ADOBE SYSTEMS INCORPORATED

 

ADOBE® INMARKET TOOLKIT LICENSE AGREEMENT

NOTICE TO USER:

THIS AGREEMENT IS WITH ADOBE SYSTEMS INCORPORATED ("ADOBE"), A U.S.-BASED COMPANY, AND YOU AGREE THAT YOUR RELATIONSHIP WITH ADOBE WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, UNITED STATES, AS SET FORTH IN SECTION 12.3.

PLEASE READ THIS ADOBE INMARKET TOOLKIT LICENSE AGREEMENT (THE "AGREEMENT") CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE TOOLKIT (DEFINED BELOW) YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE PROVISIONS ON: CHOICE OF LAW IN SECTION 12.3, ASSIGNMENT IN SECTION 12.6; WARRANTIES AND DISCLAIMERS IN SECTION 8; LIMITATION OF LIABILITY IN SECTION 10; AND CONNECTIVITY AND PRIVACY IN SECTION 4.4. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE TOOLKIT AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE TOOLKIT. VISIT http://www.adobe.com/support FOR TERMS OF AND LIMITATIONS ON RETURNING THE TOOLKIT FOR A REFUND, IF APPLICABLE.

ADOBE AND ITS SUPPLIERS OWN ALL INTELLECTUAL PROPERTY IN THE TOOLKIT. THE TOOLKIT IS LICENSED, NOT SOLD. ADOBE PERMITS YOU TO COPY, DOWNLOAD, INSTALL, USE, OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OR INTELLECTUAL PROPERTY OF THE TOOLKIT ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. USE OF SOME ADOBE AND SOME THIRD PARTY MATERIALS AND SERVICES INCLUDED IN OR ACCESSED THROUGH THE TOOLKIT MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS TYPICALLY FOUND IN A SEPARATE LICENSE AGREEMENT, TERMS OF USE OR "READ ME" FILE LOCATED WITHIN OR NEAR SUCH MATERIALS AND SERVICES OR AT http://www.adobe.com/go/thirdparty.

THE TOOLKIT MAY CAUSE YOUR TOOLKIT-ENABLED APPLICATION TO AUTOMATICALLY CONNECT TO THE INTERNET. SEE SECTION 4.4 FOR ADDITIONAL INFORMATION.

THE TOOLKIT MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING. THIS TECHNOLOGY MAY CAUSE YOUR TOOLKIT-ENABLED APPLICATION TO AUTOMATICALLY CONNECT TO THE INTERNET AS DESCRIBED IN SECTION 4.4. ADDITIONALLY, ONCE CONNECTED, THE TOOLKIT-ENABLED APPLICATION MAY TRANSMIT THE USER'S COMPUTER SERIAL NUMBER TO ADOBE AND IN DOING SO MAY PREVENT USES OF THE TOOLKIT-ENABLED APPLICATION THAT ARE NOT PERMITTED.

1. ACKNOWLEDGEMENT. By selecting 'I Agree' below, you agree to the terms and conditions contained herein and to the Adobe.com Terms of Use (http://www.adobe.com/misc/terms.html), incorporated by reference and you state that you have all legal rights and powers needed to give the statements, assurances and commitments in this document and to agree to it as a validly executed, legal instrument. It shall be binding on you and on your heirs, executors and assigns. If you are entering into this Agreement on behalf of a company, "you" means you and that company, and you represent and warrant that you have all necessary authority to bind that company to the terms and conditions of this Agreement.

2. DEFINITIONS. As used in this Agreement:

2.1 "Adobe Licensing and Payment Technology" means the licensing and payment technology and software owned, licensed, or developed by Adobe.

2.2 "Affiliate" means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where "control" means ownership of fifty percent (50%) or more of the outstanding voting securities.

2.3 "AIR Marketplace" means Adobe's online market, or any successor sites thereto, for distributing applications based on or using the Adobe AIR technology.

2.4 "Application Programming Interface" or "API" means a set of standard software interrupts, protocols and data formats included in the Toolkit (defined below) that interface with certain payment and licensing technologies, including but not limited to the Adobe Licensing and Payment Technology, and that are designed to facilitate development of a Toolkit-Enabled Application.

2.5 "Documentation" means the operating manuals, including a description of the functions performed by the Adobe Licensing and Payment Technology, user instructions, technical literature and all other related printed materials, which may, from time to time, be supplied to you by Adobe to facilitate the use and application of the Adobe Licensing and Payment Technology and the Toolkit.

