Case 4:20-cv-03049-DMR Document 1-1 Filed 05/04/20 Page 1 of 13
`Case 4:20-cv-03049—DMR Document 1-1 Filed 05/04/20 Page 1 of 13
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`EXHIBIT 1
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`EXHIBIT 1
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`ADOBE SYSTEMS INCORPORATED
`
`ADOBE COLDFUSION SOFTWARE
`
`Software License Agreement (the “Agreement”)
`
`NOTICE TO USER: THIS AGREEMENT GOVERNS INSTALLATION AND USE OF THE ADOBE SOFTWARE
`DESCRIBED HEREIN. LICENSEE AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED
`AGREEMENT SIGNED BY LICENSEE. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND TO
`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 OR 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.
`
`YOU MAY HAVE ANOTHER 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, 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.
`
`1.2 “Authorized Users” means employees and individual contractors (e.g., temporary
`employees) of Licensee.
`
`1.3 “Cloud” means a technical environment operating one or more instances of the
`Software to deliver hosted services and resources over the internet or intranet in
`which the services and resources can be accessed in a manner that permits such
`services and resources to be made available “on demand”, scaling up or down, to the
`processing needs of the user over time.
`
`1.4 “Computer” means one or more central processing units (“CPU”) in a hardware
`device (including a Server) that accepts information in digital or similar form and
`manipulates it for a specific result based on a sequence of instructions.
`
`1.5 “CPU” is each distinct central processing unit (physical or virtual) within the
`Computer capable of independently manipulating and operating the Software. Each CPU
`may contain one or multiple processing cores. The total number of cores operating
`the Software in the Computer may not exceed the licensed quantity, and will be
`greater of (i) the exact number of cores operating the Software in the case when
`Licensee configures the Computer (using a reliable and verifiable means of hardware
`or software partitioning) such that the total number of CPU cores that actually
`operate the Software is less than the total number of cores on that Computer, or,
`(ii) the sum of all the cores contained in every pCPU on the Computer. The total
`number of CPUs in a Computer will then be calculated by dividing the total number of
`cores operating the Software by 4, rounded up to the next whole number in case the
`quotient of the division by 4 is not an integer. For example, if the total number of
`cores operating the Software is 12, then the total number of CPUs equals 3; if the
`total number of cores operating the Software is 14, then the total number of CPUs
`equals 4.
`
`1.6 “Developer Edition Software” means Software licensed for localhost development
`of applications and can be accessed from a maximum of two simultaneous remote IP
`addresses.
`
`1.7 “Development Software” means Software licensed solely for (i) internal
`development and testing, and (ii) for use on a Staging Server, when Licensee is
`using the Software with respect to a valid license to the Production Software. In
`each case the Development Software may only be accessed by Authorized Users over the
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`Licensee’s Internal Network.
`
`1.8 “Staging Server” means a Server used to assemble, test and review new or newer
`versions of applications and that is used to deploy such applications over
`Licensee’s Internal Network and only to be accessed by Authorized Users before, the
`applications are moved into live, stand-by production, or production environments.
`
`1.9 “Disaster Recovery Environment” means Licensee’s technical environment designed
`solely to allow Licensee to respond to an interruption in service due to an event
`beyond Licensee’s control that creates an inability on Licensee’s part to provide
`critical business functions for a material period of time.
`
`1.10 “Documentation” means the user manuals and technical publications as
`applicable, supplied in connection with validly licensed Software relating to the
`installation, use and administration of the Software.
`
`1.11 “Internal Network” means Licensee’s private, proprietary network resource
`accessible only by Authorized Users. “Internal Network” specifically excludes the
`Internet 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 is deemed use over an Internal
`Network.
`
`1.12 “License Key” means any license key, activation code, or similar installation,
`access or usage control codes, including serial numbers and electronic certificates
`digitally signed by Adobe, designed to provide access to licensed software
`applications.
