect Training 2 1 2 2 2 3 License Metrics Adobe Connect Training may be licensed under the Concurrent Learner licensing metrics Description Adobe Connect Training provides course and curriculum management capabilities This includes the capability to track On demand User completion and course results using a dashboard or view reports for individual learners Service Limitations and Use Restrictions See section 1 3 PDM Adobe Connect On demand 2014v1 Page 1of4 Adobe Connect Events 3 1 License Metrics Adobe Connect Meeting may be licensed under the Named Events Manager licensing metrics 3 2 Description Adobe Connect Events manages On demand User registration qualification notification automatic email reminders and tracking for Meetings and presentations Adobe Connect Events module can provide
25. lations by Customer of this Agreement Adobe reserves the right to investigate such violations and at its sole discretion terminate immediately Customer s license to the On demand Service or remove Customer Content without prior notice to Customer If Adobe believes that criminal activity has occurred Adobe reserves the right to refer the matter to and to cooperate with any law enforcement authorities Adobe is entitled except to the extent prohibited by applicable law to disclose any information including Personal Data about Customer in Adobe s possession in connection with Customer s use of the On demand Service to law enforcement or other government officials Adobe will provide Customer with prior notice of any such disclosure where legally permissible On demand Service Termination or Suspension Notwithstanding anything else set forth in the Agreement Adobe may at any time and upon written notice to Customer immediately terminate suspend or restrict access to the On demand Service if Adobe determines in its sole judgment that terminating suspending or restricting access to the On demand Service is advisable for material security risks to protect Adobe from liability or for the continued normal and efficient operation of the On demand Service Upon termination of the On demand Service Adobe reserves the right to delete any data files associated with Customer Content Personal Data or Customer s use of the On demand Service Tr
26. ll have the right to pursue claims against Customer in any other jurisdiction worldwide to enforce its rights under this Agreement or to enforce its intellectual property rights Force Majeure Neither Party is liable for failure to perform its obligations under this Agreement except for any payment obligations to the extent that performance is delayed prevented restricted or interfered with as a result of any causes beyond its reasonable control including acts of God terrorism labor action fire flood earthquake failure of third party providers denial of service attacks and other malicious conduct utility failures power outages or governmental acts orders or restrictions Injunctive Relief Actual or threatened breach of certain sections of this Agreement such as without limitation provisions on intellectual property including ownership license privacy data protection and confidentiality may cause immediate irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach Notices Any notice given under this Agreement must be in writing by email to the following addresses or addresses notified in writing by either Party A to Adobe ContractNotifications adobe com and B to Customer at Customer s email address stated on the Sales Order or if Customer s
27. ms however the Named Host can only use one room at any one time and rooms cannot be accessed unless the Named Host is present A Named Host must be an individual not a group or generic login and a Named Host license cannot be shared between more than one individual A Named Host license may be reassigned from one individual to another only if the employment or independent contractor relationship of a licensed individual terminates else written permission from Adobe is required On demand Service means with respect to this PDM the Adobe Connect On demand Hosted service Participant means a third party including a Meeting Attendee who interacts with the On demand Service as a result of such party s relationship with or connection to Customer and is a type of On demand User Seminar Host means an individual employed or otherwise hired by Customer to administer the Seminar Room on behalf of Customer and is a type of On demand User Seminar Room means a Meeting room with a size that is set based on the number of seats purchased under that Seminar Room license Customer may create an unlimited number of rooms but only one Meeting can take place at any given time for each Seminar Room license purchased A designated Seminar Host must be present in the room for the room to be accessed PDM Adobe Connect On demand Hosted 2013v3 Page 4 of 4
28. n transferable non exclusive and worldwide license to 1 permit On demand Users to access the On demand Services through the applicable interfaces 2 install implement and use the Distributed Code on Customer Sites Customer s Computers or the On demand Users Computers as applicable 3 use and distribute Reports internally within Customer s business solely in connection with Customer s use of the On demand Services for its internal operations Nothing in this Agreement grants Customer any express or implied license to use distribute modify copy link or translate the Distributed Code other than for Customer s use of the On demand Services License Restrictions ADOBE EXHIBIT FOR ON DEMAND SERVICES 2014v1 Page 1 of 4 5 2 3 2 4 Except as permitted under this Agreement Customer must not A copy use reproduce distribute republish download display post or transmit the On demand Services Distributed Code or Reports B sell rent lease host or sub license the On demand Services the Distributed Code or the Reports C make Customer s login IDs or passwords available to any third party D use modify copy link translate or reverse engineer the Distributed Code to enhance or enable the use of any third party product or service E remove obscure or alter any proprietary notices associated with the On demand Services Distributed Code or Reports or F use the On demand Se
