THESE RESELLER TERMS (such date the “Effective Date” of these Reseller Terms).

PARTIES

AGREED TERMS

Reseller acknowledges and agrees that any rights to offer Adobe Software Products via the Distributor Marketplace are being made available to Reseller subject to Reseller complying at all times with these Reseller Terms. If there is any inconsistency between these Reseller Terms and any agreement between Distributor and Reseller, these Reseller Terms will govern with respect to the Adobe Software Products.

2. APPOINTMENT & LICENSE GRANT

2.1 Nature of Appointment and License

other resellers (including retail partners) to distribute or resell the Adobe Software Products in the Territory; (c) provide technical support and other services for the Adobe Software Products in the Territory; and (d) enter into arrangements or agreements with third parties (including but not limited to End Users, resellers, retail partners or systems integrators) in connection with the Adobe Software Products in the Territory.

2.2 Modification and Suspension Rights.
Nothing in these Reseller Terms, any addendum or amendment will be construed to
(a) require Adobe to continue the manufacture and development of any Adobe Software Products, (b) require Distributor to continue offering such products to Reseller,
(c) restrict Adobe’s right to update, revise, modify, withdraw, or cancel any of its programs, offerings, the VIP Marketplace Program or participation in the Distributor Marketplace. Distributor may (or upon request of Adobe shall) suspend or terminate Reseller’s rights to offer Adobe Software Products under these Reseller Terms, upon written notification to Reseller.

3. LICENSE RESTRICTIONS

3.1 Reseller’s right to offer Adobe Software Products under these Reseller Terms is subject to the following restrictions:

(c) Reseller may only offer Adobe Software Products authorized under the VIP Marketplace Program, and Reseller may supply each such Adobe Software Product only to End Users who meet the eligibility criteria and/or are authorized under the VIP Marketplace Program, if applicable;
(d) Reseller must advise End Users to whom it offers Adobe Software Products of the restrictions set forth in this Section 3.1(A); and
(e) Reseller must promptly notify Adobe if Reseller is aware of any occurrence of the activities described in in this Section

3.1(A), whether carried out by Reseller or others.

(B) Compliance with Terms of Use: Reseller acknowledges and accepts that
(i) each Adobe Software Product is to be licensed to End Users in accordance with the terms and conditions of the General Terms of Use (available at https://www.adobe.com/legal/terms.html or any successor website), including the Additional Terms and any other terms referenced therein that are applicable to the Adobe Software Product (collectively, the “TOU”);
(ii) the terms of the TOU are not negotiable and must not be amended or modified for any End User; and
(iii) Reseller may not utilize the Adobe Software Product for its own internal business use except pursuant to a separate licensing agreement for that purpose.

(C) Restrictions on Copying and Decompiling:
(a) Reseller agrees that it will not reverse engineer, decompile, translate, disassemble, make copies, make media translations, modify, adapt, create derivative works, merge, separate or make any attempt to discover the source code of any part of the Adobe Software Products, Documentation.
(b) If Reseller comes into possession of any source code for any Adobe product that is not generally provided by Adobe as part of the Adobe Software Product, Reseller will not use or disclose the source code in any way, and will immediately deliver all copies of such source code to Adobe.

4. ORDERS AND RETURNS

5. RESELLLER’S OBLIGATIONS

5.2 Records and Inspections. During the Term and for at least two
(2) years after the expiration or termination of these Reseller Terms:
(a) Reseller will maintain a complete, clear and accurate record of all matters pertaining to the offering of Adobe Software Products and any actions taken under these Reseller Terms, including maintaining records of all orders for the VIP Marketplace Program that it processes (“Records”); and
(b) Reseller will permit Distributor, Adobe or an independent third party (who is nominated by Distributor or Adobe and bound by reasonable confidentiality obligations), to audit and inspect such Records, to ensure compliance by Reseller of the obligations contained in these Reseller Terms, including to verify Reseller’s compliance with Section 5.7 (Ethical Conduct and Compliance). Any such inspection and audit will be conducted during regular business hours upon seven (7) days’ prior written notice to Reseller, and in such a manner as not to interfere with the normal business activities of Reseller. Distributor or Adobe, as applicable, will bear its expenses of such audit, unless Reseller is found to be non- compliant with these Reseller Terms, in which case the audit will be at the expense of Reseller. Upon request by Distributor (or Adobe), Reseller will provide Distributor (or Adobe) with documentary proof that Reseller has complied with Section 4.1 (Reseller Orders). If Distributor (or Adobe) finds acceptable order documentation has not been received by the Reseller in advance of placing an order, then Distributor may (or at the request of Adobe, shall) suspend or terminate these Reseller Terms pursuant to the terms herein.