`
`1.13 “Licensee” means any individual or entity that uses, downloads, copies,
`installs or otherwise makes use of the Software.
`
`1.14 “Not For Resale Software” or “NFR Software” means Software identified as such
`and licensed for internal evaluation purposes and not for productive business use.
`
`1.15 “Physical CPU” (or “pCPU”) means one physical central processing unit of a
`Computer. A pCPU contains one or more processing cores.
`
`1.16 “Production Software” means Software licensed for productive business use.
`Production Software is licensed on a 2-CPU basis.
`
`1.17 “Sample Application Code” means the sample software code, application
`programming interface, header files and related information, and the file format
`specifications, if any, included as part of the Software as described in the
`Documentation or a “Read Me” file accompanying the applicable Software.
`
`1.18 “Server” means a Computer designed or configured for access by multiple users
`through a network.
`
`1.19 “Software” means (a) the object code version of the validly licensed software
`package accompanying this document, including all related Documentation and other
`materials provided by Adobe, (b) Sample Application Code, and (c) modified versions,
`copies of, and upgrades, updates and additions to such software and materials
`provided by Adobe at any time.
`
`1.20 “Trial Software” means Software licensed for internal evaluation purposes and
`not for productive business use.
`
`1.21 “Virtual Machine” (or “VM”) means a technical environment that contains the
`components necessary to operate multiple instances of software installed on a single
`Computer as if any instance of such software was separately installed on a separate
`Computer.
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`2. License.
`
`Subject to the terms and conditions of this Agreement, Adobe grants to Licensee a
`perpetual (except as set forth in Section 15 (“Term and Termination”) or as
`otherwise provided herein), non-exclusive license to permit Authorized Users to
`install and use the Software delivered hereunder on Computers within Licensee’s
`Internal Network, on the licensed platforms and configurations, in the manner and
`for the purposes described in the Documentation, and as further set forth below and
`according to the terms and conditions of this Agreement.
`
`2.1 License Limitations. Licensee’s right to install and use the Software is limited
`as follows based on the type of Software licensed: (a) if Licensee has licensed
`Production Software, Developer Edition Software, or Development Software version(s)
`of the Software, then Licensee’s right to install and use the Software is limited
`based on the terms specified in a separate written document and in Section 3 of this
`Agreement; and (b) if Licensee has licensed Trial Software or Not For Resale
`Software, then Licensee’s right to install and use the Software is limited as
`provided in Section 4 of this Agreement.
`
`2.2 Sample Application Code. Licensee’s Authorized Users may install, modify and use
`the Sample Application Code solely for purposes of facilitating use of validly
`licensed Software in accordance with this Agreement. Licensee may modify the Sample
`Application 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 Application 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 Backup and Disaster Recovery. Licensee may make and install a reasonable number
`of copies of the Software for backup and archival purposes and use such copies
`solely in the event that the primary copy has failed or is destroyed, but in no
`event may Licensee use such copies concurrently with Production Software or
`Development Software. Licensee may also install copies of the Software in a Disaster
`Recovery Environment for use solely in disaster recovery and not for production,
`development, evaluation or testing purposes other than to ensure that the Software
`is capable of replacing the primary usage of the Software in case of a disaster.
`
`2.4 Documentation. Licensee may make and distribute 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 Outsourcing. Licensee may sublicense use of the Software to a third party
`outsourcing or facilities management contractor to operate the Software on
`Licensee’s behalf, provided that: (a) Licensee provides Adobe with prior written
`notice; (b) Licensee is responsible for ensuring that any such contractor 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 Licensee; (c) such use is only
`in relation to Licensee’s direct beneficial business purposes as restricted herein;
`(d) such use does not represent or constitute an increase in the scope or number of
`licenses provided hereunder; and (e) Licensee shall remain fully liable for any and
`all acts or omissions by the contractor related to this Agreement.
`
`2.6 Restrictions
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`2.6.1 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. If you
`are located in the European Union, please refer to Section 13.1.
