Application to Become a European Authorized Education Reseller
Receive authorization to be a European Education Shrinkwrap ONLY reseller by completing the required fields and agreeing to the terms and conditions of the Education Reseller Authorization Agreement included below.
BEFORE YOU CLICK ON THE "I ACCEPT AND AGREE" BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY CLICKING ON THE "I ACCEPT AND AGREE" BUTTON AND BY PROVIDING YOUR DEALER APPLICATION INFORMATION TO ADOBE YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT, IF YOUR APPLICATION IS APPROVED AND ACCEPTED BY ADOBE.
NO BINDING AGREEMENT SHALL COME INTO EXISTENCE UNTIL SUCH TIME AS YOU ARE NOTIFIED IN WRITING BY ADOBE THAT YOUR APPLICATION HAS BEEN ACCEPTED AND THAT YOU HAVE BEEN AUTHORISED AS AN ADOBE EDUCATION DEALER. THIS IS THE EFFECTIVE DATE OF THE AGREEMENT (“EFFECTIVE DATE”).
IF YOU REQUIRE CLARIFICATION WITH RESPECT TO ANY POINT OF THE AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE CONTACT YOUR DISTRIBUTOR OR YOU CAN FORWARD YOUR QUESTION(S) TO AN ADOBE ACCOUNT MANAGER.
FOR THE PURPOSES OF THIS AGREEMENT YOU ARE KNOWN AS “THE DEALER” OR THE “EDUCATION DEALER”.
WHEREAS, Adobe (Adobe Systems Software Ireland Limited, 4-6 River Walk, City West Bsuiness Campus, Saggart, Dublin D24, Ireland)is the owner and developer of Adobe Educational Software Products; and
WHEREAS, Dealer wishes to be appointed as an Adobe Authorised Education Dealer so as to make the Educational Software Products available to certain of Dealer’s customers who are Educational End Users under the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. The following terms shall have a defined meaning as used in this Agreement: (a) “Appropriate Identification” means the identification set forth on Exhibit A. (b) “Authorised Distributor” means a distributor authorised by Adobe to carry and distribute the Educational Software Products directly to Authorised Education Dealers and Educational End Users and from whom Dealer elects to order Educational Software Products from time to time as stipulated in this Agreement. (c) “Educational End User” or “End User”means an Individual and/or Educational Institution from which Dealer is permitted to accept orders for Educational Software Products, as defined by Adobe in Exhibit B. (d) “Educational Institutions” or “Institution”means an institution, located in the Territory, acquiring Educational Software Products for use by its faculty, staff, or students but not for further distribution or transfer to third parties, which is defined by Adobe in Exhibit B. Notwithstanding the forgoing, an Institution shall no longer be deemed an Educational Institution under this Agreement from the date of Adobe’s written notice to Dealer, given in Adobe’s sole discretion, that the Institution is not approved as an Educational Institution. Examples of qualified and unqualified Educational Institutions are set forth on Exhibit B. (e) “Educational Dealer” or “Dealer”means an institution located in the Territory as set forth herein which has signed the appropriate Adobe Authorised Education Dealer Agreement and received a confirmation e-mail regarding the appointment as an education dealer from Adobe, and is engaged in the distribution or Sale of computer products to customers within the education sector such as Educational End Users. (f) “Educational Software Products” means (i) the products set forth in the current Adobe Educational Software Products price list made available by Adobe to Authorised Distributors from time to time (“Price List”), consisting of one copy of the respective software program in object code (“Software”), supporting documentation (“User Documentation”), and all other related materials, if any, directly supplied to a customer within the education sector such as an Educational End User. No Adobe product that contains hardware components shall be considered an Educational Software Product under this Agreement. (g) “Individual” means an individual who acquires Educational Software Products for his or her own personal use but not for further distribution or transfer and who has presented to Dealer Appropriate Identification of current status as a member of the faculty or staff of an Educational Institution or a student at an Educational Institution. Examples of qualified and unqualified Individuals are set forth on Exhibit B. (h) “Purchase” or “Sale” means the licensing of Educational Software Products. (i) “Territory” means all member states of the European Union or an EFTA member state. (j) “End User License Agreement” or “EULA” means the shrinkwrap or clickwrap agreement which contains the terms of the license Adobe grants to End Users. (k) “Trademarks” means the “Adobe” name, stylized form of the Adobe name, the Adobe logo, and any product logo, brand, signature or other mark for any Software Product as identified by Adobe. (l) “Intellectual Property Right” means any patent, copyright, design right, trade name, trademark, trade secret, know-how, mask work, or any other intellectual property right or proprietary information or technology, whether registered or unregistered. (m) “Reports” mean those electronic data interchange reports provided by Dealer to Authorised Distributor setting forth (a) complete and accurate information relating to Sales of Educational Software Products, the quantities of Educational Software Products Sold by Dealer by each title for such report period, the identities of all Educational End Users, and any other data or information requested by Authorised Distributor and/or Adobe. (n) “Personal Data” means a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number or national identification number, credit card number, bank information, or customer or account number, or any other piece of information that (i) allows the identification of a natural person, or (ii) relates to financial data of a natural person.