5.3 Consent. If providing Personal Information to Distributor or Adobe, Reseller will ensure that it has all necessary consents from End Users, including all necessary consents under applicable data protection, electronic communications and privacy Laws, for Distributor or Adobe, as applicable, to enter and use Personal Information provided by or on behalf of Reseller, including consents for the use of such data by Distributor or Adobe, as applicable, for product and marketing communications with End Users.

5.4 VIP Marketplace Migration and Licenses. Existing Adobe VIP Buying Program Members may migrate to the VIP Marketplace Program. Reseller may offer to End Users the option to migrate their Adobe Software Products licenses to the VIP-Marketplace Program; provided that Reseller must:
(a) obtain the End User’s prior written consent prior to migrating such End User’s Adobe Software Products licenses to the VIP Marketplace Program;
(b) notify the End User in writing that upon migration to VIP Marketplace, End User’s licenses for Adobe Software Products will be licensed under Adobe’s VIP Marketplace Buying Program. Reseller must notify End Users in writing that Adobe Software Products licensed through Adobe’s VIP Marketplace Buying Program are licensed through VIP Marketplace; and
(c) obtain the End User’s prior written consent to the Auto-Renewal Terms for any automatically-renewing subscription. Auto-Renewal Terms means the following terms
(i) that the subscription will continue until the End User cancels;
(ii) Reseller’s cancellation policy (including an option for online cancellation if the End User accepts the licensing terms online);
(iii) the price of the recurring charges for each product and that the amount of the charge may change;
(iv) the length of the automatic renewal term or that the service is continuous; and
(v) if a free trial is offered, the price that will be charged after the trial ends. These Auto- Renewal Terms must be displayed clearly and conspicuously to End Users, meaning
(x) in a larger font than the surrounding text;
(y) in contrasting type, font, or color to the surrounding text of the same size; or
(z) set off from the surrounding text of the same size by symbols or other marks (e.g., a text box).

5.5 Data Protection and Privacy

applicable privacy and data protection regulations and other applicable Laws in relation to the Processing of Personal Information pursuant to this Agreement.

5.5.2 If Reseller operates a website to market and/or accept online orders of any Adobe Software Products, Reseller must, at a minimum,
(a) feature a privacy policy, linked conspicuously from the website that
(i) discloses Reseller’s privacy practices,
(ii) identifies the collection and use of Personal Information gathered in connection with End User’s submission of Personal Information as part of the online order process, and
(iii) if Reseller collects or transmits Personal Information from any source to Adobe or Distributor, contains a statement specifically disclosing such practices (including transmission to a third party service provider) and offers website visitors the opportunity to opt out of (or opt-in, if applicable law requires) such use by third parties, and (b) to configure the website to prohibit the receipt of Personal Information from individuals under the age of thirteen (13) or to comply with all published FTC guidelines with respect to the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and all FTC guidelines thereto. Reseller represents and warrants that it will not transmit, provide, or otherwise make available to Adobe or Distributor sensitive personal information of its employees, customers, partners or site visitors, which includes but is not limited to information regarding a minor, financial information, and medical or health information.

5.5.3 Without limiting the generality of the foregoing, Reseller will make all appropriate registrations and will apply for all appropriate authorizations, approvals, and/or licenses so as to enable
(a) an inspection and/or audit as referred to above, and
(b) the transfer of the data to Adobe, Distributor and any third party(ies) designated thereby, and the holding and use of such data by Adobe, Distributor and any third party(ies) designated thereby, for any purposes specified by Adobe or Distributor, and in so far as permitted under the applicable privacy protection regulations and the applicable data protection regulations.

5.5.4 In addition to Reseller’s obligations under Section 8 (Confidentiality) and any confidentiality obligations between Reseller and Distributor, Reseller acknowledges and agrees that, as between Reseller and Adobe, Personal information that Reseller collects, processes, records, stores, transfers or receives from or on behalf of the Adobe Group, or directly from End Users, or other persons in relation to the Adobe Group or its products or services, will be considered Confidential Information.

5.5.5 Reseller will indemnify and hold the Adobe Group and any third party(ies) designated by Adobe harmless against any and all Claims (including attorneys’ fees) incurred by Adobe which arise directly or indirectly out of or in connection with Reseller’s data Processing activities under this Agreement, including, without limitation, those arising out of any third party demand, claim or action, including by a data protection authority, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any applicable data protection laws by Reseller or Reseller Parties.

