Adobe Labs
 
 

cap bottom

Digital Publishing Suite End User License Agreement

ADOBE SYSTEMS INCORPORATED

Software License and Distribution Agreement for Adobe Digital Magazine Suite

NOTICE TO USER: THIS DOCUMENT INCLUDES WARRANTY INFORMATION AND A LICENSE AGREEMENT GOVERNING THE USE AND DISTRIBUTION OF THE CONTENTS CONTAINED IN THIS ADOBE DIGITAL MAGAZINE SUITE DEVELOPMENT KIT.

ADOBE PERMITS PUBLISHER TO USE THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. USE OF SOME THIRD PARTY MATERIALS INCLUDED IN THE SOFTWARE MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS TYPICALLY FOUND IN A SEPARATE LICENSE AGREEMENT, 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.

1. Definitions.

1.1 Adobe means collectively Adobe Systems Incorporated, a Delaware corporation, 345 Park Avenue, San Jose, California 95110 (Adobe Systems) (for licenses granted in the United States, Canada and Mexico) and Adobe Systems Software Ireland Limited, Unit 3100, Lake Drive, City West Campus, Saggart D24, Republic of Ireland (Adobe Ireland), a company organized under the laws of Ireland and an affiliate and licensee of Adobe Systems (for licenses granted in all other countries of the world).

1.2 Authoring Tools means the Digital Content Bundler, Digital Publishing Plug-in for InDesign, Digital Content Preview Tool, and the Interactive Overlay Creator provided to Publisher as part of the Software.

1.3 Content Viewer means the Digital Content Viewer provided to Publisher as part of the Software.

1.4 Documentation means all related explanatory written materials or files pertaining to the Software.

1.5 Effective Date means the date the Software was downloaded and these license terms accepted by Publisher.

1.6 Publisher means the individual or entity who downloads the Software and accepts the license terms herein.

1.7 Proprietary Right means any patent, copyright, trademark, service mark, mask work, trade secret or other intellectual property or proprietary right.

1.8 Publisher's End Users means any end user customers to whom Publisher markets and distributes subscriptions to an electronic version of Publisher's magazines.

1.9 Publisher Viewer shall mean the Publisher's version(s) of the Content Viewer, in object-code format that is commercially branded and deployed as Publisher's custom version of the Content Viewer.

1.10 Software means (a) all of the contents of the files (delivered electronically or on physical media), or disk(s) or other media for the Adobe Digital Magazine Development Kit, which includes (i) the Content Viewer (ii) Authoring Tools; (iii) related explanatory written materials or files (Documentation); and (iv) upgrades, modified versions, updates, additions, and copies of the foregoing, provided to Publisher by Adobe at any time (collectively, Updates).

2. Software and Distribution License.

Subject to the terms of this Agreement, Adobe grants to Publisher a non-exclusive, non-transferable (except as permitted hereunder) license under all applicable Proprietary Rights during the Term as follows:

2.1 Authoring Tools License. Publisher may use the Authoring Tools solely for the purpose of developing a Publisher Viewer designed to be displayed within the Content Viewer. Publisher may not distribute the Authoring Tools to any third party.

2.2 Content Viewer License. Publisher may use the Content Viewer in order to (i) use, evaluate and test the output from the Authoring Tools; (ii) publicly perform, digitally perform, and display the output from the Authoring Tools; and (ii) make back-up and archival copies from time to time, as Publisher deems reasonably necessary. For the avoidance of doubt, Publisher may not distribute the Content Viewer on a stand-alone basis to any third parties.

2.3 Publisher Viewer Distribution License. Publisher may distribute the Publisher Viewer (i) to Publisher's End Users and to use any available methods (including via the internet) to grant to Publisher's End Users the license to install and use the Publisher Viewer, including pre-production, or beta versions thereof, for their personal use; and (ii) distribute the Publisher Viewer installed or distributed by Publisher's distributor(s), through multiple tiers of distribution, which includes the right of Publisher to sublicense the Publisher Viewer to Publisher's distributor(s) in accordance with and pursuant to all of the terms and conditions of this Agreement for purposes of installing the Publisher Viewer on or in Publisher's distributor(s) products or distributing the Publisher Viewer to Publisher's End Users, provided that Publisher shall not be relieved of its obligations or liabilities to Adobe under this Agreement by the exercise of such sublicense rights and Publisher shall remain liable for any obligations or liabilities to Adobe arising or resulting from the acts or omissions in breach of these terms and conditions by Publisher distributors.