29. ndemnification are Customer s sole and exclusive remedies and Adobe s sole liability regarding the subject matter giving rise to any Claim that the Products and Services infringe or misappropriate any third party s intellectual property rights 9 LIMITATION OF LIABILITY 9 1 9 2 LIMITATION OF DAMAGES A Inno event is either Party liable for any of the following arising out of or concerning this Agreement however caused special indirect moral consequential incidental punitive or exemplary damages loss of profits use or revenue business interruption or loss or corruption of data B The maximum aggregate liability of each Party for each and all Claims individually and together under or relating to this Agreement or its subject matter is limited to an amount equal to the aggregate of the fees that must be paid by Customer under this Agreement during the 12 months before the initial Claim C Sections 9 1 A and 9 1 B Limitation of Liability of these General Terms 1 apply regardless of the form or source of Claim or Loss whether the Claim or Loss was foreseeable and whether a Party has been advised of the possibility of the Claim or Loss and 2 do not apply in any breach of any confidentiality provisions of this Agreement Customer s use of Adobe Technology beyond the scope of any license granted under this Agreement or Customer s failure to pay any amounts owing to Adobe under this Agreement IMPLIED
30. ngement Claim Adobe will pay Customer the Losses including reasonable legal fees that are directly attributable to an Infringement Claim and are either finally awarded by a court of competent jurisdiction against Customer or agreed to in a written settlement agreement signed by Adobe 8 2 Adobe s Response In the defense or settlement of any Infringement Claim Adobe may at its sole option and expense A procure for Customer a license to continue using the Indemnified Technology under the terms of this Agreement B replace or modify the allegedly infringing Indemnified Technology to avoid the infringement or C terminate Customer s license and access to the Indemnified Technology or its infringing part and refund 1 in the case of On demand Services Managed Services or On premise Software licensed for a limited term any prepaid unused fees as of the date of termination or 2 in the case of On premise Software licensed for a perpetual term an amount equal to the pro rata value of the On premise Software calculated by depreciating the fee paid by Customer for the On premise Software on a straight line basis using a useful life of 36 months from the date of initial delivery of the On premise Software but only if Customer purges all copies of the On premise Software and related materials from all computer systems on which it was stored and returns to Adobe all physical copies of the On premise Software and related ma
31. nment or software applications Confidential Information means a Discloser s or Discloser s Affiliates non public information including copies summaries and extracts i that is identified in writing as confidential at the time of disclosure whether in printed textual graphic or electronic form or ii that is disclosed in non tangible form identified as confidential at the time of disclosure summarized in a writing labeled as confidential and delivered to Recipient or Recipient s Affiliate as applicable within 15 days after disclosure The Party disclosing Confidential Information is referred to as Discloser and the Party ADOBE GENERAL TERMS 2014v1 Page 1 of 8 receiving Confidential Information is referred to as Recipient Confidential Information does not include information that 1 is or becomes generally publicly available at or after the time of disclosure through no fault of either Recipient or Recipient s Affiliate 2 was known to Recipient or Recipient s Affiliate as applicable free of any confidentiality obligations before its disclosure by either Discloser or Discloser s Affiliate 3 becomes known to Recipient or Recipient s Affiliate as applicable free of any confidentiality obligations from a source other than either Discloser or Discloser s Affiliate or 4 is independently developed by either Recipient or Recipient s Affiliate without use of Confidential
32. odified nor any rights under it waived in whole or in part except in writing signed by the Parties ADOBE GENERAL TERMS 2014v1 Page 7 of 8 11 11 11 12 11 13 11 14 11 15 11 16 Entire Agreement This Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements understandings proposals discussions negotiations representations and warranties both written and oral regarding the subject matter Counterpart This Agreement or a component may be executed in one or more counterparts each of which constitutes an original and all of which taken together constitutes the same agreement Each Party may sign this Agreement using an electronic or handwritten signature which are of equal effect whether on original or electronic copies Severability If any term of this Agreement is held invalid or unenforceable for any reason the remainder of the term and this Agreement will continue in full force and effect Export Rules Customer acknowledges that the Products and Services may be subject to the U S Export Administration Regulations and other export laws and regulations and Customer will comply with them Adobe Partner Transactions If Customer orders Products and Services from an Adobe Partner under a Sales Order with the Adobe Partner Partner Sales Order notwithstanding anything to the contrary A the terms of this Agreement apply to Customer s us