5.5.6 Reseller’s obligation of indemnification survives the expiration or termination of these Reseller Terms.

5.6 Reseller’s Representations and Warranties

5.6.1 Reseller represents, warrants and covenants to Adobe and Distributor that:
(a) Reseller is validly existing under the Laws of its place of incorporation and has the power and authority to carry on its business as conducted;
(b) Reseller has the power and authority and all rights necessary to enter into and perform its obligations under these Reseller Terms;
(c) Reseller will comply with all Laws that are related in any way to the performance of its obligations under these Reseller Terms;
(d) Reseller will not make any representations or warranties with respect to Adobe Software Products that exceed the limited warranties made by Adobe in the TOU;
(e) all information which Reseller has provided to Adobe or Distributor in connection with these Reseller Terms prior to or during the Term, including in the course of onboarding procedures with Distributor, is true, correct, complete, and accurate in every respect and is not misleading or deceptive (including by omission),
(e) Reseller will, during the Term and for three (3) months thereafter, promptly notify Adobe or update or correct (via email to Adobe at Integrity@Adobe.com), in a timely manner, any information that it previously submitted that it knows has changed or is no longer true, correct, complete and accurate, including any such information that would alter a warranty or representation made by Reseller pursuant to this section;
(f) Reseller’s activities, collaterals, materials and websites associated with the Adobe Software Products will not incorporate Restricted Content. and
(g) Reseller will not represent that it is authorized to act on behalf of Adobe.

5.6.2 If Reseller breaches this Section 5.6 (Reseller’s Warranties and Representations) or any part thereof, Distributor will be entitled to (and if requested by Adobe, shall) terminate these Reseller Terms pursuant to Section 12.1 (Termination) without prejudice to all its other rights and remedies.

5.7.3 Conflict of Interest.

(a) Reseller will inform Distributor and Adobe prior to agreeing to these Reseller Terms, after having made diligent checks and enquiries, whether
(i) any Reseller Personnel and/or
(ii) any shareholder(s) holding 10% (ten percent) or more of the shares and/or equity in Reseller or an affiliate of Reseller are Related to any officer, director or Relevant Staff Member of Adobe. In the absence of such a notification, Reseller will be deemed to have confirmed that no such Relation exists to the best of Reseller’s knowledge, as of the Effective Date of these Reseller Terms.
(b) Reseller will refrain from
(i) making any direct or indirect payments or
(ii) granting anything of value which is unlawful and/or outside the ordinary course of business and not in accordance with generally accepted international industry practices to an officer, director, or member of staff of Adobe or anyone Related to them.

5.7.6 Export Compliance. Reseller acknowledges that the Adobe Software Products are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of Adobe Software Products. Reseller agrees to comply with all such laws, restrictions, and regulations.

5.7.7 No Anti-Trust Arrangements. Reseller is not aware of and has not participated in
(a) any business arrangements or deal allocation arrangements that could restrict free trading, competition and independent pricing of products among Adobe’s partners, including but not limited to distributors and resellers of Adobe Software Products, or
(b) practices that restrict free trading or lead to the promotion of monopolistic or anti-competitive business practices to the detriment of Adobe’s customers.

5.7.8 Fair Dealing; No False Representations. Reseller has made no false representations to Adobe or Distributor with respect to any transactions entered into during Reseller’s current fiscal quarter or any prior quarter. False representations would include, but not be limited to, the promotion or utilization of false documentation such as invalid purchase orders, fake or forged contracts, forged letters of destruction and/or inaccurate reporting to facilitate any Reseller transactions.

5.8 Indemnity by Reseller. Reseller indemnifies Adobe, each member of the Adobe Group, and each of their respective officers, employees and agents against any Losses (including attorneys’ fees) brought or made against Adobe by third parties relating to or arising out of:
(a) a breach by Reseller of these Reseller Terms;

(b) any claims, warranties, and representations made by Reseller or Reseller Personnel which differ from the warranties provided by Adobe in the relevant TOU;
(c) any wrongful (including unlawful, fraudulent or negligent) acts or omissions made by Reseller or Reseller Personnel; and
(d) any breach of any Law by Reseller (including without limitation, privacy or data protection Laws).

6. MARKETING AND USE OF TRADEMARKS

6.1.1 Adobe grants to Reseller, and Reseller accepts, a non-exclusive, non-transferable license during the Term to use “Adobe,” both the name and in the stylized form used by Adobe, and the applicable Software Product trademarks (together, the “Adobe Trademarks”), solely for and in connection with its resale, marketing, advertising and promotion of the Adobe Software Products in the Territory, subject to the terms of these Reseller Terms, provided that all uses of the Adobe Trademarks are approved in advance, in writing by Adobe. Adobe will use all reasonable efforts to respond to requests for approval promptly. Adobe reserves all rights not expressly granted herein.

6.1.2 Reseller acknowledges that all Intellectual Property and other rights in the Adobe Trademarks belong to Adobe. Reseller’s use must be in accordance with applicable Law and Adobe’s policies regarding advertising and Trademark usage as established from time to time, as posted on Adobe’s website at http://www.adobe.com/misc/agreement.html, and incorporated into these Reseller Terms by reference (“Trademark Usage Guidelines”).

