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Adobe Flex Builder 3 End User License Agreement

ADOBE SYSTEMS INCORPORATED

ADOBE FLEX BUILDER 3

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. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND DURING REVIEW OF AN ELECTRONIC VERSION OF THIS LICENSE, OR 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 (E.G., ADOBE FLEX BUILDER SOFTWARE) 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 7(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 “Authorized Users” means employees and individual contractors (i.e., temporary employees) of Licensee.

1.3 “Computer” means one or more central processing units (“CPU”) in a hardware device (including hardware devices accessed by multiple users through a network (“Server”) that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

1.4 “Documentation” means the user manuals and/or technical publications as applicable, relating to installation, use and administration of the Software.

1.5 “Internal Network” means Licensee’s private, proprietary network resource accessible only by Authorized Users. “Internal Network” specifically excludes the Internet (as such term is commonly defined) or any other network community open to the public, including membership or subscription driven groups, associations or similar organizations. Connection by secure links such as VPN or dial up to Licensee’s Internal Network for the purpose of allowing Authorized Users to use the Software should be deemed use over an Internal Network.

1.6 “Sample Code” means sample software in source code format designated in the Documentation as “sample code”,  “samples,” “sample application code”, and/or “snippets”, and found in directories labeled “samples”,  but shall not mean any components that are part of the SDK Components.

1.7 “SDK Components” means the files, libraries, and executables contained in the zip file located in the resources directory labeled Flex SDK or, as applicable, subsequently labeled directories (e.g. Flex SDK 3) (except for the contents contained in subdirectory “samples”),  or copies of such files, libraries and executables identified in a “Read Me” file as being included or located elsewhere in the Software, including the SDK Source Files, build files, compilers, and related information, as well as the file format specifications, if any.

1.8 “Software” means the pre-release version of the software program(s) 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. Evaluation 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 the Software. Licensee shall neither reproduce nor distribute copies of the Software. All other rights are reserved by Adobe. Except as expressly set forth in this Section 2, Licensee acquires no other licenses under any intellectual property rights of Adobe. Adobe is not obligated to provide maintenance, technical support or updates to Licensee for any Software.

Licensee agrees to provide reasonable feedback with respect to Software evaluations, including without limitation reasonable feedback on usability, bug reports, test results and documentation (collectively “Feedback”). Licensee will develop a test sample and either send paper samples with comments to Adobe or, where appropriate, send machine-readable files as test samples.  Licensee grants to Adobe a non-exclusive, worldwide, royalty-free right and license to reproduce, distribute, make derivative works based upon, publicly display, publicly perform, make, use, sell, and export the Feedback, including without limitation the right to sublicense such rights through multiple tiers of sublicensees. Licensee agrees that Licensee has all rights necessary to provide the Feedback to Adobe under this Agreement and acknowledges that Adobe is in no way obligated to incorporate, use or otherwise acknowledge any Feedback that Licensee has provided.

2.1 SDK Components.

2.1.1 This package does not contain the open source version of the Flex SDK.

2.1.2 License Grant. Subject to the terms and conditions of this Agreement, Adobe grants Licensee a non-exclusive, nontransferable license to (a) use the SDK Components for the sole purpose of internally developing Developer Programs, (b) modify and reproduce SDK Source Files for use as a component of Developer Programs that add Material Improvements to the SDK Source Files, provided that (1) such Developer Programs are designed to operate in connection with Adobe Flex Builder, Adobe Flex Charting, Adobe Flex Data Services Software, Adobe LiveCycle Data Services, or the SDK Components, (2) Licensee includes a copyright notice reflecting the copyright ownership of Developer in such Developer Programs,  (3) Licensee does not make any statements that its Developer Program is “certified,” or that its performance is guaranteed, by Adobe, (4) Licensee does not use Adobe’s name or trademarks to market its Developer Programs without written permission of Adobe, (5) Licensee does not delete or in any manner alter the copyright notices, trademarks, logos or related notices, or other proprietary rights notices of Adobe (and its licensors, if any) appearing on or within the SDK Source Files and/or SDK Components, or any documentation relating to the SDK Components, (6) Licensee causes any modified files to carry prominent notices stating that Licensee changed the files, and (7) Licensee does not use “mx”, “mxml”, “flex”, “flash”, livecycle or “adobe” in any new package or class names distributed with the SDK Source Files. Any modified or merged portion of the SDK Source Files is subject to this Agreement. The Licensee shall not distribute any SDK Source Flies and/or the Developer Programs.

2.1.3 Definitions Related To SDK Components.

(a) “Developer Programs” shall mean programs that are built consisting partly of the SDK Source Files and partly of user’s Material Improvement to add to or extend the SDK Source Files.

 (b) “Material Improvement” shall mean perceptible, measurable and definable improvements to the SDK Source Files that provide extended or additional significant and primary functionality that add significant business value to the SDK Source Files.