33. of the dispute Customer must reimburse Adobe s reasonable collection costs Customer must pay the undisputed portions of Adobe s invoice as required by this Agreement 2 4 Taxes Prices do not include applicable taxes The following applies only if Customer orders the Products and Services directly from Adobe Adobe will invoice Customer for any applicable taxes and Customer must pay these taxes Where applicable Customer must provide a tax exemption claim to Adobe before placing an order 3 DELIVERY On premise Software is deemed to be delivered and accepted by Customer on the earlier of the date the On premise Software is made available for electronic download or if applicable the date that Adobe ships the tangible media e g CD or DVD containing the On premise Software FOB origin On demand Services or Managed Services are deemed to be delivered and accepted on the License Term start date 4 OUTSOURCING AND THIRD PARTY ACCESS 4 1 Customer may allow a third party contractor to use and access the Products and Services solely to operate the Products and Services on Customer s behalf but only if A upon Adobe s request Customer provides Adobe with written notice B Customer ensures that 1 the contractor complies with the terms of this Agreement on the same basis as the terms apply to Customer and 2 Adobe has the right to enforce this Agreement directly against the contractor ADOBE GENERAL TERMS 2014v1 Page 3 of 8
34. pe information OWNERSHIP Custome r owns the Customer Data and Customer Content subject to Adobe s underlying intellectual property in the Adobe Technology Adobe owns the Adobe Technology TERMINATION OR EXPIRATION 4 1 4 2 PRIVACY Upon termination or expiration of this Agreement or any License Term for On demand Services A the license and associated rights for On demand Services granted to Customer under this Agreement will immediately terminate B Customer must at its expense 1 remove and delete all copies of the Distributed Code and 2 remove all references and links to the On demand Services from the Customer Sites and C Customer Data and Customer Content stored within the On demand Services will be available to Customer for 30 days after the termination or expiration in the same format then available within the reporting interface s Any continued use of the Distributed Code or On demand Services after termination or expiration of this Agreement constitutes a breach of this Agreement and Customer will be liable for any fees for any On demand Services that remain active after the termination or expiration These fees will be invoiced to Customer at the rate set out in the Sales Order ADOBE EXHIBIT FOR ON DEMAND SERVICES 2014v1 Page 2 of 4 6 5 1 Privacy Policy For Customer Site s on which Customer Data is collected or Customer Content is served Customer agrees that the Customer Site s will
35. rvices Distributed Code or Reports in violation of any applicable law including use on websites that contain unlawful material such as material that violates any obscenity defamation harassment privacy or intellectual property laws On demand User IDs Unless otherwise specifically limited in the Sales Order On demand User passwords and login IDs for the On demand Services will be provided to Customer in an amount mutually agreed upon by Customer and Adobe Customer must take steps to prevent unauthorized access to its login IDs and passwords and must not allow the use of the same login ID simultaneously by two or more On demand Users License Grant from Customer A During the License Term Customer grants Adobe and its Affiliates a non exclusive worldwide royalty free license to use copy transmit sub license index store and display Customer Data and Customer Content solely to the extent necessary to provide the On demand Services and Reports to Customer and enforce its rights under this Agreement B Additionally Customer grants Adobe and its Affiliates a non exclusive perpetual worldwide and royalty free license to use copy transmit sub license index model aggregate including combination with similar data of other customers of Adobe or its Affiliates publish display and distribute any anonymous information derived from Customer Data such as but not limited to web browser screen resolution and mobile device ty
36. se to the claim first appeared 8 2 Sole and Exclusive Remedies To the extent permitted by law Customer s sole and exclusive remedy and Adobe s sole liability arising out of or in connection with a breach of the warranty in section 8 1 Limited Warranty Remedies of this Exhibit is limited to A a replacement of the Distributed Code as applicable or B if replacement is not commercially reasonable a termination of the applicable On demand Service and a refund of any pre paid unused fees for the applicable On demand Service 9 DATA RETENTION Customer Data may be permanently deleted from Adobe s servers 25 months from the date of its collection or receipt ADOBE EXHIBIT FOR ON DEMAND SERVICES 2014v1 Page 4 of 4 Adobe PDM Adobe Connect On demand 2014v1 The Services described in this PDM are On demand Services and are governed by the terms of the General Terms the On demandOn demand Exhibit this PDM and the applicable Sales Order Adobe Connect On demand Service Description Adobe Connect On demand allows for online collaboration using a Web browser Adobe Flash and an internet connection in a multi tenant environment Adobe Connect On demand may be licensed by Customer under one or more of the following modules 1 Adobe Connect Meeting 1 1 1 2 1 3 License Metrics Adobe Connect Meeting may be licensed under the Named Host Concurrent User or Seminar Room licensing metrics D