`
`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 except as otherwise permitted under
`this Agreement. Licensee shall not unbundle or repackage the Software for
`distribution, transfer or other disposition.
`
`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 through a separate custom
`hosting 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; (c) providing use
`of the Software in a computer service business, third party outsourcing facility or
`service, service bureau arrangement, time sharing basis, or as part of a hosted
`service; or (d) using any component, library, or other technology included with the
`Software other than solely in connection with its use of the Software. For more
`information about how to obtain a custom hosting agreement, please see:
`https://protect-us.mimecast.com/s/WNguCgJ7g0iqWoKls5x_1E.
`
`2.6.5 Export Rules. Licensee acknowledges that the Software is subject to the U.S.
`Export Administration Regulations and other export laws, restrictions, and
`regulations (collectively, the “Export Laws”) and that Licensee will comply with the
`Export Laws. Licensee will not ship, transfer, export, or re-export the Software ,
`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) (each, an “Embargoed Country”), (b) any end user whom
`Licensee knows or has 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 (each, a
`“Prohibited Use”), or (c) any end user who has been prohibited from participating in
`the U.S. export transactions by any federal agency of the U.S. government (each, a
`“Sanctioned Party”). In addition, Licensee is responsible for complying with any
`local laws in its jurisdiction which may impact Licensee’s right to import, export
`or use the Software. Licensee represents and warrants that (i) it is not a citizen
`of, or located within, an Embargoed Country, (ii) it will not use the Software for a
`Prohibited Use, and (iii) it is not a Sanctioned Party. All rights to use the
`Software are granted on condition that such rights are forfeited if Licensee fails
`to comply with the terms of this Agreement.
`
`2.6.6 In the event that Licensee fails to comply with this Agreement, Adobe may
`terminate the license and Licensee must destroy all copies of the Software (with all
`other rights of both parties and all other provisions of this Agreement surviving
`any such termination).
`
`2.7 Delivery. The Software may be delivered via electronic delivery or via tangible
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`media (e.g., CD or DVD), and, if applicable, the Software may be supplied with a
`valid License Key.
`
`3. Production Software and Development Software.
`
`The following terms and conditions govern Licensee’s use of validly licensed
`Production Software, Developer Edition Software, and Development Software versions
`of the Software.
`
`3.1 Production Software. This Section 3.1 applies only if Licensee has obtained one
`or more valid Production Software licenses, which are issued on a CPU basis, as
`defined in Section 1.5. All such licenses shall be counted in aggregate across all
`use cases as defined in Sections 3.1.1-3.1.3. For example if Licensee purchases
`three (3) Production Software licenses, Licensee can use one (1) license under the
`terms of 3.1.1 and two (2) licenses under the terms of 3.1.2, and would require
`additional licenses if Licensee wanted to use the Software pursuant to Section
`3.1.3.
`
`3.1.1 Adobe grants Licensee a license to install and use the Production Software on
`a per-CPU basis as provided herein or in a separate writing. For each Computer on
`which Production Software is installed, the minimum number of Production Software
`licenses that are required may not be less than the total number of CPUs on the
`Computer. For example if a Computer has four (4) CPUs and the Production Software
`license is for two (2) CPUs, Licensee must obtain 2 Production Software licenses for
`such Computer.
`
`3.1.2 Virtual Machine License.
`
`(i) Enterprise License. If Licensee has obtained a Production Software license to
`the enterprise version of the Software, Adobe grants Licensee the right, to run an
`unlimited number of VM instances of the Software, as long as Licensee has obtained a
`valid license, pursuant to Section 3.1.1, for all the pCPUs of the underlying
`Computer(s) operating the VMs.
`
`(ii) Standard License. If Licensee has obtained a Production Software license to the
`standard version of the Software, Adobe grants Licensee the right to run one VM
`instance for each valid license of Production Software that Licensee has obtained,
`pursuant to Section 3.1.1, for all the pCPUs of the underlying Computer(s) operating
`the VMs.