2. Appointment. Criteria for Appointment. Dealer has represented and demonstrated to Adobe that it meets and will continue to meet the following criteria for appointment: (i) Dealer’s business is, among other, the distribution of (education) software products to end users in the Territory. Dealer has proven experience demonstrated by at least two years of this type of trading prior to the Effective Date. Dealer’s business in the Educational Software Products is sufficient to meet the volume requirements specified in Clause 6 of this Agreement. (ii) Dealer has the in-house facilities, including computerised systems and staff who are adequately trained, to provide data and process orders as specified in this Agreement. (iii) Adobe must be satisfied that Dealer will be able to meet its obligations under Clause 6 of this Agreement. (iv) Dealer has actively promoted the use of legal software.
Subject to the terms and conditions set forth herein, Adobe hereby appoints Dealer and Dealer hereby accepts the appointment as an Authorised Education Dealer of the Adobe Educational Software Products in the Territory for the term of this Agreement. The appointment is non-exclusive and non-transferable. Future Educational Software Products are deemed added to this Agreement at such time as they are added to the current Price List. Adobe has the right to discontinue the distribution or availability of any Educational Software Product without notice.
3. Dealer Rights and Restrictions.
(a) Dealer Rights. Dealer shall have the right to place orders with an Authorised Distributor for Educational Software Products in the Territory for direct delivery by Authorised Distributor to customers within the education sector such as Educational End Users so long as it remains in compliance with all of the following conditions: (i) Dealer does not permit the distribution of Educational Software Products outside the Territory; (ii) Educational Software Products are distributed only pursuant to the terms and conditions of the then current End-User License Agreement (“End User License Agreement”); (iii) Educational Software Products are distributed solely for use within the education sector by Educational End Users; (iv) Dealer requires each Educational End User to provide Appropriate Identification prior to Purchase and agrees to provide proof of educational status and verification thereof to Authorised Distributor; (v) Dealer limits orders by Individuals to one (1) copy of each Educational Software Product per academic year; (vi) all Educational Software Products are shipped to Educational End Users for use within the education sector directly from an Authorised Distributor, and Dealer refrains from shipping Educational Software Products to the Educational End Users and from offering downloads via electronic software download (ESD);(vii) Dealer accepts orders for Educational Software Products only from customers within the education sector such as Educational End Users and; (viii) Dealer provides adequate service and support in connection with the distribution of the Educational Software Products. (ix) notwithstanding the foregoing provisions Dealer may, if required, distribute Educational Software Products to and accept orders from other Dealers (as defined in Clause 1 (e)) which have signed the appropriate Adobe Authorised Education Dealer Agreement with Adobe or from Authorised Distributors for re-sale to customers within the education sector such as Educational End Customers, provided that such a distribution is in accordance with the terms of this Agreement including, without limitation, Section 3 (a) and (b).
(b) Dealer Prohibitions. - Dealer shall not be entitled to grant any form of site license for those Educational Software Products described in subpart (i) of Section 1(f) or place an order for the same.
- Dealer agrees not to place orders for the distribution of Educational Software Products without prior written approval from Adobe; (i) for Educational End Users directly by Dealer without the use of an Authorised Distributor, (ii) by rental or lease, (iii) in bulk for redistribution, (iv) with knowledge or reason to know that the Educational Software Products will be transported for use outside the Territory, or (iv) on behalf of any Educational Dealer or other third party other than as permitted herein.
-Dealer shall not be entitled to hold any inventory of Educational Software Products, unless Adobe has at its sole discretion granted an exception which is documented in a written amendment to this Agreement signed by Adobe and Dealer.
(c) Warranties by Dealer. Dealer agrees that it shall not make any warranty, express or implied, on behalf of Adobe.
(d) Rights and Restrictions of Dealer. Without prejudice to the provisions of section 3 (a) (vi) above, Dealer shall not alter the design or contents of any Educational Software Product without Adobe’s prior written approval. Without prejudice to the foregoing, Dealer shall not remove any item or document from the Educational Software Product package without Adobe’s prior written approval.
(e) DEALER Restrictions on Copying, Modifying and Decompiling. DEALER AGREES NOT TO TRANSLATE THE SOFTWARE INTO ANOTHER COMPUTER LANGUAGE, IN WHOLE OR IN PART. DEALER SHALL NOT MAKE OR HAVE MADE, IN WHOLE OR IN PART, ANY LOCALIZED VERSION OF ANY SOFTWARE PRODUCT OR USER DOCUMENTATION. Dealer shall not make copies of Software Products, except as provided herein, or make media translations of Education Software Products including, without limitation, the User Documentation, in whole or in part, without Adobe prior written approval, as applicable. Dealer shall not modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Education Software Products or any User Documentation. Nothing contained in the Agreement shall be interpreted so as to exclude or prejudice the rights (if any) of the Dealer or any End User under the European Directive 91/250 on the Legal Protection of Computer Programs (14 May 1991, OJ 1991(122/42) as implemented in the relevant jurisdiction) with respect to the Education Software Products.