2.4 Subcontracting. Publisher may sub-license development of the Publisher Viewer to a third party subcontractor or development contractor to develop the Publisher Viewer on Publisher's behalf, provided that: (a) Publisher is responsible for ensuring that any such subcontractor agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Publisher; (b) such use is only in relation to Publisher's direct beneficial business purposes as restricted herein; (c) such use does not represent or constitute an increase in the scope or number of licenses provided hereunder; and (d) Publisher shall remain fully liable for any and all acts or omissions by the subcontractor related to this Agreement.

3. Obligations and Restrictions.

3.1 Content and Distribution Restrictions. Publisher agrees that it shall only make content available with the Publisher Viewer that originates with and/or is licensed by Publisher for distribution by Publisher.

3.2 Notices. Any copy of the Software that Publisher makes must contain the same copyright and other proprietary notices that appear on or in the Software.

3.3 No Modification or Reverse Engineering. Except as provided herein, Publisher may not modify, adapt, translate or create derivative works based upon the Software. Publisher will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent Publisher may be expressly permitted to reverse engineer or decompile under applicable law. Publisher shall first request permission from Adobe in writing to provide Publisher 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 the Adobe at the address provided in the Software or such other address made available on adobe.com from time to time.

3.4 Analytics. Adobe may include certain functionality to permit Publisher to utilize analytics related to Publisher's use of the Software. The analytics collection works in conjunction with services provided by Adobe Omniture. In order to establish analytics functionality Publisher will be required to enter into a separate written agreement with Adobe Omniture.

3.5 End User License Agreement. Publisher shall ensure that the Publisher Viewer is distributed to Publisher's End Users under an enforceable end user license agreement, in favor of Publisher and its suppliers containing at least the following minimum terms (the End-User License): (i) a prohibition against distribution and copying, (ii) a prohibition against modifications and derivative works, (iii) a prohibition against decompiling, reverse engineering, disassembling, and otherwise reducing the software to a human-perceivable form, (iv) a provision indicating ownership of software by Publisher and its suppliers, (v) a disclaimer of indirect, special, incidental, punitive, and consequential damages, and (vi) other industry standard disclaimers and limitations, including, as applicable: a disclaimer of all applicable statutory warranties, to the full extent allowed by law, a limitation of liability not to exceed the price of the Publisher Viewer and/or a provision that the end user's sole remedy shall be a right of return and refund, if any, from Publisher.

3.6 Upgrades. Publisher shall use reasonable efforts to update the Publisher Viewer with any updates or upgrades to the Software provided to Publisher by Adobe within a reasonable period of time after Publisher first receives the applicable update or upgrade.

4. Use of Publisher's Name.

Adobe may, at its sole discretion, list Publisher's name on Adobe's website as a licensee of the Software. In addition, Publisher grants to Adobe a revocable, non-exclusive, non-transferable (except as permitted hereunder) right during the Term to use Publisher's Trademarks, a description of the Publisher Viewer, quotes from Publisher and an image representing Publisher (“Publisher's Materials) as delivered by Publisher to Adobe for use in connection with the marketing of the Software and/or Publisher Viewer (a) on Adobe's website; and (b) for use in Adobe marketing and promotional materials that have been approved in writing by Publisher with respect to the initial use, which may include without limitation event presentations, web site announcements or lists, reviewers' guides, advertisements, product datasheets, product packaging, and developer kits. Approvals for 4(b) above shall not be unreasonably withheld. Publisher hereby represents and warrants that any Publisher Materials provided pursuant to this Agreement will not (a) contain anything of a libelous nature nor be obscene according to the laws of California; or (b) contain any element that infringes or will infringe the proprietary or other rights of any third party. Publisher agrees that if any of these warranties or representations made above are untrue, in whole or in part, that Publisher will indemnify and hold Adobe harmless from any liabilities, losses, damages and expenses (including but not limited to legal fees) arising out of or in connection with any claim or suit based upon the allegations, which if true, would be a breach of the representations above. Adobe agrees that it will take reasonable steps to protect the Publisher Materials to the same extent it would protect its own materials and Adobe will use Publisher Materials containing quotes and writings in appropriate context.