2.6 "Intellectual Property Rights" means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.

2.7 "Third Party Distribution Channel" means a third party online resource for publishing and distributing Applications which is administered by a Third Party Distributor (defined below) and which you have access to through use of the Toolkit. Third Party Distribution Channels may be subject to separate and/or additional terms and conditions and/or separate payment technologies and terms.

2.8 "Third Party Distributor" means the entity responsible for facilitating and operating a Third Party Distribution Channel.

2.9 "Toolkit" means the software development kit and development tools (in object code format), including any Adobe Licensing and Payment Technology, APIs, and Documentation included therewith, set forth in Exhibit A.

2.10 "Toolkit-Enabled Application" means your application software, code, material, text, data and other works of authorship available to End Users on either a trial or commercial basis and complies with the requirements of this Agreement.

3. LICENSE AND RESTRICTIONS.

3.1 License. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of all applicable Fees (as defined below), if any, Adobe grants you a limited, non-transferable, non-exclusive, license, without the right to grant sublicenses, to (a) use, perform and display the Toolkit (in object code format only), solely for its internal business purpose of developing and testing Toolkit-Enabled Applications, and (b) copy and distribute compliant Toolkit-Enabled Applications. You may make only one (1) copy of the Toolkit for backup and archival purposes, provided, however, that you shall reproduce on any such copy of the Toolkit Adobe's copyright notice and any other proprietary rights notices or logos of Adobe or any third party supplier or licensor that are on the original copy. During the Initial Term (defined below) of the Agreement, Adobe will provide to you access to the Toolkit at no cost. In the future, Adobe might modify this program and charge an annual membership fee (the "Fees") for which an amendment to this Agreement will need to be executed by the parties.

3.2 Restrictions. Except as expressly permitted herein, you shall not copy, reproduce, display, perform, modify or make derivative works of the Toolkit, including, without limitation, any APIs or Documentation included therein or therewith. You shall not decompile, disassemble or otherwise reverse engineer the Toolkit or any portion thereof, or otherwise attempt, directly or indirectly, to derive the source code or other trade secrets embodied in the Toolkit. You have no right under this Agreement to, and will not in the absence of a separate agreement granting such right, market, sell, license, sublicense, distribute, act as a service bureau, rent, loan or otherwise transfer the Toolkit or any Toolkit-Enabled Application developed by or for you without Adobe's prior approval as set forth in Section 4.2.

3.3 Delivery. Adobe shall make the Toolkit available to you as a download, which will be deemed irrevocably accepted upon such delivery.

3.4 Updates and Upgrades. If Adobe provides an update or upgrade to the Adobe Licensing and Payment Technology or Toolkit, you will use only the most-current version of the Adobe Licensing and Payment Technology or Toolkit.

4. DEVELOPMENT.

4.1 Toolkit-Enabled Application. You will develop trial and/or commercial versions of any Toolkit-Enabled Application in accordance with the terms set forth herein. You will not create or distribute any software, including any Toolkit-Enabled Application that (a) interoperates with the Toolkit in a manner not approved and documented by Adobe, or (b) includes software licensed under the GNU General Public License, the GNU Lesser General Public License or any other license that could require disclosure, distribution or licensing of all or any part of the Toolkit in source code form.

4.2 Adobe Approval. For details on the Adobe approval process for Toolkit-Enabled Applications, please see the current Adobe approval guidelines and standard policies which are available at http://www.adobe.com/go/approvalguidelines (or successor sites thereto.) Such guidelines and policies may be updated from time to time by Adobe.

4.3 Marketing Requirements and Restrictions. You may not (a) make any statement that any Toolkit-Enabled Application or other software is "certified" or otherwise guaranteed or approved by Adobe or (b) use Adobe's name or trademarks to market any Toolkit-Enabled Application or other software without prior written approval from Adobe, except as expressly allowed herein and according to Adobe's trademark usage guidelines, attached as Exhibit B. The parties acknowledge and agree that Adobe is not liable for any software update, support, or other liability that may arise from your distribution of the Toolkit-Enabled Application as permitted herein. You are solely responsible for any and all licensing and other required documentation associated with or to be supplied to your end users and/or customers ("End Users") with the Toolkit-Enabled Application, including but not limited to your privacy policy. You will be responsible for providing End Users with an End User License Agreement which expressly states that: (x) you are solely responsible for supporting the Toolkit-Enabled Application and (y) that Adobe bears no responsibility for the Toolkit-Enabled Application or any use of the Toolkit-Enabled Application or for supporting the Toolkit-Enabled Application.