4. Dealer Orders. The terms and conditions of this Agreement and any other terms and conditions established by the Authorised Distributors at their discretion, including without limitation those relating to orders, acceptance, price, shipment, payment (including payment of any taxes and late fees or charges), credit, delivery, returns and warranty service, shall apply to all orders submitted by Dealer to the Authorised Distributor. The foregoing shall not be construed to negate or supercede any limitation on Adobe’s liability as set forth in Sections 11 (“Consequential Damages Waiver”) and 12 (“Limitation of Liability”) of this Agreement. For the avoidance of doubt, the Price List shall not be binding upon Dealer and Authorised Distributor shall be entitled to freely determine the prices it elects to charge to Dealer for the Sale of Educational Software Products. Furthermore, Dealer shall be entitled to freely determine the prices it elects to charge to Educational End Users for the Sale of Educational Software Products.
5. Taxes and Duties. In addition to any payments due to an Authorised Distributor, Dealer may be required to pay any taxes, duties, or other amounts, including state sales taxes, however designated, which are levied or based upon such payments as requested by the Authorised Distributor. Dealer agrees to provide each Authorised Distributor with a state resale certificate, if required by any state.
6. Dealer Obligations. (a) Qualification and Renewal. To obtain a Dealer’s appointment under this Agreement, Dealer agrees to complete and submit for approval a business plan to an Authorised Distributor and supply such other information that Authorised Distributor, in its sole discretion, reasonably requests of Dealer. To obtain a renewal appointment Dealer shall submit a new business plan and supply such further information as Authorised Distributor reasonably requests at least thirty (30) days prior to the expiration of this Agreement for approval by Authorised Distributor. Each Application submitted to Authorised Distributor (including without limitation all documents and materials requested thereby) in connection with this Agreement shall be completed truthfully, completely and accurately in all respects by Dealer. (b) Minimum Sales Commitments. Dealer shall have Sales of Adobe Educational Software Products of at least sixty thousand Euro (€60.000) per calendar year and at least fifteen thousand Euro (€15.000) per calendar quarter. In the event such Sales levels are not met in any two (2) consecutive calendar quarters, Adobe may, in Adobe’s sole discretion, immediately terminate this Agreement pursuant to Paragraph 10 (“Term and Termination”). (c) Dealer shall use the online Authorised Education Dealer support Center provided by Authorised Distributor. (d) Marketing. Dealer agrees to: (i) use its best efforts to market and distribute the Educational Software Products to Educational End Users, and agrees that its marketing and advertising efforts will be of high quality, in good taste, and will preserve the professional image and reputation of Adobe and the Educational Software Products; (ii) perform such further marketing activities as agreed between Authorised Distributor and Dealer; (iii) if Dealer uses an internet web site to market Educational Software Products, provide on such internet web site a hypertext link to a separate web page(s) dedicated primarily to promoting the Educational Software Products, which web page(s) provide accurate information (or links to page(s) with accurate information) of the qualifications for an Educational End User and the requirement to provide Appropriate Identification prior to any Purchase; (iv) include on the Web Site and in all its advertisements, brochures and other marketing materials referring to Adobe or to an Educational Software Product all applicable copyright, trademark and other proprietary notices as they appear on or in the Educational Software Products. Adobe will provide a reasonable amount of advertising material, as requested by Dealer, for use in Dealers efforts to market the Educational Software Products; (v) not to display Educational Software Products unless they are part of a special education-specific display and may not be advertised unless advertised in education-specific publications (e.g., local (campus) newspapers) nor display or advertise Educational Software Products as standard Adobe retail products; and (vi) segregate Educational Software Products from other Adobe retail products in the Dealer’s retail display, advertising, and merchandising. (e) Training and Support. Training may, at Adobes sole discretion, be provided by Adobe Authorised Distributor or any third party designated by Adobe. Dealer shall, at its cost, cause at least one (1) of its employees to be designated as an Adobe educational product representative as named as such in Dealer’s completed Application. Such representative shall be dedicated solely to educational Sales and responsible for maintaining a reasonable level of familiarity with Adobe’s Educational Software Products, programs and policies as established by Adobe, communicating Adobe’s policies, programs and procedures to other Dealer employees, and training Dealer’s other employees who are involved in Sales of Educational Software Products to Educational End Users. Dealer shall maintain one such representative so trained at each of its locations during the term of this Agreement and shall provide Adobe with access to such representative from time to time for training upon Adobe’s request. Dealer shall provide a level of product support for its Educational End Users equivalent to that provided by Adobe to its Dealers during the term of this Agreement. (f) Warranty Service. Dealer shall make appropriate arrangement with the Authorised Distributor to provide warranty service for all Educational Software Products. (g) Records. Except as otherwise permitted, Dealer shall require each Educational End User to provide Appropriate Identification. Dealer shall obtain either a photocopy of Appropriate Identification or a scanned version thereof sent as an e-mail attachment in pdf format to document each order. Dealer shall save photocopies of each Educational End User’s Appropriate Identification and authorization code emailed from Authorised Distributor and related records obtained at the time of order for a period of not less than two (2) years thereafter. (h) Reports. Along with each order Dealer shall submit to the Authorised Distributor the applicable Educational End User customer information indicating whether such Educational End User is an Educational Institution or Individual, Educational End User’s