(a) that Adobe is the exclusive owner of the Adobe Trademarks and all associated goodwill, and Adobe retains all right, title and interest in the Adobe Trademarks; any unauthorized use of the Adobe Trademarks will be deemed an infringement of the rights of Adobe;

(b) Reseller acquires no right, title or interest in the Adobe Trademarks, and any and all goodwill associated with the Adobe Trademarks inures exclusively to the benefit of Adobe;

(c) to comply with the Adobe Trademark Usage Guidelines;

(d) not to use the Adobe Trademarks in any manner or take any action that will adversely affect the ownership or validity of the Adobe Trademarks, or that will diminish, damage or otherwise adversely affect the value of the goodwill attached to the Adobe Trademarks, Adobe and/or the Adobe Group;
(e) not to attach any additional trademarks, logos or trade designations to the Adobe Software Products or to use any additional trademarks, logos or trade designations to promote and/or distribute the Adobe Software Products;

(f) not to adopt, use or apply to register any corporate name, trade name, Trademark, domain name, service mark or certification mark, or other designation similar to or containing, in whole or in part, the Adobe Trademarks or any other Trademark of Adobe or the Adobe Group; and
(g) to notify Adobe of any suspected violation of, or challenge to, Adobe’s and/or the Adobe Group’s rights in the Adobe Trademarks of which Reseller becomes aware, and acknowledges that Adobe and/or the Adobe Group has the sole right to, and in its sole discretion may, control any action concerning the Adobe Trademarks.

6.1.4 Reseller may not assign, transfer or sublicense this license (or any right granted herein) in any manner without prior written authorization from Adobe.

6.1.6 Adobe may at any time by giving Reseller notice terminate the license in this Section 6.1.6 (Adobe Trademark License and Use of Adobe Trademarks), or withdraw any approval given thereunder. Upon termination or expiry of these Reseller Terms, termination or withdrawal of the license in this Section 6.1.6 (Adobe Trademark License and Use of Adobe Trademarks) or withdrawal of Adobe’s approval hereunder, Reseller must immediately cease using the Adobe Trademarks and destroy all materials in its possession or control which contain the Adobe Trademarks.

6.2 No Endorsement of Reseller Products. Reseller may not represent to any third party that Adobe:
(a) has endorsed, warranted or guaranteed the performance of any Reseller product;
(b) has implied the merchantability or fitness for a particular purpose of any Reseller product; or

(c) intends to do either (a) or (b).

6.3 Publicity & Consent. Except as expressly set forth in these Reseller Terms, Reseller shall not issue any press releases, publicity, marketing or sales materials, or other materials developed by or on behalf of Reseller that refer to these Reseller Terms or the relationship between Reseller, Adobe, and Distributor. Notwithstanding the foregoing, Reseller agrees that the fact that it has entered into these Reseller Terms and is licensed to distribute Adobe Software Products is not Confidential Information, and Adobe is entitled to
(a) include Reseller’s details on any website that Adobe maintains for its customers in connection with the Adobe Software Products; and
(b) supply details of Reseller’s name, address, telephone, and fax numbers to parties seeking information concerning Adobe’s resellers.

7. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

7.1 The Software (including its structure, organization, code and other intellectual property) and all Adobe Software Products and the Adobe Trademarks are proprietary to, and are the Intellectual Property and Confidential Information of, Adobe and its licensors and suppliers. Adobe, its licensors and suppliers retain exclusive ownership of the Intellectual Property rights vested in the Adobe Software Products and the Adobe Trademarks.

7.2 Reseller must take all reasonable measures to protect the Intellectual Property rights of Adobe, its licensors and suppliers in the Adobe Software Products and the Adobe Trademarks, including providing such assistance and taking such measures as are reasonably requested by Adobe from time to time. Except as expressly provided in these Reseller Terms, Reseller is not granted any rights to any Intellectual Property or any other rights, franchises or licenses with respect to the Adobe Software Products or the Adobe Trademarks. Reseller does not at any time have title to the Intellectual Property in the Adobe Software Products.

8. CONFIDENTIALITY

8.1.1 “Confidential Information” means any of the following, whether in material form or not and whether disclosed before or after the Effective Date of this Agreement:
(a) all information of Reseller, Distributor, or Adobe (such entity disclosing the relevant information being the “Discloser”)
(i) that are directly or indirectly disclosed to any other party or Adobe (such entity receiving the relevant information being the “Recipient”), or
(ii) that the Recipient otherwise becomes aware of under this Agreement;
(b) any other information disclosed by the Discloser which can reasonably be inferred to be confidential from the circumstances in which it is imparted;
(c) the terms of this Agreement; or
(d) any notes and other records prepared by the Recipient that are based on or incorporating the information referred to in any of subsections (a), (b) or (c) above.

8.1.2 A Discloser’s Confidential Information does not include information that is (without being in breach of this Agreement):
(a) already in the public domain;
(b) received by the Recipient from a third party who does not owe an obligation of confidentiality to the Discloser; or
(c) independently developed by the Recipient.

