BUSINESS CATALYST DEVELOPER AGREEMENT

1. YOUR AGREEMENT WITH ADOBE

1.1 THIS AGREEMENT IS BETWEEN YOU AND ADOBE SYSTEMS INCORPORATED (“ADOBE” OR “WE”), A U.S.-BASED COMPANY, AND YOU AGREE THAT YOUR RELATIONSHIP WITH ADOBE WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND THE STATE OF CALIFORNIA, UNITED STATES, AS SET FORTH IN SECTION 18.3.

1.2 This Developer Agreement (this “Agreement”) sets forth the terms and conditions for developers who create, publish, and distribute software through or in connection with Business Catalyst (“BC” or the “Service”). If you use the Service on behalf of a company, then “you” means both you (as an individual) and such company, and you represent and warrant that you have all necessary authority to bind that company to the terms and conditions of this Agreement.

1.3 Adobe may alter or amend this Agreement at its sole discretion. If we change the Agreement, then we will make a new copy available at: http://www.businesscatalyst.com/developers/terms. Your use of the Service is subject to the most current version of the Agreement at the time of such use.

1.4 To be eligible to enter into this Agreement and participate in the developer program, you must have at least one paid site on BC (i.e., you must have (a) worked with BC and (b) created at least one paid site for yourself or for an End User).

2. DEFINITIONS. As used in this Agreement:

2.1 “Adobe Payment Processor” means Adobe’s third party payment processor, the use of which may require you to enter into a separate agreement with and provide certain additional information to such processor.

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

2.3 “End User” means an individual who uses or interacts with the Services as a result of their relationship with the Partner.

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

2.5 “Market” means a service mechanism for the sale and/or distribution of Products for use with the Service that is owned and operated by a third party.

2.6 “Partner” means the authorized reseller of the Services to End Users.

2.7 “Product” means your extensions, application software, code, material, text, data and other works of authorship made available to End Users, on either a trial or commercial basis, for use with the Service.

3. GRANT OF LICENSE.

3.1 License. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of all applicable fees, if any, Adobe grants to you, as a developer, a limited, non-transferable, non-exclusive, license, without the right to grant sublicenses, to use the Service solely for purpose of publishing and distributing compliant Products via the Market.

3.2 Restrictions. You agree not upload or distribute any Product via the Service which interoperates with the Service in any manner inconsistent with the Adobe General Terms of Use which are available at http://www.adobe.com/misc/terms.html.

4. USE OF SERVICE.

4.1 You agree that Adobe retains the right to create reasonable limits on the use or design of your Product, such as limits on file size, storage space, processing capacity, and as otherwise determined by Adobe in its sole discretion. You agree that you, not Adobe, are entirely responsible for your Product(s). You assume all risks associated with use of your Product, including any reliance on its accuracy, completeness, or usefulness.

5. REVIEW AND APPROVAL.

5.1 By Market Operator. The owner/operator of the Market shall have the right to review and approve/disapprove your Product(s) in accordance with such owner/operators standards as communicated to you in your agreement with them. In the event that your Product(s) do not meet the owner/operator’s guidelines and standards, the owner/operator shall have the right to disallow your Product(s) from being made available via the Market.

5.2 By Adobe. Adobe shall have the right to review your Product(s) for compliance with Adobe’s current approval guidelines and standard policies, which will be made available to you upon request. In the event that your Product(s) do not meet Adobe’s guidelines and standard policies, Adobe shall have the right to cause your Product(s) to be removed from the Market and blocked from further distribution unless and until your Product(s) are brought in compliance with Adobe’s guidelines and standard policies. Furthermore, Adobe shall also have the right and ability to disable your previously distributed and installed Product(s) unless and until your Product(s) are made compliant. You agree and acknowledge that Adobe may remove Products from the Service at any time for any reason and without any liability to you.

6. MARKETING REQUIREMENTS AND RESTRICTIONS. You will include with each Product a notice to the End Users that any End User payment for the Products will be processed by a third party. You may not (a) make any statement that any Product or other software is “certified” or otherwise guaranteed or approved by Adobe or (b) use Adobe’s name or trademarks to market any Product or other software without prior written approval from Adobe. The parties acknowledge and agree that Adobe is not liable for any software update, support, or other liability that may arise from your distribution of the Product as permitted herein. You will be responsible for providing End Users with an End User License Agreement which expressly states that: (x) you are solely responsible for supporting the Product and (y) that Adobe bears no responsibility for the Product or any use of the Product or for supporting the Product. You agree to indemnify Adobe against any claims related to the Products or your representations thereof in violation of this Section.