Educational Institution classification, the name of the Educational Institution with which such Individual is affiliated, and any other information requested by Adobe or its Authorised Distributor (the “Educational End User Information”). Adobe and its Authorised Distributor shall use such Educational End User Information solely for their own internal business purposes, including but not limited to verifying compliance by Dealer with the terms and conditions of this Agreement and any other Educational Dealer programs established by Adobe or its Authorised Dealers from time to time. In no event shall Adobe or its Authorised Distributor provide such Educational End User Information to any third party for purposes of direct marketing to Educational End Users. Dealer shall provide Authorised Distributor and/or Adobe with requested information on Educational End Users who do not wish to accept the terms of the End User License Agreement and who have returned Educational Software Products. Dealer shall provide the Reports to Authorised Distributor on a monthly basis or as frequently as required by Authorised Distributor. Dealer warrants that Dealer has the ability to track the information required by and generate in electronic data interchange format such Reports. Adobe shall have no obligation to request or remind Dealer to prepare or provide such Reports. (i) Audit. Upon request by Adobe, its authorised accounting firm or its Authorised Distributor, Dealer, at its site, shall promptly produce all records related in any way to Adobe and its products including without limitation purchase orders, sales records, invoices, general ledger, tax records, promotional materials, correspondence and supporting documentation sufficient to verify the performance of this Agreement. In the event of any non-compliance with the terms hereof, Dealer shall indemnify and hold Adobe harmless from any liability, claim, cause of action, loss, cost, or expense resulting there from. In addition, Adobe shall have the right to terminate this Agreement immediately without prior notice. (j) Anti-Piracy. Dealer agrees to promptly report to Adobe any known or suspected illegal use of Educational Software Products. By its execution of this Agreement, Dealer agrees that it will only deal in legal software. Adobe reserves the right to terminate this Agreement with immediate effect in the event that Dealer is found to be knowingly dealing in illegal copies of software, including without limitation any gray market or pirated copies. Such termination would be without prejudice to Adobe’s other remedies in the event that any Adobe products were involved. (k) Notification of Infringement. Dealer shall immediately inform Adobe by telephone, e-mail or facsimile, with written confirmation by mail, if it becomes aware of any facts indicating that any person, Educational End User, company or firm is infringing any Intellectual Property rights of Adobe and/or its licensors and suppliers or is engaging in unauthorised distribution of any Educational Software Product. (l) Mismatches. Dealer agrees to use best efforts to compare the identification provided by an Individual with the “ship to” or delivery address for such Individual. In no event shall Dealer accept or complete orders from Individuals with “ship to” or delivery address mismatches known to or should have been known by Dealer. (m) Data Protection. Dealer shall comply with all applicable data protection laws and regulations as well as with the information security requirements attached hereto as Exhibit C (Information Security) with respect to all Personal Data, and will cause its personnel, consultants, service providers and agents to comply with the provisions of this Clause and Exhibit C. (n) Compliance with Laws. Dealer will comply at all times with the requirements of all applicable laws, including but not limited to the United States Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.) in connection with its provision of services and distribution of Educational Software Products pursuant to this Agreement.
7. License to Use the Adobe Trademark; Non-Generic Advertising. (a) Adobe hereby grants to Dealer a non-exclusive, non-transferable, limited license to use “Adobe,” both the name and in the stylized form used by Adobe, and the applicable Educational Software Product trademarks (the “Trademarks”) solely in its distribution, advertising, and promotion for the Educational Software Products and on the Web Site. Dealer’s use shall be in accordance with Adobe’s policies regarding advertising and trademark usage as established from time to time by Adobe and made available by Adobe on its web site, located at www.adobe.com (or any successor Adobe web site), or otherwise as provided by Adobe to Dealer. Dealer agrees not to attach any additional trademarks, logos, or trade designations to the Educational Software Products or place any trademarks, logos or designations of any third parties on the page of the Web Site featuring the Educational Software Products. Dealer further agrees not to affix any Trademarks to products other than the genuine Educational Software Products. (b) Adobe’s Rights to the Trademarks. Dealer acknowledges that Dealer’s use of the Trademarks will not create in it, nor will it represent it has any right, title or interest in or to the Trademarks. Dealer acknowledges Adobe’s exclusive right to use of the Trademarks and agrees not to do anything to impair Adobe’s rights in the Trademarks. (c) Use of the Trademarks. With respect to any permitted use of the Trademarks, Dealer agrees to: (i) display the acknowledgment of trademark ownership adjacent to each Trademark the first time it is used; (ii) use the Trademarks so that each Trademark creates a separate and distinct impression from any other trademark that may be used or affixed by Dealer; (iii) identify Adobe as the owner of such Trademarks; and (iv) use the Trademarks in accordance with applicable law and Adobe's policies posted at its website regarding advertising and trademark usage as established from time to time. (d) Review of Trademark Use. At any time Adobe may upon fifteen (15) days notice, request and review copies of Education Software Products, and any accompanying packaging, labeling, advertising, press releases or other documentation, to monitor the quality of Education Software Products and use of Trademarks produced by Dealer. Adobe will notify Dealer within fifteen (15) days of receipt of such material of Adobe’s acceptance or its rejection, as applicable. If such material does not conform to Adobe's written guidelines for the use of Adobe Trademarks, Dealer will revise such material prior to shipment or release.