8.1.3 Without restricting the definition of Confidential Information, a Discloser’s Confidential Information includes any of the following:
(a) Personal Information not provided in conjunction with an order for Adobe Software Products;
(b) Intellectual Property
(c) information concerning any research, experimental work or other development undertaken by Discloser; and
(d) any design details and specifications, engineering, financial information, pricing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information, that belongs to the Discloser.

8.1.4 For clarity, Distributor or Adobe may need to provide Reseller with certain confidential or proprietary information of or about Adobe, the Adobe Software Products, the VIP Marketplace Program or other information related to these Reseller Terms. Any such information is deemed “Confidential Information” of Adobe and is at all times subject in each case to the terms of these Reseller Terms and the terms of the confidentiality obligations between Distributor and Reseller.

8.2 Recipient must Keep Information Confidential. Where Discloser discloses Confidential Information to the Recipient, the Recipient must:
(a) use the Confidential Information solely for the purposes of performing its obligations under this Agreement; and
(b) keep all Confidential Information confidential and not disclose, circulate or disseminate it in any way except as:
(i) expressly permitted under this Agreement;

(ii) to the extent necessary to fulfill its obligations under this Agreement; or
(iii) as otherwise expressly agreed to in writing by Discloser; provided that the Recipient ensures that any party receiving such disclosure, circulation or dissemination are under an obligation to keep the Confidential Information confidential under terms at least as restrictive as those in this Section

8.2 (Recipient must Keep Information Confidential). Recipient remains responsible for any such party’s actions regarding the Confidential Information.

8.3 Requirement to Disclose. Where the Recipient is required to disclose Confidential Information in order to comply with applicable Laws:
(a) the Recipient must immediately notify the Discloser of the particulars of the required Disclosure; and
(b) the Recipient must give the Discloser all assistance reasonably required by the Discloser to enable the Discloser to take any steps available to it to prevent the disclosure or to ensure that it occurs subject to an appropriate obligation of confidence.

8.4 Recipient’s Security Obligations. The Recipient must:
(a) treat all Confidential Information with at least the same degree of care as it gives to the protection of its own confidential information of same or similar nature, but in no event less than reasonable care; and
(b) at its own cost, establish and maintain security measures to safeguard the Discloser’s Confidential Information from unauthorized access or use, including by not transferring the relevant Confidential Information in a clear or unprotected manner through public networks, and these security measures must be no less restrictive than the security measures that the Recipient takes to protect its own confidential information of same or similar nature.

ADOBE WARRANTS THE ADOBE SOFTWARE PRODUCTS TO END USERS ONLY PURSUANT TO THE TERMS AND CONDITIONS OF THE TOU. EXCEPT FOR THE EXPRESS WARRANTIES IN THESE RESELLER TERMS, ADOBE GROUP AND ITS THIRD PARTY PROVIDERS DISCLAIM AND MAKE NO OTHER EXPRESS, IMPLIED OR STATUTORY GUARANTEES, WARRANTIES, REPRESENTATIONS, OR OTHER TERMS AND CONDITIONS RELATING TO ADOBE SOFTWARE PRODUCTS, THESE RESELLER TERMS OR ITS SUBJECT MATTER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON- INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR ACCURACY.

10. LIMITATION OF LIABILITY

10.1 Non-Excludable Provisions. If any guarantee, warranty, term or condition is implied or imposed in relation to these Reseller Terms under any consumer Law of the Territory or any other applicable Law and cannot be excluded (a “Non-Excludable Provision”), and Adobe is able to limit Reseller’s remedy for a breach of the Non-Excludable Provision, then the liability of Adobe for breach of the Non-Excludable Provision is limited to one or more of the following Adobe’s option:
(a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

10.2 LIMITATION OF LIABILITY. SUBJECT TO ADOBE’S OBLIGATIONS UNDER THE NON-EXCLUDABLE PROVISIONS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF ADOBE FOR ALL CLAIMS UNDER OR RELATING TO THESE RESELLER TERMS OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), IN EQUITY, UNDER STATUTE, UNDER AN INDEMNITY, BASED ON FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM OR ON ANY OTHER BASIS, IS LIMITED TO THE AMOUNT OF LICENSE FEES PAID UNDER THESE RESELLER TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. IN CALCULATING ADOBE’S AGGREGATE LIABILITY UNDER THIS CLAUSE, THE PARTIES MUST INCLUDE ANY AMOUNTS PAID OR THE VALUE OF ANY GOODS OR SERVICES REPLACED, REPAIRED OR SUPPLIED BY ADOBE FOR A BREACH OF ANY NON-EXCLUDABLE PROVISION.

