ADOBE SYSTEMS INCORPORATED
Adobe Flash Lite 3.0 Developer Edition
Pre-Release Software License Agreement
NOTICE TO USER: THIS PRE-RELEASE LICENSE AGREEMENT GOVERNS INSTALLATION AND USE OF THE ADOBE SOFTWARE DESCRIBED HEREIN BY LICENSEES OF SUCH SOFTWARE. BY DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE, LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT INSTALLS AND USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT INSTALLS OR USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.
THIS AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE TO WHICH LICENSEE HAS OBTAINED A VALID LICENSE REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
LICENSEE’S RIGHTS UNDER THIS AGREEMENT MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS IN A SEPARATE WRITTEN AGREEMENT WITH ADOBE THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
1. Definitions
1.1 "Adobe" means Adobe Systems Incorporated, a Delaware corporation, 345 Park Avenue, San Jose, California 95110, if subsection 9(a) of this Agreement applies; otherwise it means Adobe Systems Software Ireland Limited, Unit 3100, Lake Drive, City West Campus, Saggart D24, Dublin, Republic of Ireland, a company organized under the laws of Ireland and an affiliate and licensee of Adobe Systems Incorporated.
1.2 "Documentation" means the user manuals and/or technical publications as applicable, relating to installation, use and administration of the Software.
1.3 "Software" means the pre-release version of the software program(s) for developer use only, including all Documentation and other materials provided by Adobe to Licensee under this Agreement. The term "Software Product" may also be used to indicate a particular product or version of a product, and otherwise has the same meaning as Software.
2. License. Subject to the terms and conditions of this Agreement, Licensee is hereby granted a personal, limited, nonexclusive, non-transferable and royalty-free license to use the Software solely for the purpose of evaluating content developed for the Software. Licensee may install and use the Software on a on a single handset running a Symbian Series 60 v3 operating system. Except as expressly provided herein, you may not use the Software on any other non-PC product or any device, or on any other operating system, including, but not limited to, mobile devices, internet appliances, set top boxes (STB), handhelds, PDAs, phones, web pads, tablets, game consoles, TVs, DVDs, gaming machines, home automation systems, kiosks or any other consumer electronics devices or mobile/cable/satellite/television or closed system based service.
2.1 Documentation. Licensee may make copies of the Documentation solely in connection with use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.
2.2 Restrictions
2.2.1 No Distribution. Licensee shall neither reproduce nor distribute copies of the Software, or electronically transfer the Software from one device to another or over a network.
2.2.2 No Modifications, No Reverse Engineering. Licensee shall not modify, port, adapt or translate the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Licensee’s jurisdiction give Licensee the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Licensee must first request such information from Adobe and Adobe may, in its discretion, either provide such information to Licensee or impose reasonable conditions, including a reasonable fee, on such use of the source code to ensure that Adobe’s and its suppliers’ proprietary rights in the source code for the Software are protected.
2.2.2 No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Licensee as a single product to be used as a single product on devices and platforms as permitted herein. Licensee is not required to use all component parts of the Software, but Licensee shall not unbundle the component parts of the Software for use on different devices. Licensee shall not unbundle or repackage the Software for any purpose.
2.2.3 No Transfer. Licensee shall not sublicense, assign or transfer the Software or Licensee’s rights in the Software, or authorize any portion of the Software to be copied onto or accessed from another individual’s or entity’s devices. A license for the Software may not be shared, installed or used concurrently on different devices.
2.2.4 Prohibited Use. Except as expressly authorized under this Agreement, Licensee is prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; and (c) providing use of the Software in a computer service business, third party outsourcing facility or service, service bureau arrangement, network, or time sharing basis.
2.2.5 Export Rules. Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as an export controlled item under the Export Laws, Licensee represents and warrants that Licensee is not a citizen of, or located within, an embargoed or otherwise restricted nation (including Iran, Iraq, Syria, Sudan, Libya, Cuba and North Korea) and that Licensee is not otherwise prohibited under the Export Laws from receiving the Software. All rights to install and use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.