(c) “SDK Source Files” shall mean the Flex Framework source code files that are provided with the SDK Components and, if Licensee purchases a license to Adobe Flex Charting Software, Flex Charting components source code files that are provided with Flex Charting Software.

2.1.4 Restrictions.

(a) General Restrictions. Licensee may not distribute, sell, sublicense, rent, loan, or lease the SDK Components and/or any component thereof to any third party. For the avoidance of doubt, Licensee shall not have a right to distribute any SDK Components that are provided as executables and/or in object code form.  Licensee also agrees not to add or delete any program files that would modify the functionality and/or appearance of other Adobe software and/or any component thereof.

(b) Development Restrictions. Licensee agrees that Licensee will not use the SDK Components to create, develop or use any program, software or service which (1) 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; (2) when used in the manner in which it is intended, violates any material law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); or (3) interferes with the operability of other Adobe or third-party programs or software.

(c) Indemnification. Licensee agrees to defend, indemnify, and hold Adobe and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the Developer Programs, provided that Adobe gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim.

2.2 Sample Code. Licensee may modify the Sample Code solely for the purposes of designing, developing and testing Licensee’s own software applications. However, Licensee is permitted to use, copy and redistribute its modified Sample Code only if all of the following conditions are met: (a) Licensee includes Adobe's copyright notice (if any) with Licensee’s application, including every location in which any other copyright notice appears in such application; and (b) Licensee does not otherwise use Adobe's name, logos or other Adobe trademarks to market Licensee’s application. Licensee agrees to defend, indemnify, and hold Adobe and its suppliers harmless from and against any claims or lawsuits, including attorneys’ reasonable fees, that arise or result from the use or distribution of Licensee’s applications, provided that Adobe gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of such a claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim.

2.3 Adobe Flex Builder with Flex Charting Software. Adobe grants Customer a non-exclusive license to install and use the Flex Builder Software with Flex Charting Software in the manner and for the purposes described in the Documentation, as further set forth below.

2.3.1 General Use. Licensee may install and use one copy of the Software on its compatible Computers.  

2.4 Documentation. Licensee may make copies of the Documentation for use by Authorized Users 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.

2.5 Font Software. If the Software includes font software, then Licensee may (a) use the font software on Licensee’s Computers in connection with Licensee’s use of the Software as permitted under this Agreement; (b) output such font software on any output devices connected to Licensee’s Computers; (c) convert and install the font software into another format for use in other environments provided that use of the converted font software may not be distributed or transferred for any purpose except in accordance with the transfer section in this Agreement; and (d) embed copies of the font software into Licensee’s electronic documents for the purpose of printing and viewing the document, provided that if the font software Licensee is embedding is identified as “licensed for editable embedding” on Adobe’s website at http://www.adobe.com/type/browser/legal/embeddingeula.html, Licensee may also embed copies of that font software for the additional limited purpose of editing Licensee’s electronic documents.

2.6 Restrictions

2.6.1 No Modifications, No Reverse Engineering. Except as specifically provided herein with respect to SDK Components, 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.

2.6.2 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 Computers 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 Computers. Licensee shall not unbundle or repackage the Software for any purpose. 2.6.3 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 Computer except as may be explicitly provided in this Agreement. Notwithstanding anything to the contrary in this Section 2.6.3, Licensee may transfer copies of the Software installed on one of Licensee’s Computers to another one of Licensee’s Computers provided that the resulting installation and use of the Software is in accordance with the terms of this Agreement and does not cause Licensee to exceed Licensee’s right to use the Software under this Agreement.

2.6.4 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.

2.6.5 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, does not represent final Software from Adobe, may not have been tested for quality assurance, 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. Adobe is not obligated to provide maintenance, technical support or updates to Licensee for any 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 or Section 5. 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. In addition, 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.  The provisions of this Agreement that would by their nature reasonably apply after termination and/or expiration of this Agreement shall survive the 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.

11. Eclipse Code.  This Software may contain Eclipse code provided by the Eclipse Foundation (“Eclipse Code”). On behalf of Contributors to such Eclipse Code, Adobe hereby: (i) disclaims any and all warranties or conditions of title and non-infringement, and implied warranties or conditions of merchantability and fitness for a particular purpose with respect to such Eclipse Code and any and all derivative works thereof, (ii) disclaims any liability for damages, including direct, indirect, special, incidental and consequential damages, such as lost profits, and (iii) represents that any provisions in this License Agreement that differ from the Eclipse Public License under which Adobe licensed the Eclipse Code, are offered by Adobe alone and not by any other party. The source code for the Eclipse Code as contained in this Software may be obtained by the Licensee as described in a Readme to the Software. Adobe provides the Eclipse Code as is, without warranty or support from Adobe.     

12 Third Party Software.  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 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 (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.

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 Flex are either registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries. All other trademarks are the property of their respective owners.