10.4 PROPORTIONAL LIABILITY; REQUIREMENT TO MITIGATE LOSSES. THE LIABILITY OF ADOBE, DISTRIBUTOR OR RESELLER FOR ANY LOSS SUFFERED OR INCURRED BY ANY OTHER ENTITY SUBJECT TO THESE RESELLER TERMS (INCLUDING UNDER ANY INDEMNITY) WILL BE REDUCED PROPORTIONATELY TO THE EXTENT THAT ANY WRONGFUL (INCLUDING NEGLIGENT) ACT OR OMISSION OF THE OTHER ENTITY OR ITS PERSONNEL DIRECTLY CAUSED OR CONTRIBUTED TO THE LOSS. IN THE EVENT THAT ADOBE, DISTRIBUTOR OR RESELLER HAS SUFFERED OR IS LIKELY TO SUFFER LOSSES AS A RESULT OF ANY EVENT GIVING RISE TO LIABILITY OF ANY OTHER ENTITY UNDER THESE RESELLER TERMS (INCLUDING UNDER ANY INDEMNITY), ADOBE, DISTRIBUTOR OR RESELLER, AS APPLICABLE, MUST TAKE ALL REASONABLE STEPS TO MITIGATE THE LOSSES. IF THE PARTY SUFFERING OR LIKELY TO SUFFER LOSSES DOES NOT DO SO, THEN THE OTHER PARTY’S LIABILITY WILL BE REDUCED ACCORDINGLY.

11. MODIFICATION BY ADOBE

11.1 At any time, Adobe may, in its sole discretion, modify, withdraw or cancel the terms of these Reseller Terms, including but not limited to:
(a) updating, revising, modifying, withdrawing or cancelling all or parts of its VIP Marketplace Program;
(b) changing any of the criteria for appointment and performance required of Reseller;
(c) changing or terminating any financial or other benefits that may be provided to Reseller, if applicable; and/or (f) adding additional terms, restrictions, and conditions applicable to any partner or other program incentives or benefits that may be made available by Adobe.

Software Products hereunder will immediately be terminated.

12. TERM AND TERMINATION

Without prejudice to Distributor’s or Adobe’s other rights and remedies, if Reseller breaches any of the covenants set forth in Sections 5.6.2 (Reseller Compliance with Law; Anti-corruption),
(i) Adobe and Distributor will have a right of action against Reseller for the amount of any monetary payment or thing of value made or given by Reseller in breach of any such covenants,
(ii) all payment obligations by Distributor to Reseller will cease immediately; and
(iii) Distributor may, in its sole discretion, (and at Adobe’s request, shall) rescind these Reseller Terms, and Reseller must immediately return any sum of money paid to Reseller arising from any transaction in violation of Section 5.6.2 (Reseller Compliance with Law; Anti-corruption).

12.2 Rights Upon Termination or Expiration. The termination or expiration of these Reseller Terms will be without prejudice to the rights and obligations of Adobe, Distributor, and Reseller that have accrued as of the date of termination or expiration. Upon termination or expiration of these Reseller Terms
(a) all licenses granted to Reseller hereunder will automatically cease; and
(b) Reseller must
(i) discontinue all representations that it is a reseller of Adobe Software Products;
(ii) immediately cease using the Adobe Trademarks;
(iii) as directed by Adobe or Distributor, return, destroy, or delete all copies of Confidential Information, or other Adobe materials (such as marketing collaterals) that is in Reseller’s possession or under its control;
(iv) provide to Distributor and Adobe, upon such party’s request, written confirmation that Sections 12.2(b) (i), (ii) and (iii) above have been complied with; and
(v) refer all inquiries regarding Adobe or the Adobe Software Products to Adobe and give Adobe notice thereof.

12.3 Survival. The termination or expiration of these Reseller Terms does not extinguish or otherwise affect any provisions of these Reseller Terms which by their nature survive termination or expiration. For the avoidance of doubt, the following is a non-exclusive list of clauses which will survive the termination or expiration of these Reseller Terms: Section 5.2 (Records and Inspections); Section 5.5 (Data Protection and Privacy); Section 5.6 (Reseller’s Representations and Warranties); Section 5.7 (Ethical Conduct and Compliance); Section 5.8 (Indemnity by Reseller); Section 6.1.2 and 6.1.3 (Marketing and Use of Trademarks); Section 6.2 (No Endorsement of Reseller Products); Section 6.3 (Publicity & Consent); Section 8 (Confidentiality); Section 10 (Limitation of Liability); Section 12 (Term and Termination); and relevant provisions of Section 13 (Miscellaneous), including but not limited to, Section 13.5 (Legal Costs), Section 13.8 (Governing Law and Dispute Resolution), and Section 13.9 (Provisional/Equitable Relief).

13. MISCELLANEOUS

(d) if emailed, upon the earlier of
(i) the sender receiving an automated message confirming delivery; or
(ii) 3 hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.

13.1.3 If a Notice is sent to Adobe, it must be sent to the attention of the Associate General Counsel, Indirect Sales, Legal Department WT11.