5. Transfer.

Publisher may not rent, lease, sublicense, assign or transfer Publisher's rights in the Software, or authorize all or any portion of the Software to be copied onto another user's Computer except as may be expressly permitted by this agreement.

6. Intellectual Property Ownership, Reservation of Rights.

The Software and any authorized copies of the Software that Publisher makes are the intellectual property of 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 law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant Publisher any intellectual property rights in the Software and all rights not expressly granted are reserved by Adobe and its suppliers.

7. No Warranty.

The Software, is being delivered to Publisher AS IS and with ALL FAULTS. ADOBE AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS PUBLISHER MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THAT CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO PUBLISHER IN PUBLISHER'S JURISDICTION, ADOBE AND ITS SUPPLIERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. PUBLISHERMAY HAVE STATUTORY WARRANTY RIGHTS UNDER LAW IN PUBLISHER'S JURISIDCTION THAT MAY NOT BE DISCLAIMED BY ADOBE. The foregoing exclusions and limitations will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. The provisions of Section 7 and Section 8 shall survive the termination of this agreement, howsoever caused, but this shall not imply or create any continued right to use the Software after termination of this agreement.

8. Limitation of Liability.

IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO PUBLISHER FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER ARISING FROM THIS AGREEMENT AND/OR PUBLISHER'S USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, COSTS, OR CLAIMS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN PUBLISHER'S JURISDICTION. IN ANY EVENT, ADOBE'S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO FIFTY U.S. DOLLARS ($50.00). Nothing contained in this Agreement limits Adobe's liability to Publisher 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/or limiting obligations, warranties and liability as provided in this agreement, but in no other respects and for no other purpose.

9. Export Rules.

Publisher agrees, and will ensure that its distributors agree, 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 export controlled items under the Export Laws, Publisher represents and warrants that Publisher is not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that Publisher is not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if Publisher fails to comply with the terms of this agreement.

10. Governing Law.

This agreement will be governed by and construed in accordance with the substantive laws in force in the State of California. The courts of Santa Clara County, California shall 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.

11. Term and Termination.

This Agreement is effective on the Effective Date and shall remain in effect until terminated (the Term) pursuant to this Section 11. Publisher may terminate this Agreement this Agreement at any time for any reason. Adobe has the right to terminate this Agreement and all licenses included herein immediately if Publisher fails to comply with any term of this Agreement. Upon expiration or termination of this Agreement for any reason, Publisher shall discontinue all use, reproduction and distribution of the Software and shall destroy the Software, Documentation, and all copies thereto. The following Sections shall survive termination of this Agreement: 7 (No Warranty), 8 (Limitation of Liability), 10(Governing Law), 11 (Termination), 13 (Notice), and 14 (General Information).

12. Assignment.

Neither this Agreement nor any rights or obligations of the parties hereunder may be assigned in whole or in part without the prior written approval of the other party. Any assignment in violation of this paragraph shall be void and of no effect. For the purposes of this section, a change in the persons or entities that control fifty percent (50%) or more of the equity securities or voting interest of a party shall be considered an assignment of rights.

13. Notice.

All requests and notices given under this agreement will be in writing and will be by personal delivery or by certified or registered mail, return receipt requested (or in the case of notices from Adobe to Publisher, by e-mail) and will be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon sending of electronic transmission. Notices from Distributor to Adobe will be sent to the following address: Adobe Systems Incorporated, 345 Park Avenue, San Jose, California 95110, Attention: General Counsel.

14. 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. This agreement shall not prejudice the statutory rights of any party dealing as a consumer. This agreement may only be modified by a writing signed by an authorized officer of Adobe. Updates may be licensed to Publisher by Adobe with additional or different terms. This is the entire agreement between Adobe and Publisher relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.

DigitalMagaizineSuiteEULA_en_US-20101026_0300