37. ser interface designs architecture toolkits plug ins objects and Documentation network designs processes know how methodologies trade secrets and any related intellectual property rights throughout the world and suggestions made to Adobe that are incorporated into any of the foregoing which will be deemed assigned to Adobe as well as any of the derivatives modifications improvements enhancements or extensions of the above whenever developed Affiliate means for a Party any other entity that controls is controlled by or under common control with the Party For the purposes of this definition 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 Claim means a claim action proceeding or demand made against a person or entity however arising and whether present or future fixed or unascertained actual threatened or contingent Computer means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions consistent with the configuration recommendations in the Documentation including desktop computers laptops tablets mobile devices telecommunication devices Internet connected devices and hardware products capable of operating a wide variety of productivity entertai
38. terials 8 3 Conditions to Indemnification Adobe will have no liability for any Infringement Claim A that arises from any 1 use of the Indemnified Technology in violation of this Agreement 2 modification of the Indemnified Technology by anyone other than Adobe or a party authorized in writing by Adobe to modify specific code within the Indemnified Technology 3 failure by Customer to install the latest updated version of the Indemnified Technology as requested by Adobe to avoid infringement or 4 third party products services hardware software or other materials or combination of these with Indemnified Technology if the Indemnified Technology would not be infringing without this combination or B if Customer fails to 1 notify Adobe in writing of the Infringement Claim promptly upon the earlier of learning of or receiving a notice of it to the extent that Adobe is prejudiced by this failure 2 provide Adobe with reasonable assistance requested by Adobe for the defense or settlement as applicable of the Infringement Claim 3 provide Adobe with the exclusive right to control and the authority to settle the Infringement Claim Customer may participate in the matter at Customer s own expense or 4 refrain from making admissions about the Infringement Claim without Adobe s prior written consent ADOBE GENERAL TERMS 2014v1 Page 5 of 8 8 4 Sole and Exclusive Remedy The remedies in this section 8 I
39. vices Managed Services or On premise Software or both as applicable paid for by Customer but excludes any sample code SDK open source trial or Evaluation Software pre release software not for resale software and software provided free of charge P License Metric means each of the per unit metrics specified by Adobe concerning the licensed quantities in the Sales Order to describe the scope of Customer s license to use the Products and Services Q License Term means the duration of the license granted for the On demand Services Managed Services or On premise Software as applicable as specified in the Sales Order or any shorter term arising from a termination of this Agreement R Loss means any damage loss cost expense or liability incurred by a person or entity S Managed Services means the enterprise solutions hosted by or on behalf of Adobe and Distributed Code where applicable in a single tenant environment as set out in the Sales Order and identified as Managed Services in the applicable PDM Adobe may use virtualization technologies at different layers to mimic the concept of dedicated resources e g processing networking message center servers etc to create a single tenant environment for Customer T On demand Services means the enterprise solutions hosted by or on behalf of Adobe and Distributed Code where applicable as set out in the Sales Order and identified
40. with the terms of this Agreement For On premise Software and any Distributed Code the verification will require Customer to provide within 30 days of request A raw data from a software asset management tool of all On premise Software and Distributed Code installed or deployed by or at the direction of Customer including installation or deployment on servers owned by Customer or provided by third parties B all valid purchase documentation for all On premise Software and Distributed Code and C any information reasonably requested by Adobe Any verification may include an onsite audit conducted at Customer s relevant places of business upon 7 days prior notice during regular business hours and will not unreasonably interfere with Customer s business activities If the verification shows that Customer its Affiliates or third party contractors of Customer or its Affiliates are deploying installing or using the Products and Services or other Adobe Technology used in conjunction with the Products and Services A beyond the quantity that was legitimately licensed or B in any way not permitted under this Agreement so that additional fees apply Customer must pay the additional license fees and any applicable related maintenance and support fees based on Adobe s then current country specific list price within 30 days of invoice date If use deployment or installation exceeds 5 of that which ADOBE GENERAL TERMS 2014v1 Page
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