13.2 Assignment. Except as expressly set forth below in this section, neither these Reseller Terms nor any of the rights or obligations of the Reseller hereunder may be assigned, in whole or in part without the prior written approval of Adobe. In the event Reseller undergoes a Change in Control, Adobe will be entitled to terminate these Reseller Terms immediately upon written notice to Reseller. Adobe may, in its sole discretion, assign, novate or otherwise transfer these Reseller Terms without the prior written consent of Reseller. These Reseller Terms are binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.3 Waiver. No waiver of a right or remedy under these Reseller Terms is effective unless the person granting it complies with Section 13.1 (Notices). Such waiver is only effective in the specific instance and for the specific purpose for which it is granted. Any single or partial exercise of, failure to exercise, or delay in exercising, a right or remedy under these Reseller Terms does not prevent a further exercise of that or of any other right or remedy.

13.4 Severability. Any term of these Reseller Terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of these Reseller Terms is not affected.

13.5 Legal Costs. If any proceeding or lawsuit is brought by Adobe, Distributor or Reseller in connection with these Reseller Terms, the prevailing party in such proceeding is entitled to receive its costs, expert witness fees, and reasonable legal fees, including on appeal.

13.6 No Agency. Nothing in these Reseller Terms is intended to constitute a fiduciary relationship or an agency, partnership, joint venture, exclusive, trust or other similar relationship between Adobe, Distributor or Reseller. No party has authority to bind or incur any obligation on behalf of any other party.

13.7 Headings. The clause headings appearing in these Reseller Terms are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such clause or in any way affect such clause.

13.8 Governing Law, Venue and Dispute Resolution. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Reseller Terms. For a Reseller that has a principal place of business in:

d) Japan, these Reseller Terms are governed by the laws of Japan; and
e) any other country, these Reseller Terms are governed by the laws of California, U.S.A.

13.8.1 Alternative Dispute Resolution. In the event of a dispute regarding these Reseller Terms, the parties will consult each other in a good faith attempt to resolve the dispute without judicial intervention. If the parties cannot resolve the dispute, the parties will promptly agree on an alternative dispute resolution procedure. Nothing in this clause is intended to limit Adobe’s right to seek provisional, equitable and/or legal relief with respect to any actual or potential breach of Adobe’s Intellectual Property rights.

13.9 Provisional/Equitable Relief. The parties expressly agree that a violation of certain sections of these Reseller Terms, including a breach of Adobe’s Intellectual Property rights, Section 3 (License Restrictions), Section 5 (Reseller’s Obligations), Section 6 (Marketing and Use of Trademarks), Section 7 (Ownership of Intellectual Property Rights) and Section 8 (Confidentiality), may cause irreparable harm and that a remedy at law is likely to be inadequate. Therefore, in addition to any and all remedies available at law, a party will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation or any or all of the provisions set forth above in this Section. Reseller hereby waives any requirement that Adobe post a bond or other security in conjunction with any application for injunctive or other equitable relief.

13.10 Entire Agreement. This Agreement is the entire agreement between the parties with respect to and replaces all previous agreements, understandings, representations and warranties about that subject matter. Each party represents and warrants that it has not relied on any representations or warranties about the subject matter of these Reseller Terms except as expressly provided in these Reseller Terms.

13.11 Language. This Agreement is in the English language only, which will be controlling in all respects. All versions of these Reseller Terms in any other language will not be binding on the parties. All communications and notices to be made or given pursuant to these Reseller Terms will be in the English language.

13.12 Third Party Beneficiaries. Reseller acknowledges and agrees that Adobe and its licensors are third party beneficiaries of these Reseller Terms, with the right to enforce the obligations set forth in these Reseller Terms.

13.13 Taxes. In addition to any payments due to Distributor, Reseller 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 Distributor. Reseller agrees to pay and to indemnify and hold Adobe harmless from any such taxes, duties or other amounts, including penalties and interest, as well as any costs associated with the collection or withholding thereof.

13.14 Force Majeure. None of Adobe, Reseller or Distributor is liable for failure to perform its obligations under these Reseller Terms (except for any payment obligations) to the extent that performance is delayed, prevented, restricted or interfered with as a result of any causes beyond its reasonable control, including acts of God, terrorism, labor action, fire, flood, earthquake, failure of third-party providers, denial of service attacks and other malicious conduct, utility failures, power outages, or governmental acts, orders, or restrictions.

14. DEFINITIONS

Australia, Adobe Systems Software Ireland Limited, a company incorporated in Ireland, having a place of business at 4-6 Riverwalk, City West Business Campus, Saggart D24, Dublin, Ireland, as authorized agent of Adobe Systems Pty Ltd (ABN 72 054 247 835), and (c) for transactions with End Users located anywhere else, Adobe Systems Software Ireland Limited, a company incorporated in Ireland, having a place of business at 4-6 Riverwalk, City West Business Campus, Saggart D24, Dublin, Ireland (“Adobe Ireland”).