4.4 Connectivity and Privacy. The Toolkit may cause the Toolkit-Enabled Application to automatically connect to the Internet and to communicate with Adobe for purposes that may include providing you with additional information, features and functionality. The Toolkit may cause your Toolkit-Enabled Application to automatically connect to the Internet to check for updates that are available for automatic download to your Toolkit-Enabled Application and to let Adobe know the Toolkit is successfully installed. Whenever the Toolkit makes an Internet connection and communicates with an Adobe website, the Adobe Privacy Policy (http://www.adobe.com/misc/privacy.html) shall apply. Additionally, unless you are provided with separate terms of use at that time, the Adobe.com Terms of Use (http://www.adobe.com/misc/copyright.html) shall apply. Please note that the Adobe Privacy Policy allows tracking of website visits and it addresses in detail the topic of tracking and use of cookies, web beacons and similar devices. Adobe does not have access to or control over features that a third party may use and the information practices of third parties and third party websites are not covered by the Adobe Privacy Policy or the Adobe.com Terms of Use.

5. ACKNOWLEDGEMENT. You understand and agree that this Agreement shall not be construed as prohibiting Adobe from acquiring, licensing, developing for itself (or having others develop for it), marketing, and/or distributing products that are similar or competitive to your products or Toolkit-Enabled Application. In the absence of a separate written agreement to the contrary, Adobe will be free to use any information you provide to Adobe for any purpose, subject to your applicable patents and/or copyrights.

6. TRADEMARKS; BRANDING.

6.1 Your Trademarks. Subject to the terms and conditions of this Agreement, You hereby grant to Adobe a limited, non-exclusive, non-sublicenseable, royalty-free, worldwide license to use your trademarks, service marks, trade names, logos or other commercial or product designations (collectively, "Marks") for the purposes of promoting the Toolkit-Enabled Applications.

6.2 Adobe Trademarks. AIR® and Adobe® AIR® are trademarks of Adobe that may not be used by others except for fair referential use or under a written license from Adobe. Please refer to the trademark usage guidelines for the AIR and Adobe AIR trademarks, attached as Exhibit B. Except as for those rights expressly granted herein, you have no right to use any Adobe trademarks under this Agreement.

7. OWNERSHIP.

7.1 Adobe. Adobe and its respective suppliers and licensors shall retain all right, title and interest in and to the Adobe trademarks, Toolkit, the Adobe Licensing and Payment Technology and all portions thereof, including, without limitation, all Intellectual Property Rights thereto. Other than the license expressly granted in Section 3, you receive no right, title or interest in or to the Toolkit.

7.2 You. You retain all right, title and interest in and to the Toolkit-Enabled Application, (except for any portion of the Toolkit, any Adobe Intellectual Property Rights, or any third party software incorporated or embodied therein), including all Intellectual Property Rights related thereto.

8. WARRANTIES AND DISCLAIMERS.

8.1 No Warranty. ADOBE PROVIDES THE ADOBE TRADEMARKS, THE TOOLKIT AND THE ADOBE LICENSING AND PAYMENT TECHNOLOGY TO YOU "AS IS" AND DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS OF ANY KIND TO YOU. ADOBE AND ITS SUPPLIERS MAKE NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE ADOBE TRADEMARKS, THE TOOLKIT, AND THE ADOBE LICENSING AND PAYMENT TECHNOLOGY INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, EVEN IF ADOBE OR ANY COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE TOOLKIT-ENABLED APPLICATION AND YOUR USE OF THE TOOLKIT AND ADOBE LICENSING AND PAYMENT TECHNOLOGY. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY.

YOU ACKNOWLEDGE THAT THE TOOLKIT AND ADOBE LICENSING AND PAYMENT TECHNOLOGY MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM OR OTHER FAILURES AND DATA LOSS. THE USE OF THE TOOLKIT, THE ADOBE LICENSING AND PAYMENT TECHNOLOGY AND/OR ALL TOOLKIT-ENABLED APPLICATIONS IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. ADOBE ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER IN CONNECTION WITH YOUR USE OF THE TOOLKIT OR ADOBE LICENSING AND PAYMENT TECHNOLOGY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ADOBE OR THROUGH OR FROM THE TOOLKIT OR ADOBE LICENSING AND PAYMENT TECHNOLOGY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. ANY AGREEMENTS OR TRANSACTIONS ENTERED INTO WITH THIRD PARTIES ARE AT YOUR OWN RISK.

