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Adobe Pixel Bender 3D End User License Agreement

ADOBE SYSTEMS INCORPORATED

SOFTWARE DEVELOPMENT KIT

LICENSE AGREEMENT FOR ADOBE® PIXEL BENDER® 3D SDK ("AGREEMENT")

1. NO WARRANTY, LIMITATION OF LIABILITY, BINDING AGREEMENT AND ADDITIONAL TERMS AND AGREEMENTS.

1.1 WARRANTY DISCLAIMER. YOU ACKNOWLEDGE THAT THE SDK MAY BE A PRERELEASE VERSION AND MAY BE PRONE TO BUGS AND/OR STABILITY ISSUES. THE SDK IS PROVIDED TO YOU "AS IS," AND ADOBE AND ITS SUPPLIERS DISCLAIM ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND. YOU ACKNOWLEDGE THAT ADOBE MAKES NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE SDK INCLUDING ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SDK AND YOUR USE OF AND OUTPUT FROM THE SDK. Adobe is not obligated to provide maintenance, technical support, or updates to You for any portion of the SDK. The foregoing exclusions and limitations shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

1.2 LIMITATION OF LIABILITY. IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSSES, DAMAGES, CLAIMS, OR COSTS WHATSOEVER, INCLUDING ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY, OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES, CLAIMS, OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ADOBE’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SDK, IF ANY. THIS LIMITATION ON ADOBE AND ITS SUPPLIERS WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this Agreement limits Adobe’s, or its suppliers, liability to You in the event of death or personal injury resulting from Adobe’s negligence or for the tort of deceit (fraud). Adobe is acting on behalf of its suppliers for the purpose of disclaiming, excluding, and limiting obligations, warranties, and liability, but in no other respects and for no other purpose.

1.3 Binding Agreement. This Agreement governs installation and use of the SDK. You agree that this Agreement is like any written negotiated agreement signed by You. By clicking to acknowledge agreement to be bound during review of an electronic version of this Agreement or by downloading, copying, installing, or using any portion of this SDK, You accept all the terms and conditions of this Agreement. This Agreement is enforceable against You and any person or entity that obtains this SDK or on whose behalf they are used: for example, Your employer. If You do not agree to the terms of this Agreement, do not use any portion of this SDK. This Agreement shall apply to any portion of the SDK, regardless of whether other software is referred to or described herein.

1.4 Additional Terms and Agreements. You may have a separate written agreement with Adobe that supplements or supersedes all or portions of this Agreement. Your use of some third party materials included in the SDK may be subject to other terms and conditions typically found in a separate license agreement or a "Read Me" file located near such materials or in the "Third Party Software Notices and/or Additional Terms and Conditions" found at http://www.adobe.com/go/thirdparty. Such other terms and conditions may require You to pass through notices to Your end users. Such other terms and conditions will supersede all or portions of this Agreement in the event of a conflict with the terms and conditions of this Agreement. This Agreement does not govern the use of Adobe Products. See the end user license agreements accompanying the Adobe Products for governing terms. Adobe Products refer to Adobe’s application programs, technologies, and software such as Adobe developed plug-ins, which are or may be made available for licensing to the general public, including any modified versions or upgrades thereof.

2. DEFINITIONS.

2.1 "Adobe" means Adobe Systems Incorporated, a Delaware corporation, 345 Park Avenue, San Jose, California 95110, if Section 10 of this Agreement applies; otherwise it means Adobe Systems Software Ireland Limited, Unit 4 6 Riverwalk, Citywest Business Campus, Dublin 24, Ireland, a company organized under the laws of Ireland and an affiliate and licensee of Adobe Systems Incorporated.

2.2 "Developer", "You" and "Your" refer to any person or entity acquiring, installing, or using the SDK under the terms of this Agreement.

2.3 "Documentation" means any related explanatory materials accompanying the SDK.

2.4 "Programming Language" means the Pixel Bender 3D programming language included in this SDK.

2.5 "Sample Code" means software code that Adobe has identified as "sample code" and included in the SDK for You to incorporate into Your application programs.

2.6 "SDK" means the Pixel Bender 3D Programming Language, Sample Code, Tools, Documentation, and other related items. Only those items placed on Your computer by executing the SDK installer and/or otherwise manually downloaded by You are part of this SDK.