14.2 “Adobe Group” means Adobe and its subsidiaries and affiliates.

14.3 “Adobe Software Products” means Software, Services, Works, Media and Documentation made available by Adobe and supplied to Reseller by Distributor under the VIP Marketplace Program.

14.4 “Change in Control” in relation to a party, means that:
(a) there occurs a material change in control of that party having regard to any matter which relates to control of a corporation, including legal or beneficial ownership of shares, voting rights, rights to receive income or capital and rights to appoint directors; or
(b) that party disposes of all or substantially all of its assets. . For the purposes of these Reseller Terms, a change in the persons or entities who control fifty percent (50%) or more of the equity securities of Reseller will also be considered a Change In Control.

14.5 “Claim” or “Loss” means any damage, loss, cost, expense or liability incurred, or a claim, action, proceeding or demand made, however arising and whether present or future, fixed or unascertained, actual, threatened or contingent.

authorized by Adobe for use under the VIP Marketplace Program.

materials, whether of a technical nature or otherwise, provided with the Software by Adobe.

14.8 “End User” means a licensee of Adobe Software Products who acquires Adobe Software Products for its own use rather than distribution, and excludes distributors, resellers, retail partners, third party vendors, systems integrators, commission agents, or other parties who have licensed the Adobe Software Products from Adobe for distribution or resale.

14.9 “Government Official” means any public or elected official or officer, employee, or person acting on behalf of a national, provincial, or local government, including a department, agency, instrumentality, state-owned or state–controlled company, public international organization (such as the United Nations or World Bank), or any other Government Entity, or any political party, party official or any candidate for political office. Officers, employees, or persons acting on behalf of an entity that is financed in large measure through public appropriations, is widely perceived to be performing government functions, or has its key officers and directors appointed by a government should also be considered “Government Officials.”

14.10 “Government Entity” means a national government, political subdivision thereof, or local jurisdiction therein; an instrumentality, board, commission, court or agency, whether civilian or military, or any of the above, however constituted; a government-owned or government-controlled association, organization, business or enterprise, including any state-owned enterprise, such as any state-owned broadcaster, state- owned airlines, tourism boards, state-owned (or part-owned) banks or an entity that provides a service to its citizens (e.g., a postal office); public international organizations (including organizations whose members are countries, or territories, governments of countries or territories); and any a political party.

14.11 “Gray Market/Unauthorized Products” means Adobe Software and/or Adobe Software Products:
(a) that were originally or intended for distribution outside the Territory; or
(b) that are not sold in compliance with the terms of the VIP Marketplace Program, including Adobe Software Products that are diverted from an intended channel into another channel or that are made to appear as full commercial versions when in fact they are not.

14.12 “Intellectual Property” means all intellectual property rights of whatever nature anywhere in the world, including all rights conferred under statute, common law or equity, including Trademark rights, service mark rights, patents rights, copyrights, design rights and trade secrets, any rights to apply for registration (to the extent registrable) of any of the foregoing rights.

14.13 “Law(s)” includes common law, principles of equity, statutes, regulations, constitutional provision, treaty, decree, and generally accepted accounting principles, whether in the Territory or any other relevant jurisdiction.

14.14 “Media” means the physical property in and the physical copy of the Software, specifically the DVD-ROM, CD-ROM or other media.

Personal information may relate to any individual, including, but not limited to End Users.

14.16 “Distributor-Authorized Reseller” means an entity in the Territory that has entered into a contract with Distributor, including these Reseller Terms, for the distribution of Adobe Software Products via the Distributor Marketplace in the Territory, under the VIP Marketplace Program.

14.17 “Software” means the Adobe proprietary software.

14.18 “Related” includes any of the following relationships: spouse, children, parents, parents-in-law, siblings, brother/sister-in-law, uncles, aunts, nieces and nephews, and the term “Relation” is construed accordingly.

the Adobe Software Products.

14.20 “Reseller Personnel” means Reseller’s officers, employees, representatives or agents.

14.21 “Restricted Content” means images or content that are in any way unlawful, offensive, profane, harmful, threatening, defamatory, libelous, slanderous, obscene, harassing or racially, ethically or otherwise objectionable; facilitates illegal activity, promotes or depicts sexually explicit images, obscene or pornographic images; promotes or depicts violence; promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; incorporates any materials that infringe or assist others to infringe on any Intellectual Property rights; or contains or promotes politically sensitive or controversial issues.

14.22 “Term” has the meaning ascribed to it in Section 12 (Term and Termination).

14.23 “VIP Marketplace” or “VIP Marketplace Program” means Adobe’s VIP Marketplace Buying Program, under which Adobe has authorized Distributor to distribute Adobe Software Products via the Distributor Marketplace to Distributor-Authorized Resellers.