`
`3.1.3 Cloud Network License.
`
`(i) Enterprise License. If Licensee has obtained one or more Production Software
`licenses of the enterprise version of the Software, Adobe grants Licensee the right
`to operate the Software on a Cloud as provided in this Section 3.1.3 (i). The
`minimum number of Production Software licenses that are required to be obtained by
`Licensee, is equal to the total processing power of all the Cloud instances measured
`in Gigahertz (GHZ) divided by 16 and rounded to the next integer in case the
`division by 16 is a non-integer.
`
`(ii) Standard License. If Licensee has obtained one or more Production Software
`licenses to the standard version of the Software, Adobe grants Licensee the right to
`operate the Software on a Cloud as provided in this Section 3.1.3 (ii). Each
`Production Software License can run on a maximum of one Cloud instance, provided
`that instance is less than or equal to 5 GHZ in processing power. For example, if
`Licensee has a Cloud instance of 7 GHZ, Licensee cannot use a single Production
`Software license. Licensee could create two (2) Cloud instances of 4 GHZ and 3 GHZ
`which would require two (2) Production Software licenses, one for each Cloud
`instance.
`
`Licensee may contact Adobe at
`https://protect-us.mimecast.com/s/333hCjRAl1fYJBDjuqHTbI for assistance in
`determining the total processing power for a particular Cloud instance.
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`3.1.4 If Licensee purchases one or more Production Software licenses under Sections
`3.1.1 above, then Adobe also grants Licensee the right to install and use the
`Software as Development Software pursuant to Section 3.2.
`
`3.2 Development Software License. This Section 3.2 applies only if Licensee has
`obtained one or more separate Production Software licenses.
`
`3.2.1. Development Software. For each license of Production Software obtained by the
`Licensee, Adobe grants Licensee a license to install and use the Software as
`Development Software on one Server. Licensee must separately obtain the right to
`install or use the Software as Development Software on more than one Server. In
`addition to the other terms contained herein, Licensee’s license to the Development
`Software is limited to use in Licensee’s technical environment strictly for testing,
`development and staging purposes, , to be used and accessed by Authorized Users over
`the Licensee’s Internal Network.
`
`3.2.2 Development Software Restrictions. Licensee shall not (i) use the Development
`Software for any application deployment in a live or stand-by production
`environment, in each case, including, without limitation, in any environment
`accessed by application end-users including but not limited to servers,
`workstations, kiosks, and mobile computers, or (ii) use the Development Software to
`deploy applications that are accessed by end users. NOTWITHSTANDING ANYTHING TO THE
`CONTRARY, THE DEVELOPMENT SOFTWARE IS PROVIDED TO LICENSEE BY ADOBE ON AN AS IS
`BASIS, AND ADOBE DISCLAIMS ALL WARRANTY OR LIABILITY OBLIGATIONS TO LICENSEE OF ANY
`KIND.
`
`3.3 Developer Edition Software License. This Section 3.3 applies only if Licensee
`has obtained a valid Developer Edition Software license.
`
`3.3.1 Developer Edition Software. Adobe grants Licensee a license to install and use
`the Developer Edition Software on one Computer workstation. Licensee must separately
`obtain the right to install or use the Software as Developer Edition Software on
`more than one workstation. In addition to the other terms contained herein,
`Licensee’s license to the Developer Edition Software is limited to use in Licensee’s
`technical environment strictly for testing and development purposes and not for
`staging or live or stand-by production purposes.
`
`3.3.2 Developer Edition Software Restrictions. Licensee shall not (i) use the
`Developer Edition Software for any application deployment in a live or stand-by
`production environment, in each case, including, without limitation, in any
`environment accessed by application end-users including but not limited to servers,
`workstations, kiosks, and mobile computers, (ii) access the Developer Edition
`Software from more than two IP addresses at any given time, or (iii) use the
`Developer Edition Software to deploy applications that are accessed by end users.
`NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE DEVELOPER EDITION SOFTWARE IS PROVIDED
`TO LICENSEE BY ADOBE ON AN AS IS BASIS, AND ADOBE DISCLAIMS ALL WARRANTY OR
`LIABILITY OBLIGATIONS TO LICENSEE OF ANY KIND.
`
`4. Trial Software and Not for Resale Software.
`
`4.1 Trial Software. This Section 4.1 applies only if Licensee has obtained a valid
`license to evaluate Software as Trial Software as separately provided in writing by
`Adobe, as indicated by the License Key used to install the Software.
`
`4.1.1 License. Licensee may (a) install the Trial Software on Computers within
`Licensee’s Internal Network and (b) permit only Authorized Users to use the Trial
`Software (and electronic document, content and other materials generated by or
`processed with the Trial Software) within Licensee’s Internal Network for the sole
`purpose of determining whether to purchase a license to the Software and not for any
`revenue generation, commercial activity or other productive business purpose.
`Licensee is not permitted to use the Trial Software (including its output) directly
`or indirectly with any Production Software or Development Software (or the output
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`from such software).
`
`4.1.2 Limitations. Licensee’s rights to install and use Trial Software under this
`Section 4.1 will terminate immediately upon the earlier of (a) the expiration of the
`thirty (30) day period that begins on the date Adobe delivers or makes available the
`Trial Software, or (b) such time that Licensee purchases a license to a Production
`version of such Software. Adobe reserves the right to terminate Licensee’s license
`to use the Trial Software at any time in its sole discretion. Licensee shall return
`or destroy Licensee’s copy of the Trial Software upon termination of this Agreement
`for any reason. To the extent that any provision in this Section 4.1 is in conflict
`with any other term or condition in this Agreement, this Section 4.1 shall supersede
`such other term(s) and condition(s) with respect to the Trial Software, but only to
`the extent necessary to resolve the conflict. LICENSEE ACKNOWLEDGES THAT THE TRIAL
`SOFTWARE MAY (i) HAVE LIMITED FEATURES, (ii) FUNCTION FOR A LIMITED PERIOD OF TIME,
`OR (iii) HAVE OTHER LIMITATIONS NOT PRESENT IN NON-TRIAL SOFTWARE. NOTWITHSTANDING
`ANYTHING TO THE CONTRARY, THE TRIAL SOFTWARE IS PROVIDED TO LICENSEE BY ADOBE ON AN
`AS IS BASIS, AND ADOBE DISCLAIMS ALL WARRANTY OR LIABILITY OBLIGATIONS TO LICENSEE
`OF ANY KIND.
`
`4.2 Not For Resale Software. This Section 4.2 applies only if Licensee has obtained
`a valid license to evaluate Software as Not For Resale Software or NFR Software as
`separately provided in writing by Adobe or as indicated by the License Key Licensee
`uses to install the Software.
`
`4.2.1 License. Licensee may (a) install the Not For Resale Software on Computers
`within Licensee’s Internal Network and (b) permit only Authorized Users to use the
`Not For Resale Software (and electronic document, content and other materials
`generated by or processed with the Not For Resale Software) within Licensee’s
`Internal Network for the sole purpose of determining whether to purchase a license
`to the Not For Resale Software and not for any revenue generation, commercial
`activity or other productive business purpose. Licensee is not permitted to use the
`Not For Resale Software (including its output) directly or indirectly with any
`Production Software or Development Software (or the output from such software).
`
`4.2.2 Limitations. Adobe reserves the right to terminate Licensee’s license to use
`the Not For Resale Software at any time in its sole discretion. Licensee shall
`return or destroy Licensee’s copy of the Not For Resale Software upon termination of
`this Agreement for any reason. To the extent that any provision in this Section 4.2
`is in conflict with any other term or condition in this Agreement, this Section 4.2
`shall supersede such other term(s) and condition(s) with respect to the Not For
`Resale Software, but only to the extent necessary to resolve the conflict.
`NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE NOT FOR RESALE SOFTWARE IS PROVIDED TO
`LICENSEE BY ADOBE ON AN AS IS BASIS, AND ADOBE DISCLAIMS ALL WARRANTY OR LIABILITY
`OBLIGATIONS TO LICENSEE OF ANY KIND.
`
`5. 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.
`
`6. Updates.
`
`If the Software is an upgrade or update to a previous version of the Software,
`Licensee must possess a valid license to such previous version in order to use such
`upgrade or update. All upgrades and updates are provided to Licensee subject to the
`terms of this Agreement on a license exchange basis. Licensee agrees that by using
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`an upgrade or update Licensee voluntarily terminates Licensee’s right to use any
`previous version of the Software. As an exception, Licensee may maintain
`installations of previous versions of the Software on Licensee’s Computers for a
`reasonable period of time (but not to exceeding ninety (90) days) after Licensee
`obtains the upgrade or update to assist Licensee in the transition to the upgrade or
`update, provided that Licensee’s right to such simultaneous installations does not
`constitute an increase in the number of copies, licensed amounts or scope of use
`granted to Licensee hereunder. Any obligations that Adobe may have to support
`previous versions during the license term may end upon the availability of this
`update.
`
`7. WARRANTY.
`
`7.1 Limited Warranty. Except as may be otherwise provided in Sections 13 and 15,
`Adobe warrants to Licensee that the Software will perform substantially in
`accordance with the Documentation for the ninety (90) day period following shipment
`of the Software when used on the recommended operating system, platform and hardware
`configuration. Non-substantial variation of performance from the Documentation does
`not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO TRIAL
`SOFTWARE (AS IDENTIFIED IN SECTION 4), NOT FOR RESALE SOFTWARE (AS IDENTIFIED IN
`SECTION 4), PRE-RELEASE SOFTWARE (AS IDENTIFIED IN SECTION 14), DEVELOPMENT
`SOFTWARE, SAMPLE APPLICATION CODE, PATCHES, FONT SOFTWARE CONVERTED INTO OTHER
`FORMATS, OR TO SOFTWARE THAT HAS BEEN ALTERED BY LICENSEE, TO THE EXTENT SUCH
`ALTERATION CAUSED A DEFECT. All warranty claims must be made within the ninety (90)
`day period described above. If the Software does not substantially perform as
`warranted above, the entire liability of Adobe and its affiliates and Licensee’s
`exclusive remedy shall be limited to either, at Adobe’s option, replacement of the
`Software or refund of the license fee paid to Adobe for the Software, whereupon the
`license to such Software shall automatically terminate. THE LIMITED WARRANTY SET
`FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE
`ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
`
`7.2 DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY ADOBE
`AND ITS AFFILIATES AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ADOBE’S, ITS
`AFFILIATES’ OR SUPPLIERS’ BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED
`WARRANTY, AND ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT THE SAME
`CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO LICENSEE IN LICENSEE’S
`JURISDICTION, ADOBE AND ITS AFFILIATES AND SUPPLIERS PROVIDE THE SOFTWARE AS-IS AND
`WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS,
`REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW,
`CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO
`PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION,
`MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR
`PURPOSE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS. The
`provisions of Section 7.2 and Section 8 will survive the termination of this
`Agreement, howsoever caused, but this will not imply or create any continued right
`to use the Software after termination of this Agreement.
`
`8. LIMITATION OF LIABILITY.
`
`EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE AND AS OTHERWISE PROVIDED IN
`SECTIONS 13 AND 15, IN NO EVENT WILL ADOBE OR ITS AFFILIATES OR SUPPLIERS BE LIABLE
`TO LICENSEE FOR ANY LOSS, 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 LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING
`LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN
`LICENSEE’S JURISDICTION. ADOBE’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND
`SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT
`PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A
`FU