8. Ownership of Proprietary Rights and Nondisclosure. Dealer acknowledges that the structure and organization of the Educational Software Products is proprietary to Adobe, its licensors and suppliers and that Adobe and its licensors and suppliers retain exclusive ownership of the Educational Software Products, User Documentation and the Trademarks and all related packaging and materials. Dealer will take all reasonable measures to protect Adobe’s and its licensors and suppliers proprietary rights in the Educational Software Products. Except as provided herein, Dealer is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, franchises, or licenses with respect to the Educational Software Products. Dealer may be exposed to certain information concerning Adobe’s Educational Software Products and proposed new Educational Software Products, which are Adobe’s confidential and proprietary information (herein “Confidential Information”). Dealer agrees that, during and after the term of this Agreement, it will not use or disclose to any third party Confidential Information without the prior written consent of Adobe, except Dealer may disclose the Confidential Information to its employees as is reasonably necessary to allow Dealer to perform under this Agreement and to obtain the benefits thereof. This paragraph shall not apply to proposed new Educational Software Product information after such information is made public by Adobe.
9. Warranty / Indemnity. (a) Educational Software Products. Adobe warrants the Educational Software Products TO EDUCATIONAL END USERS ONLY pursuant to the terms and conditions of the End User License Agreement, and no warranty is extended to Dealer. (b) Proprietary Rights Indemnity. Adobe shall defend at its own expense any claim, suit, or proceeding brought against Dealer insofar as it is based on a claim that an Educational Software Product infringes a United States and European Union member state copyright or trademark. To qualify for such defense and payment the Dealer must: (i) give Adobe prompt written notice of any such claim; and (ii) allow Adobe to control, and fully cooperate with Adobe in, the defense and all related settlement negotiations. Adobe shall pay all damages, costs, and expenses finally awarded to third parties against Dealer but shall not be responsible for any compromise made without its consent. Upon notice of an alleged infringement or if in Adobe’s opinion such a claim is likely,Adobe shall have the right, at its option, to obtain the right to continue the distribution of Educational Software Product, substitute other computer software with similar operating capabilities, or modify the Educational Software Product so that it is no longer infringing or remove the Educational Software Product from this Agreement. In the event that none of the above options are reasonably available in Adobe’s opinion, Dealer’s sole and exclusive remedy shall be to terminate this Agreement. (c) Exclusions. The provisions of the foregoing indemnity shall not apply with respect to any instances of alleged infringement based upon or arising out of (i) use of Education Software Products in any manner for which they were not designed; (ii) use other than the uses and distributions designated by Adobe; (iii) use of any Education Software Products which have been modified by Dealer or any third party; or (iv) alleged “combined use” infringement of any Education Software Products in connection with or in combination with any equipment, devices or software which have not been supplied by Adobe. Notwithstanding any other provisions hereof, the foregoing indemnity shall not apply with respect to any infringement based on Dealer’s activities occurring subsequent to its receipt of notice of any claimed infringement unless Adobe shall have given Dealer written permission to continue to market and distribute the allegedly infringing Education Software Product. (d) Limitations and Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, ADOBE MAKES NO OTHER WARRANTIES RELATING TO THE EDUCATIONAL SOFTWARE PRODUCTS OR DEMONSTRATION PACKAGES, STATUTORY, EXPRESS, OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO PERSON IS AUTHORISED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE EDUCATIONAL SOFTWARE PRODUCTS OTHER THAN AS PROVIDED IN THIS PARAGRAPH AND IN THE END USER LICENSE AGREEMENT. DEALER SHALL MAKE NO OTHER WARRANTY, EXPRESS, OR IMPLIED, ON BEHALF OF ADOBE. (e) Indemnity by Dealer. (1) Dealer agrees to defend, indemnify and hold Adobe harmless from any claims, suits, proceedings, losses, liabilities, damages, costs and expenses (including without limitation Adobe’s reasonable attorneys’ fees) made against or incurred by Adobe as a result of negligence, misrepresentation, or error or omission on the part of Dealer or representatives of Dealer including any action (i) which is restricted by, contrary to, in conflict with, or ineffective under any law or regulation of any organization, country, group of countries, or political or governmental Institution to which Dealer is subject, or (ii) which negatively affects Adobe’s Intellectual Property Rights in the Education Software Products or the duration thereof, or require any compulsory licensing of any Adobe Intellectual Property Right or Adobe technology as embodied in the Education Software Products. Dealer shall be solely responsible for, and shall indemnify and hold Adobe harmless from, any claims, warranties or representations made by Dealer or Dealer’s employees or agents which differ from the warranty provided by Adobe in its End User License Agreement. (2) Dealer shall indemnify and hold Adobe and any third party(ies) designated by Adobe harmless against any and all claims (i) by any person whose Personal Data are collected, processed, recorded, stored, registered, disclosed, maintained, transferred or used by Dealer, or (ii) by any government entity enforcing privacy regulations, data protection regulations or any other applicable laws, or any other party based on any action directly or indirectly based on violation of privacy protection regulations, data protection regulations or any other applicable laws, in connection with the data or in connection with the use by Adobe or any other party(ies) designated by Adobe of such data.