2.7 "Tools" refer to programs, compilers and utilities that may be included for You to test or compile Your application programs.

3. LICENSE AND LICENSE RESTRICTIONS.

Subject to the restrictions contained in this Section 3, Adobe grants to You a nonexclusive, nontransferable, royalty-free license to use the items in the SDK according to the terms and conditions of this Agreement only for the purpose of internal development of application programs designed to function with Adobe products.

3.1 Tools and Documentation License. Subject to the terms and conditions of this Agreement and except as otherwise expressly provided herein, Adobe grants You a non-exclusive, nontransferable license to use the Tools and Documentation for the sole purpose of internally developing Your programs designed to function with Adobe products. This Agreement does not grant You the right to distribute the Tools or Documentation.

3.2 Sample Code License Under this Agreement. You may use, modify, or merge all or portions of the Sample Code with Your application programs and distribute it only as part of Your products in object code or source code form. Any modified or merged portion of the Sample Code is subject to this Agreement. You are required to include Adobe’s copyright notices on Your application programs except for those programs in which You include a copyright notice reflecting the copyright ownership of Developer in such programs. You may not use Adobe’s name, logo, or trademarks to market Your products. You may not assign Your rights or obligations granted under this Agreement without the prior written consent of Adobe. Any attempted assignment or transfer without such prior written consent from Adobe shall be void and of no effect.

3.3 Restrictions.

3.3.1 Subject to the permissions in 3.1 and 3.2 above, You may use the SDK solely for the purpose of internal development. Except as provided herein, You may not include any portion of the SDK in Your Developer products.

3.3.2 You may not reverse engineer, decompile, or disassemble any portion of the SDK. To the extent that local law grants You the right to decompile software in order to obtain information necessary to render the software interoperable with other software, You shall first request to Adobe in writing to provide You with the necessary information. Adobe has the right to impose reasonable conditions, such as a reasonable fee for doing so. Requests for information should be directed to Adobe at the address provided in the SDK or such other address made available on adobe.com from time to time.

3.3.3 You may make a limited number of copies of the SDK to be used by Your employees or consultants as provided herein, and not for general business purposes, and such employees or consultants shall be subject to this Agreement.

3.3.4 You shall not sublicense, assign, or transfer the SDK or Your rights in the SDK, or authorize any portion of the SDK to be copied onto or accessed from another individual’s or entity’s computer except as may be explicitly provided in this Agreement. Notwithstanding anything to the contrary in this Section 3.3.4, You may transfer copies of the SDK installed on one of Your computers to another one of Your computers, provided that the resulting installation and use of the SDK is in accordance with the terms of this Agreement and does not cause You to exceed Your right to use the SDK under this Agreement.

3.3.5 You may use the Programming Language only as provided in the Adobe Documentation applicable thereto.

3.3.6 Development of a Pixel Bender 3D runtime based on the SDK is expressly prohibited.

3.3.7 You will not use the SDK to create, develop or use any program, software, or service that (a) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, (b) when used in the manner in which it is intended or marketed, violates any law, statute, ordinance, regulation, or rights (including any laws, regulations or rights respecting intellectual property, computer spyware, privacy, export control, unfair competition, antidiscrimination, or false advertising), or (c) interferes with the operability of Adobe or third-party programs or software.

3.3.8 The SDK may include various applications, utilities and components, may support multiple platforms and languages or may be provided to You on multiple media or in multiple copies. Nonetheless, the SDK is designed and provided to You as a single product to be used as a single product on computers and platforms as permitted herein. You are not required to use all component parts of the SDK, but You shall not unbundle or repackage the component parts of the SDK for distribution, transfer, resale, or use on different computers.

4. PROPRIETARY RIGHTS.

The items contained in the SDK and any copies You are authorized by Adobe to make are the intellectual property of Adobe and its suppliers. The structure, organization, and code are the valuable trade secrets and confidential information of Adobe and its suppliers. The SDK is protected by United States copyright and patent law, international treaty provisions, and applicable laws of the country in which it is being used. You agree to protect all copyright and other ownership interests of Adobe and/or its suppliers in all items in the SDK supplied under this Agreement. You agree that all copies of the items in the SDK, reproduced for any reason by You, contain the same copyright notices, and other proprietary notices as appropriate, as they appear on or in the master items delivered by Adobe in the SDK. Adobe and/or its suppliers retain title and ownership of the items in the SDK, the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist. Except as stated above, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the SDK.