8.2 Toolkit-Enabled Application Warranty. You represent and warrant that the Toolkit-Enabled Application will (a) not contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data, or personal information, (b) when used in the manner in which it is intended, not violate any law, statute, regulation, or rights (including without limitation, any laws, regulations or rights respecting intellectual property, computer spyware, privacy, export control, unfair competition, antidiscrimination, or advertising), and (c) not interfere with the operability of Adobe or third-party software or systems.

9. INDEMNITY. You shall, at your own expense, indemnify, defend and hold Adobe harmless from and against any and all claims, costs, fees (including reasonable attorneys' fees), damages, liabilities and expenses to the extent such claim arises out of: (a) any breach of this Agreement by you, (b) any allegation that any Toolkit-Enabled Application or combination of any Toolkit-Enabled Application with the Toolkit or any portion thereof or the Adobe Licensing and Payment Technology infringes any third party Intellectual Property Rights, (c) any breach or alleged breach of any representations and warranties made by you concerning any aspect of the Toolkit-Enabled Application, (d) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Toolkit or Adobe Licensing and Payment Technology, and (e) any End User allegation related to the Toolkit-Enabled Application, including but not limited to any allegations based on a product liability claim.

10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ADOBE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ADOBE'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE LESSER OF $100 OR THE AMOUNTS RECEIVED BY ADOBE IN CONNECTION WITH THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. Each party acknowledges that the fees and amounts payable set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that the other party would not enter into this Agreement without these limitations on its liability. Each party agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this Agreement. Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply.

11. TERM; TERMINATION.

11.1 Initial Term. The term of this Agreement shall commence on the Effective Date and will continue for one (1) year (the "Initial Term") unless earlier terminated as set forth herein. Provided that you pay all required Fees, if any, when due, the Initial Term shall be automatically extended for successive one (1) year periods (each, an "Extension Term"), unless either party delivers to the other party written notice of its intention not to extend the Agreement at least thirty (30) days prior to the end of the Initial Term or the then-current Extension Term. The Initial Term, together with any Extension Term, is deemed the "Term."

11.2 Termination by Adobe for Cause. Adobe may terminate this Agreement immediately if you are in material breach of any term or condition of this Agreement.

11.3 Termination by Adobe for Convenience. Adobe may terminate this Agreement for any reason or no reason whatsoever upon fifteen (15) days' prior written notice.

11.4 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) you shall immediately cease all use of the Adobe Licensing and Payment Technology and the Toolkit and shall return to Adobe any and all copies of the Adobe Licensing and Payment Technology and the Toolkit, (b) if applicable, the AIR Marketplace may fulfill orders from End Users for Toolkit-Enabled Applications for up to three (3) months after the effective date of expiration or termination and (c) if applicable, Toolkit-Enabled Applications may be immediately removed from the AIR Marketplace and any Third Party Distribution Channel. Sections 1, 2, 3.2, 5, 7, 8, 9, 10, 11.4, and 12 shall survive the expiration or termination of this Agreement for any reason.

12. GENERAL.

12.1 Independent Contractors. Each party hereto is an independent contractor of the other and neither shall be deemed an employee, franchisee, agent, partner or joint venture of the other, and nothing contained herein shall be construed as creating any agency, employment relationship, franchise, partnership, principal-agent or other form of joint enterprise between the parties. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.

12.2 Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are sent either by facsimile, overnight messenger delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested to such address as each party may designate pursuant to this notice provision.

12.3 Governing Law; Venue. This Agreement shall be governed by the laws of the State of California, and the parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts located in Santa Clara County, California without regard to any conflicts of laws principles that would require the application of the laws of another jurisdiction. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including, without limitation, reasonable attorneys' fees. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

12.4 Export. You acknowledge and agree that neither the Toolkit nor the Toolkit-Enabled Application is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the "Export Laws") and that you will comply with the Export Laws. You will not ship, transfer, export, or re-export either the Toolkit nor the Toolkit-Enabled Application, 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"), (2) 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 (each, a "Prohibited Use"), or (3) 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, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Toolkit or the Toolkit-Enabled Application. You represent and warrant that (i) you are not a citizen of, or located within, an Embargoed Country, (ii) will not use the Toolkit or the Toolkit-Enabled Application for a Prohibited Use, and (iii) are not a Sanctioned Party. All rights to use the Toolkit are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

12.5 U.S. Government End Users. The Toolkit is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Toolkit with only those rights set forth therein.