10. Term and Termination. (a) Term. The term of this Agreement and of Dealer’s appointment hereunder shall commence as of the Effective Date and shall continue in full force and effect until December 31, 2009 unless earlier terminated by either party as provided herein. The Agreement shall not automatically renew. (b) Without Cause. This Agreement may be terminated at any time by either party without cause upon thirty (30) days prior written notice. (c) With Cause. Adobe may terminate this Agreement immediately if: (i) Dealer breaches this Agreement and has failed to cure such a breach within ten (10) days of notification thereof , provided that no such cure period shall apply if Dealer has breached any term of the Agreement regarding Adobe’s Intellectual Property Rights, or (ii) Dealer becomes insolvent or fails to pay its obligations to an Authorised Distributor as such arise, or (iii) any proceeding is commenced by or against Dealer under any law providing relief to Dealer as debtor, or (iv) Dealer makes an assignment without Adobe’s advance written approval. (d) Rights Upon Termination. Upon termination of this Agreement: (i) Dealer will no longer be an Adobe Authorised Educational Dealer; (ii) Dealer shall immediately cease using the Trademarks and discontinue all representations that it is an Adobe Authorised Educational Dealer; and (iii) return any Confidential Information to Adobe or destroy it upon Adobe’s request. (e) Each party understands that the rights of termination or expiration hereunder are absolute. No party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other parties arising from or incident to any termination of the Agreement by such party or any expiration hereof which complies with the terms of the Agreement, whether or not such party is aware of any such damage, loss or expenses. In particular, without in any way limiting the foregoing, no party shall be entitled to any damages on account of prospective profits or anticipated sales. Dealer agrees to waive the benefit of any law or regulation providing compensation to Dealer arising from the termination or failure to renew the Agreement and Dealer hereby represents and warrants that such waiver is irrevocable and enforceable by Adobe. Dealer also agrees to indemnify and hold harmless Adobe from any and all claims for compensation asserted by Dealer’s employees, sub representatives or any dealers.
11. Consequential Damages Waiver. EXCEPT FOR ANY LIABILITY THAT CANNOT BE EXCLUDED BY COMPULSORY LAW, AND EXCEPT FOR DEALER’S BREACH OF PARAGRAPH 8 (“OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS”), 3 (b)(viii) (“RESTRICTIONS ON COPYING, MODIFYING AND DECOMPILING”), 6 (j) ANTI PIRACY, 6 (k) NOTIFICATION OF INFRINGEMENT 9 (“INDEMNITY”), NONE OF THE PARTIES WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Limitation of Liability. THE FOREGOING PARAGRAPHS 9(b) (“INDEMNITY BY ADOBE”) AND 9(c) (“EXCLUSIONS”) STATE THE SOLE AND EXCLUSIVE REMEDY OF DEALER AND THE ENTIRE LIABILITY AND OBLIGATION OF ADOBE, AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS, WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE EDUCATION SOFTWARE PRODUCTS OR ANY PART THEREOF. THE TOTAL COMBINED LIABILITY OF ADOBE UNDER PARAGRAPH 9 (“INDEMNITY”) FOR INDEMNITY OF DEALER SHALL BE LIMITED TO THE GREATER OF: (i) € 60.000), Euros OR (ii) FIFTY PERCENT (50%) OF THE TOTAL PAYMENT MADE BY DEALER TO THE AUTHORISED DISTRIBUTOR PURSUANT TO THIS AGREEMENT IN THE MOST RECENT FULL CALENDER YEAR. IN NO EVENT SHALL ADOBE BE LIABLE FOR ANY DAMAGES TO DEALER OR ANY THIRD PARTY FOR ANY ACTION OR FAILURE TO ACT BY AN AUTHORISED DISTRIBITOR, INCLUDING WITHOUT LIMITATION ANY FAILURE TO FILL AN ORDER, DELAY IN DELIVERY, OR ERROR IN FILLLING ANY ORDER.