5. NON-BLOCKING OF ADOBE DEVELOPMENT.

You acknowledge that Adobe is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that You may develop based on Your license herein. Nothing in this Agreement shall impair, limit, or curtail Adobe’s right to continue with its development, maintenance, and/or distribution of Adobe’s technology or products. You agree that You shall not assert in any way any patent owned by You arising out of or in connection with this SDK or modifications made thereto against Adobe, its subsidiaries or affiliates, or their customers, direct or indirect, agents, and contractors for the manufacture, use, import, licensing, offer for sale, or sale of any Adobe products.

6. TERM.

This Agreement is effective until terminated. Adobe has the right to terminate this Agreement immediately, without judicial intervention, if You fail to comply with any term herein. Upon any such termination, You must remove all full and partial copies of the items in the SDK from Your computer and discontinue the use of the items in the SDK.

7. INDEMNIFICATION.

Developer agrees to indemnify, hold harmless, and defend Adobe and its suppliers from and against any and all liabilities, losses, actions, damages, lawsuits, or claims (including product liability, warranty and intellectual property claims, and all reasonable expenses, costs, and attorneys fees), that arise or result from the use or distribution of any portion of the SDK or Developer’s products that contains or is based upon any portion of the SDK, provided that Adobe gives Developer prompt written notice of any such claim, tenders to Developer the defense or settlement of such a claim at Developer’s expense, and cooperates with Developer, at Developer expense, in defending or settling such claim.

8. CHOICE OF LAW.

If You are a consumer who uses the Software for only personal non-business purposes, then this agreement will be governed by the laws of the jurisdiction in which You purchased the license to use the Software. If You are not such a consumer, this agreement will be governed by and construed in accordance with the substantive laws in force in: (a) the State of California, if a license to the Software is obtained when You are in the United States, Canada, or Mexico; or (b) Japan, if a license to the Software is obtained when You are in Japan; or (c) Singapore, if a license to the Software is obtained when you are in a member state of the Association of Southeast Asian Nations, the People’s Republic of China (including Hong Kong S.A.R. and Macau S.A.R.), Taiwan or the Republic of Korea, whereby this Agreement shall be governed by and construed pursuant to the laws of Singapore, without regard to its conflict of laws principles; or (d) England, if a license to the Software is obtained when You are in any 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. When Singapore law applies, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC") for the time being in force, which rules are deemed to be incorporated by reference in this section. There shall be one arbitrator, selected jointly by the parties. If the arbitrator is not selected within thirty (30) days of the written demand by a party to submit to arbitration, the Chairman of the SIAC shall make the selection. The language of the arbitration shall be English. Notwithstanding any provision in this agreement, Adobe or You may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. 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.

9. U.S. GOVERNMENT REGULATIONS AND EXPORT.

9.1 You agree that any Developer product that includes Sample Code or Programming Language will include in its license agreement a reference to applicable U.S. Government regulations that control licensing of software.

9.2 You acknowledge that this SDK is subject to the U.S. Export Administration Regulations (the "EAR") and that You will comply with the EAR. You will not export or re-export this SDK, or any portion hereof, directly or indirectly, to: (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria); (b) any end user who You know or have reason to know will utilize them in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (c) any end user who has been prohibited from participating in the US export transactions by any federal agency of the US government. In addition, You are responsible for complying with any local laws in Your jurisdiction which may impact Your right to import, export or use the SDK.

10. WAIVER.

None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Adobe, its agents, or employees, but only by an instrument in writing signed by an officer of Adobe.

11. INTEGRATION.

When conflicting language exists between this Agreement and any other agreement included in the SDK, this Agreement shall supersede. If either Adobe or Developer employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees. You acknowledge that You have read this Agreement, understand it and that it is the complete and exclusive statement of Your agreement with Adobe, which supersedes any prior agreement, oral or written, between Adobe and You with respect to the licensing to You of the SDK. No variation of the terms of this Agreement will be enforceable against Adobe unless Adobe gives its express consent, in writing signed by an officer of Adobe. The English language version of this Agreement shall be the version used in the event any dispute arises hereunder. All translations of this Agreement are for convenience only and shall not be used by the parties or any court when interpreting or construing this Agreement.

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