12.6 Assignment. You shall not assign, delegate, convey or transfer, directly or indirectly, by operation of law or otherwise, this Agreement or its rights and obligations hereunder without the prior written consent of Adobe, and any attempt to do so in contravention of this Section 12.6 shall be null and void. For the avoidance of doubt, a change of control shall be deemed an assignment for the purposes of this Section 12.6 and this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each party's respective successors and permitted assigns.

12.7 Remedies. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by you may cause Adobe irreparable damage for which recovery of money damages shall be inadequate, and that Adobe shall therefore be entitled to obtain timely injunctive relief to protect Adobe's rights under this Agreement in addition to any and all remedies available at law. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.

12.8 Waiver; Severability. All waivers will be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Section 10 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (Warranties and Disclaimers).

12.9 Entire Agreement. This Agreement, together with any Exhibits hereto, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. If there is any conflict between the Adobe.com Terms of Use and this Agreement, the terms of this Agreement shall take precedence in relation to the Toolkit.

12.10 Release. You will not hold Adobe responsible for any damages, costs or liabilities of any kind arising out of or in connection with your use of the Toolkit or any End User or third party's use of your Toolkit-Enabled Application, and you hereby release Adobe, jointly and separately, from any and all such claims. If you are a California resident, you waive California Civil Code § 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

12.11 Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.

InMarket Toolkit_WWSDK-en_US-20101015_1413

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Exhibit A

 

TOOLKIT

License Manager Library - binary (file name: license.swc)

The License Manager provides the ability to add time-based trials and application purchasing to a Flex based AIR application. A client application utilizing the License Manager will connect and communicate securely with Adobe servers. APIs are provided to check the licensing state. The License Manager can be configured for testing.

Documentation - online
Documentation is provided covering various topics including, but not limited to:

• About the InMarket Program
• Getting Help
• InMarket Program FAQ
• InMarket Developer FAQ
• InMarket End-user FAQ

Example code - source (Flex project .zip files)
Example code is provided to show the developer suggested ways to utilize some of the License Manager APIs. Sample code is provided covering various examples including, but not limited to:

• Simple Licensing
• Timer-based Licensing

Example code description recordings - Videos (.flv files)
Recordings are provided which explain the Example code. The recordings can be used in conjunction with the provided Documentation and Example code. The recordings cover various coding examples including, but not limited to:

• Simple Licensing
• Timer-based Licensing

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EXHIBIT B

 

TRADEMARK USAGE GUIDELINES FOR THE AIR®, ADOBE AIR® TRADEMARKS

AIR® and Adobe® AIR® are trademarks of Adobe that may not be used by others except for fair referential use or under a written license from Adobe.

• You may not incorporate the AIR or Adobe AIR trademark, or any other Adobe trademark, in whole or in part, in the title of your developer application or in your company name, domain name or the name of a service related to the Adobe AIR runtime software.
• You may indicate the interoperability of your developer application with the Adobe AIR runtime software, if true, by stating, for example, "works with Adobe® AIR®" or "for Adobe® AIR®".
• You may use the AIR or Adobe AIR trademark to refer to your developer application as an "AIR application" or an "Adobe AIR application" only as a statement that your developer application interoperates with the Adobe AIR runtime software.

Examples:

CORRECT:

• XYZ COOL APP for Adobe® AIR®
• XYZ KILLER APP an Adobe® AIR® application
• XYZ GREAT APP An application for Adobe® AIR®
• XYZ OUTSTANDING APP Works with Adobe® AIR®

In the examples above, your own brand must appear larger and more conspicuous than the Adobe trademark, so that no one will be confused or mislead as to the source of your product.

INCORRECT:

• XYZ AIR WIDGETMAKER
• ABC ADOBE AIR WIDGETMAKER
• AIRrific
• AIRCool
• pAIRapp

Please use the appropriate trademark notices when you refer to the AIR or Adobe AIR trademark:

Adobe, Adobe AIR and AIR are either trademarks or registered trademarks of Adobe Systems Incorporated in the United States and/or other countries.

Your use of Adobe trademarks also must comply with Adobe's general trademark guidelines available on the company's web site at http://www.adobe.com/misc/trade.html and updates of those guidelines as made available periodically.

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