13. Miscellaneous. (a) Notices. Any notices permitted or required under this Agreement shall be in writing, and shall be delivered in person or by nationally recognized overnight delivery service, by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit with such delivery service or in the mail. If notice is sent to Adobe, it shall be sent as follows: Adobe Systems Software Ireland Limited, 4-6 River Walk, City West Business Campus, Saggart D24, Dublin, Ireland, Attention: Corporate Counsel. (b) Assignment. This Agreement and the rights and obligations hereunder may not be assigned by Dealer without the prior written approval of Adobe. For the purposes of this paragraph, a change in the persons or entities who control fifty percent (50%) or more of the equity securities or voting interest of Dealer shall be considered an assignment of Dealer’s rights. This Agreement and Adobe’s rights and obligations (in whole or in part), hereunder may be assigned by Adobe. (c) Waiver. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. (d) Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the intent of such provision within the limits of applicable law or applicable court decisions. (e) Injunctive Relief. It is expressly agreed that a violation of Paragraphs 3 (“Dealer Rights and Restrictions”), 6 (“Dealer Obligations”), 6(j) (“Anti-Piracy”), 7 (“License to Use the Adobe Trademark; Non-Generic Advertising”), or 8 (“Ownership of Proprietary Rights and Nondisclosure”) of this Agreement will cause irreparable harm to Adobe and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Adobe will be entitled to an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof. (f) Third Party Beneficiary. Dealer acknowledges and agrees that each Authorised Distributor is a direct and intended third party beneficiary of this Agreement and is entitled to enforce it directly against Dealer. (g) Controlling Law. This Agreement shall be governed in all respects by the laws of Ireland. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. (h) No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. (i) Address, Name Change. Dealer shall provide Adobe with advance written notice prior to an addition to or change in the address from the address first set forth above or change in the name under which Dealer conducts business. (j) Forum. All disputes arising out of or in connection with this Agreement shall be brought in the Courts of Dublin, Ireland. Dealer agrees to submit to the jurisdiction of the courts in Dublin, Ireland without prejudice to Adobe’s right to bring suit against Dealer before a court that would have jurisdiction in the absence of this paragraph. (k) Entire Agreement. This Agreement and the accompanying Exhibits A, B and C, completely and exclusively state the entire agreement of the parties regarding the subject matter hereof and supersede, and their terms govern, all prior or contemporaneous proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment or appendix signed on behalf of Adobe and Dealer by their duly Authorised representative, and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be null, void and of no effect. (l) Press Releases. Any press releases which pertain to the Agreement shall be approved in advance by Dealer and Adobe, as applicable. Such approval shall not be unreasonably denied by any of the parties. (m) Confidentiality. The terms of the Agreement are deemed to be confidential and shall not be disclosed except pursuant to a mutually agreeable press release or as otherwise required by law. (n) Survival. The provisions of PARAGRAPHS 6(i) (“Audit Right”), 9 (“Warranty”), 8 (“Intellectual Property Rights”), 9(e) (“Indemnity”), 11 (“Consequential Damages Waiver”), 10(d) (“Rights Upon Termination”), and 12 (“Limitation of Liability”), 13 (“Miscellaneous”) shall survive the expiration or termination of the Agreement by any party for any reason. (o) Attorneys’ Fees. In the event any proceeding or lawsuit is brought by Adobe, its suppliers, or Licensee in connection with the Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees, and attorneys’ reasonable fees, including costs and fees on appeal. (p) Headings. The paragraph headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such paragraph. (q) Warranty. DEALER WARRANTS THAT IT HAS FULL POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT, AND THE PERSON SIGNING THIS AGREEMENT ON THE DEALER’S BEHALF HAS BEEN DULY AUTHORISED AND EMPOWERED TO ENTER INTO THIS AGREEMENT. DEALER FURTHER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. (r) Contracting. If Dealer prefers to execute a hard copy of this Agreement, print out two copies of the Agreement in PDF format, execute two copies and mail to Adobe Systems Software Ireland Limited, 4-6 River Walk, Citywest Business Campus, Saggart, Dublin 24, Ireland. (s) English Language. In the case that this Agreement is executed in more than one language version, then the English language version shall prevail in case of any discrepancy between the versions.
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Exhibit A
Appropriate Identification:
Definition:
(1) For a purchase by an Individual who is enrolled at or employed by a university or a higher education college, Appropriate Identification means: (a) Clear, readable copies of the following documents: A current, valid photo identification and valid evidence of current enrollment at or employment by an Educational Institution; and (b) Valid Educational institution-sponsored Email Address, utilizing an education domain name.
(2) For a purchase by an Individual who is enrolled at or employed by a qualifying school or any Educational Institutions other than those mentioned in Section (1) above, Appropriate Identification means:
(a) School/Educational Institution identification card that includes date validating current status; or - when the above-listed Appropriate Identification is not available, an official letter printed with the Educational Institution logo or seal and signed by a teacher or, for teachers or faculty staff who wish to place an order, the registrar (or comparable authorised representative), at the Educational Institution verifying the students/teachers/faculty staff right to order Educational Software Products; or (b) other verification methods if Dealer is authorised by Adobe in writing pursuant to a separate written amendment to this Agreement.
(2) Validity. Each identification provided to Dealer shall be valid for a period of time not to exceed one (1) year from the date that the Appropriate Identification was actually furnished to Dealer, or, if applicable, the expected graduation date for the Individual, whichever is less.