3. Intellectual Property Rights. The Software and any copies that Licensee is authorized by Adobe to make are the intellectual property of and are owned by Adobe Systems Incorporated and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Adobe Systems Incorporated and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by Adobe.
4. No Warranty. Licensee acknowledges that the Software is a pre-release version, do not represent final Software from Adobe, and may contain bugs, errors and other problems that could cause system failures. Consequently, the Software is provided to Licensee "AS IS," and Adobe disclaims any warranty or liability obligations to Licensee of any kind. Licensee acknowledges that Adobe has not publicly announced the availability of the Software, that Adobe has not promised or guaranteed to Licensee that such Software will be announced or made available to anyone in the future, that Adobe has no express or implied obligation to Licensee to announce or introduce the Software and that Adobe may not introduce a Software similar or compatible with the Software. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Software or any Software associated with the Software is done entirely at Licensee’s own risk. Licensee acknowledges that ADOBE MAKES NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL ADOBE BE LIABLE TO LICENSEE 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. LICENSEE BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. The foregoing limitations, exclusions and limitations shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
5. Return of Software and Materials. Adobe shall retain all right, title and interest in all Software and any associated documents, Confidential Information in tangible form, drawings, models, apparatus, sketches, designs and lists (collectively the "Materials"). Licensee shall return such Materials to Adobe promptly at Adobe’s request, together with any copies thereof. Upon receipt of a publicly released version of Software, or a final version if there is no publicly released version, Licensee agrees to destroy all pre-release versions of such Software including all associated Materials and to abide by the terms of the End User License Agreement or such other agreement as may be negotiated between the parties. If Licensee does not receive a publicly released version or a final version, Licensee agrees to destroy all pre-release versions of such Software and associated Materials no later than thirty (30) days after Adobe’s first commercial shipment of the publicly released version or otherwise at Adobe’s request.
6. Term and Termination. This Agreement shall commence upon the Effective Date and continue until terminated as set forth in this Section 6. In the event that the Software is a "try-out" version or otherwise "times out" after a specific period of time, this Agreement shall automatically terminate with respect to such "try-out" version when such Software ceases to operate. Further, each party may terminate this Agreement without cause upon fifteen (15) days prior written notice to the other party. Finally, Adobe may terminate this Agreement immediately upon written notice if Licensee fails to comply with any term of this Agreement. Upon any such termination, Licensee agrees to promptly return or destroy the Materials. Sections 2, 3, 4, 8, and 9 shall survive any termination or expiration of this Agreement.
7. Governing Law. This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is purchased when Licensee is in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is purchased when Licensee is in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) England, if a license to the Software is purchased when Licensee is in any other jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between Adobe and Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
9. Compliance with Licenses. Adobe may, at its expense, and no more than once every twelve (12) months, appoint its own personnel or an independent third party to verify the number of copies and installations as well as usage of the Adobe software in use by Licensee. Any such verification shall be conducted upon seven (7) business days notice, during regular business hours at Licensee’s offices and shall not unreasonably interfere with Licensee’s business activities. Both Adobe and its auditors shall execute a commercially reasonable non-disclosure agreement with Licensee before proceeding with the verification. If such verification shows that Licensee is using a greater number of copies of the Software than that legitimately licensed, or are deploying or using the Software in any way not permitted under this Agreement and which would require additional license fees, Licensee shall pay the applicable fees for such additional copies within thirty (30) days of invoice date, with such underpaid fees being the license fees as per Adobe’s then-current, country specific, license fee list. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement, then Licensee shall pay such underpaid fees and Adobe’s reasonable costs of conducting the verification.
10. Third-Party Beneficiary. Licensee acknowledges and agrees that Adobe’s licensors (and/or Adobe if Licensee obtained the Software from any party other than Adobe) are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or Adobe.
If Licensee has any questions regarding this agreement or if Licensee wishes to request any information from Adobe please use the address and contact information included with this product to contact the Adobe office serving Licensee’s jurisdiction.
Adobe and Flash Lite are registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries.
Adobe_FL3_Developer Beta-en_US-20071128