7. SUPPORT. You will be solely responsible for performing, in a manner consistent with good industry practice, all installation, training, support, and other services requested or required by End Users who obtain the Product through the Service, though you are not obligated to offer any such installation, training, or support. You will not refer any End User to Adobe for such support and Adobe has no obligation under this Agreement to provide any services to, or respond to any requests from, End Users. However, Adobe reserves the right to establish and maintain contact with End Users in order to facilitate the delivery of any Product support needed by such End User.

8. DISTRIBUTION BY ADOBE.

8.1 License. You hereby grant to Adobe and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid up license, under all of your Intellectual Property Rights, to (a) use, copy, publicly display, publicly perform, distribute, and modify the Product for any purpose related to this Agreement, including, but not limited to, promoting and marketing the Product, the Service and/or Adobe, its products, and services, and (b) sublicense to third parties the rights licensed to Adobe in subsection (a) of this Section 8.1.

8.2 Restrictions. Except as expressly permitted in Section 8.1, Adobe agrees not to (a) modify, adapt, alter, or create derivative works from the Product, or (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Product. Adobe will reproduce, on all copies made by or for Adobe, and will not remove, alter, or obscure in any way, all proprietary notices of yours on or within the copies of the Product.

9. DEVELOPER’S ACKNOWLEDGEMENTS.

9.1 Competitive Products. You understand and agree that the relationship between the parties hereunder is non-exclusive and that applications similar or competitive to Product may be made available via the Service. You also understand and agree that this Agreement shall not be construed as prohibiting Adobe from acquiring, licensing, developing for itself (or having others develop for it), marketing, publishing and/or distributing products that are similar or competitive to the Product. In the absence of a separate written agreement to the contrary, Adobe will be free to use any information you provide to Adobe for any purpose, subject to your applicable U.S. patents and copyrights registered in the U.S.

9.2 Developer Privacy. Please note that the Adobe Privacy Policy (http://www.adobe.com/misc/privacy.html) allows tracking of website visits and it addresses in detail the topic of tracking and use of cookies, web beacons and similar devices. In addition, Adobe may share information about you with the Adobe Payment Processor, and Adobe service providers as necessary in order to enable your use of the Service. Adobe does not have access to or control over features that a third party may use, such as the Adobe Payment Processor, and the information practices of third party websites are not covered by the Adobe Privacy Policy or the Adobe.com Terms of Use.

10. DEVELOPER’S OBLIGATIONS.

10.1 The Product shall not use any of the domain names of the site to which it installs, with the exception of the Product domain name itself.

10.2 Developer shall not include functionality that proxies, requests, or collects Adobe usernames or passwords. Adobe shall provide to Partners and to End Users tokens to authenticate when using the Products.

10.3 Adobe shall have the right, at its sole discretion, to set limits on the number of API requests that a Product can make. Developer must agree to such limitations and shall not attempt to circumvent such limitations. Developer should contact Adobe for additional terms in case the limit on API calls limit will be exceeded. Limits are also included in the BC Additional Terms of Use which is available at http://www.adobe.com/products/eulas/tou_businesscatalyst.html.

10.4 All content made available by Developer via the Market shall be original content that is (a) associated exclusively with your author name; (b) written by you personally from scratch, or; (c) ghost written exclusively for you and no one else, from scratch. Notwithstanding the foregoing, Developer may license third party assets for inclusion in the Product(s) provided that at least fifty percent (50%) of the code for the Product(s) meet the foregoing originality requirement.

10.5 The Product may not impersonate or spoof other users or applications.

10.6 Developer shall use the BC APIs only for developing applications for the Market and for no other purposes except as expressly permitted under this Agreement. Developer shall not reverse engineer the APIs or sublicense the APIs to third parties.

10.7 The Product shall not transmit any malicious code (including but not limited to viruses, worms, defects, and Trojan horses) or any other items of a destructive nature, and shall ensure that no such malicious code is included with any of its Products to the best of its ability and in accordance with industry standards, including but not limited to making use of commercially available malware and virus scanning software.

10.8 Developer shall have the right to decide if the Products will be sold at list price, at a discounted price or given away for free. Developer shall have the right to be attributed as the author of the Products but may not include their own logo or name on paid applications.

10.9 The Products:

10.9.1 shall be distributed only on the Market; and

10.9.2 shall not request or handle credit card information, payments or any information related to payment.

10.10 Notwithstanding the requirement in Section 10.9.1, above, Developer shall have the right to distribute the Products directly to Developer’s own sites and to sites which it developed or manages for its customers.

10.11 Developer shall not circumvent or attempt to circumvent Adobe’s intended limitations on core BC features and functionality.

10.12 Except as expressly permitted herein, Developer shall not have the right to include any advertising of any kind in the Product(s).

11. TRADEMARKS; BRANDING.

11.1 Developer Trademarks. Subject to the terms and conditions of this Agreement, you grant to Adobe a limited, non-exclusive, non-sublicensable, royalty-free, worldwide license to reproduce and use your trademarks, service marks, trade names, logos or other commercial or product designations for the purposes of promoting and distributing the Products.

11.2 Adobe Trademarks. You are not permitted to use any Adobe trademarks except as and unless expressly permitted herein. Any use of Adobe trademarks must comply with Adobe's general trademark guidelines available on the company's website at http://www.adobe.com/misc/trade.html and updates of those guidelines as made available periodically.

12. OWNERSHIP.

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

12.2 Developer. You retain all right, title and interest in and to the Product(s) (except for any portion of any Adobe Intellectual Property Rights, or any third party software incorporated or embodied therein), including all Intellectual Property Rights related thereto.

13. PAYMENT

13.1 All payments to Developer under this Agreement will be made in accordance with your agreement with the Market owner/operator as well as the BC Additional Terms of Use located at: http://www.adobe.com/products/eulas/tou_businesscatalyst.html.

14. WARRANTIES AND DISCLAIMERS.

14.1 No Warranty. ADOBE PROVIDES THE ADOBE INTELLECTUAL PROPERTY AND THE SERVICE TO YOU “AS IS.” ADOBE AND ITS SUPPLIERS MAKE NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE ADOBE INTELLECTUAL PROPERTY AND THE SERVICE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ADOBE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) ANY ERRORS OR ANY DEFECTS IN THE SERVICE WILL BE CORRECTED.

IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, EVEN IF ADOBE OR ANY COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT AND YOUR USE OF THE SERVICE AND THE ADOBE PAYMENT PROCESSOR.

14.2 Developer Warranty. By choosing to upload a Product to the Service or make a Product available via the Market, you represent and warrant that the Product will not (a) contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data, or personal information, (b) violate any law, statute, regulation, or rights (including without limitation, any laws, regulations or rights respecting intellectual property, computer spyware, privacy, publicity, export control, unfair competition, antidiscrimination, or advertising) when used in the manner in which it is intended, (c) infringe any intellectual property rights of another, including without limitation any rights of publicity and rights of privacy, and (d) interfere with the operability of Adobe, BC, or third-party software or systems.

15. INDEMNITY. You shall, at your own expense, indemnify, defend and hold Adobe harmless from and against any and all claims, costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses (collectively “Claims”) to the extent such Claims arise out of: (a) any breach of this Agreement by you, (b) any allegation that your Product or combination of your Product with any other application or Product infringes any third party Intellectual Property Rights, (c) any breach or alleged breach of any representations and warranties made by you concerning any aspect of the Product, (d) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Service, (e) any alleged or actual violation of your obligations of privacy to any third party, (f) any End User allegation related to the Product, including but not limited to any allegations based on a product liability claim, and (g) any allegation related to your agreement or relationship with the Adobe Payment Processor, the Market owner/operator, or any End User.

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

17. TERM; TERMINATION.

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

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

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

17.4 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) you shall immediately cease all use of the Service; (b) the Service may fulfill orders from End Users for Product for up to three (3) months after the effective date of expiration or termination and (c) Products may be immediately removed from the Service. Termination of this Agreement shall not affect any payment obligations which arose prior to the effective date of termination.

17.5 Survival. Sections 1, 7, 9, 12, 14, 15, 16, 17.4 and 18 shall survive the expiration or termination of this Agreement for any reason.

18. GENERAL.

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

18.2 Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are sent either by facsimile, overnight messenger delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested to such address as each party may designate pursuant to this notice provision. If notice is sent to Adobe, it shall be sent to the attention of the General Counsel at 345 Park Avenue, San Jose, California 95110-2704.

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

18.4 Export. You acknowledge and agree that the Product will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively, “Export Laws”). You represent and warrant that the Product is eligible for export under the Export Laws, and that you have received all necessary permissions, including registrations, licenses, foreign exchange approval, import licenses and fair trade approvals from the United States government for the export of the Product. In addition, you represent and warrant that you are not a citizen of, or located in, an embargoed or otherwise restricted nation (including Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from using the Service.

18.5 Assignment. You shall not assign, delegate, convey or transfer, directly or indirectly, by operation of law or otherwise, this Agreement or its rights and obligations hereunder without the prior written consent of Adobe, and any attempt to do so in contravention of this Section 18.5 shall be null and void. For the avoidance of doubt, a change of control shall be deemed an assignment for the purposes of this Section 18.5 and this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each party’s respective successors and permitted assigns.

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

18.7 Waiver; Severability. All waivers must be made in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Section 16 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 14 (Warranties and Disclaimers).

18.8 Confidentiality of Agreement. Neither party will disclose any terms or the existence of this Agreement, except pursuant to a mutually agreeable press release or as otherwise required by law.

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

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

18.11 English Version. The English version of this agreement will be the version used when interpreting or construing this agreement.

 

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