(3) Permitted use of on-line Identification. If an Individual already has an Appropriate Identification on file with Dealer, Dealer may issue such Individual an on-line identification which is verified by the password issued to such Individual by Dealer, provided that Dealer (a) verifies that the Individual’s qualifying status has not expired prior to placing the order for shipment with the Authorised Distributor, (b) has the ability to terminate such identification and password immediately upon the Individual ceasing to be qualified to Purchase Educational Software Products, and (c) otherwise complies with the terms and conditions of this Agreement, including without limitation not permitting the Sale to such Individual of more than one (1) copy of each Educational Software Product per academic year. Each such on-line identification shall be valid for a period of time not to exceed one (1) year from the date that the Appropriate Identification was actually furnished to Dealer or the expected graduation date, whichever is earlier.
B. Educational Institution Definition. For a Purchase by an Educational Institution, Appropriate Identification means: - Valid Educational institution-sponsored Email Address, utilizing an education domain name. - a valid, official purchase order issued by an Educational Institution; or - current credit card information with the proper name, billing address, and ‘ship to’ or delivery address of the Educational Institution; or - a current personal credit card or check payment from Individuals who are faculty or staff with a ‘ship to’ or delivery address of the Educational Institution; or - such other Appropriate Identification as permitted by Adobe from time to time by posting a list of such Appropriate Identification on its Internet web site.
EXHIBIT B
Please note: Users that qualify as Individual Educational End Users as defined below are eligible to purchase only 1 product of its type, per academic year. For example, the user can purchase a copy of both Adobe Creative Suite 4 Design Standard and Adobe Creative Suite 4 Design Premium, but not two copies of Adobe Photoshop CS4 during the same 12-month period.
Educational Institutions: Qualified Examples “Educational Institution” means: 1. Accredited public or private primary, secondary or higher education school providing full-time instruction. This includes nursery schools, primary schools, secondary schools, high schools, grammar schools, schools for the handicapped, teacher training colleges, technical colleges, further education colleges, research institutes, adult education centres and State run or State subsidized facilities for the re-training of the unemployed. 2. Administrative Offices or Boards of Education of Educational Institutions (For their own use). 3. Home schools approved in writing by Adobe in its sole discretion. 4. Government schools located in the Territory. 5. Named educational entities approved by Adobe, only if individual named entities are approved by Adobe in writing if not already listed by Adobe on its Website a. Hospitals that are wholly owned and operated by an Educational Institution. Wholly owned and operated means the Educational Institution is sole owner of the hospital and only entity exercising control over day to day operations. b. Education research laboratories that are a public institution and recognized as such, teach students as part of their research mission, can provide copy of By laws that state the relationship with controlling university. c. Educational Consortia and Systems: Corporations and associations validly organized and existing under the laws of the Territory, with each member or shareholder of which is an accredited school. 6. Charitable organisations which operate on a not-for-profit basis and whose aim is either:
7. Other qualified examples as listed by Adobe from time to time on its Internet Website
Non-Qualified Examples 1. Non-accredited schools 2. Museums 3. Hospitals not wholly owned and operated by an Educational Institution 4. Churches 5. Religious organizations that are not accredited schools 6. Libraries 7. Training centers or schools granting certificates for courses such as computer software training or job training that are not accredited schools that grant degrees requiring not less than the equivalent of two (2) years of full-time study 8. Military schools that do not grant academic degrees 9. Other unqualified examples as listed by Adobe from time to time on its Internet Website
Educational Individuals Qualified Examples Qualified individuals who acquire Educational Software Products for their own personal use but not for further distribution or transfer and who have presented appropriate identification of current status as: • Students enrolled at an accredited public or private primary or secondary school providing full-time instruction • Full or part time students enrolled at higher Education Institutions defined as accredited public or private university or college that grants degrees requiring not less than the equivalent of two (2) years of full-time study • Full or part time faculty and staff employed by accredited Educational Institutions. • Other qualified examples as listed by Adobe from time to time on its Internet Website or in other written communication.
Non-Qualified Examples • Students not currently enrolled at an accredited Educational Institution. • Faculty and staff not currently employed at an accredited Educational Institution that grants degrees requiring not less than the equivalent of two (2) years of full-time study. • Students, faculty and staff who are not willing or able to provide appropriate identification • Other unqualified examples as listed by Adobe from time to time on its Internet Website • Students, faculty or staff enrolled or employed by named educational entities. Examples include: hospitals, higher education research laboratories, educational consortia and other examples that may be listed by Adobe from time to time on its internet Website or in other written communication from time to time.
Exhibit C
Information Security
This Schedule sets forth security procedures (“Security Procedures”) Dealer represents and warrants it is compliant with throughout the term of the Agreement. Failure to comply with these Security Procedures will constitute a material breach of the Agreement by Dealer, entitling Adobe to the remedies provided for under the Agreement. Unless specifically defined in this Schedule, capitalized terms shall have the meanings set forth in the Agreement. 1. Definition. For the purposes of this Exhibit C, the following term shall have the following meaning: “Customer Personal Data” shall mean Personal Data related to any person that is collected, processed, recorded, stored, registered, disclosed, maintained, transferred or used by Dealer in connection with the Agreement. 2. Security Objectives. Dealer shall fulfill its obligations hereunder in order that the following objectives are achieved:
