Additional Terms and Conditions for Adobe Cloud Subscription
The following additional terms and conditions apply to Your purchase of Adobe’s (“Vendor”) subscription (“Services”) and to the use of such Services by You and Your customers.
- Term and Termination
Services start once provisioned through the marketplace. You may cancel the Services through the marketplace so long as no Service commitments are active hereunder (i.e. You or one or more of Your customers are employing any active Services). You may only terminate the Service if there are no existing term commitments for Services. If You or Your customer terminates its use of a Service prior to the expiration of the term commitment for the selected service, You will remain responsible to Ingram Micro for all remaining and accrued charges for such Service pursuant to the selected term commitment.
Services are available for minimum commitments of one (1) Year. Services will auto renew for an additional one year period, unless You cancel the Services thirty (30) business days prior to the expiration of the term commitment for the selected Service. - Fees
The fees payable to Ingram Micro for the Services (“Fees”) are outlined in the ordering process, set forth in Your control panel in the Site and/or as provided to You in writing by an Ingram Micro sales representative. If applicable, discount schedules will be provided in writing by an Ingram Micro sales representative.
You agree to pay the Fees for the Services. If You or Your customer exceeds the usage limits applicable to the Service subscriptions, You agree to pay for all fees and charges applicable for such over usage which will be considered part of the Fees.
Ingram Micro, may, from time to time in its sole discretion, change the Fees. Any increase in the Fees will take effect for new Service subscriptions and at the beginning of the next subscription term (e.g., for subscription renewals or extensions). Ingram Micro will notify You of any Fee changes by updating the Site, by sending notice by e-mail or regular mail, or by otherwise notifying You as agreed in writing. - Territory Restriction
You may only resell and/or market the Services in Mexico.
You and Your customers warrant that they: (a) will comply with import, export, and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services, or data, directly or indirectly to or for certain countries, end uses, and end users; and (b) will secure all necessary clearance requirements, export and import licenses and exemptions and make all proper filings. - Support
Ingram Micro, its affiliates and/or their subcontractors will provide You with technical support for the Services. Your requests for support should be submitted directly to Ingram Micro and not to Vendor.
Vendor will provide all support to Your customers for the Services as per the ADOBE VALUE INCENTIVE PLAN TERMS AND CONDITIONS (defined below).
Vendor is not responsible for and disclaims all liabilities for any claims related to any technical support provided by You, Ingram Micro, its affiliates, and/or their subcontractors. - Terms of Sale & Terms of Use
Unless otherwise agreed to in writing signed by You and Ingram Micro, all orders are subject to the sales terms set forth at Cloud Politics and service setup information, including but not limited to pricing, (where applicable) set forth in the marketplace. Capitalized terms used but not defined herein have the meaning given to that term in the General Terms of Service.
The Services are provided by the Vendor. All of the following terms of use and/or service are established by the Vendor (the “Terms of Use”):
A. The ADOBE VALUE INCENTIVE PLAN TERMS AND CONDITIONS, which can be found at: https://www.adobe.com/howtobuy/buying-programs/vip-terms.html
Ingram Micro may at any time modify these terms and conditions. You and Your customers must regularly monitor the Site for any such modifications. The modified terms and conditions will be effective immediately after it is posted on the Site. Your purchase and resale of the Services and You and Your customers’ use of the Services after any such modification will be deemed acceptance of such modification. - Reseller Pass Through Terms
In order to offer Adobe Software Products to End Users, Reseller must first agree to these Adobe Reseller Pass Through Terms, together with the terms and conditions, rules or documents incorporated by reference herein (collectively, these “Reseller Terms”). Reseller will not offer Adobe Software Products to End Users if Reseller does not affirmatively accept these Reseller Terms. Any capitalized terms used but not otherwise defined in these Reseller Terms will have the meanings assigned to them in Section 14 (Definitions) below.
RESELLER HEREBY ACCEPTS AND AGREES TO ABIDE BY THE TERMS AND CONDITIONS IN THESE RESELLER TERMS, WHICH BECOME BINDING AND EFFECTIVE ON RESELLER, WHEN RESELLER AFFIRMATIVELY ACCEPT THESE RESELLER TERMS (such date the “Effective Date” of these Reseller Terms). - PARTIES
(1) “Distributor” means the distributor authorized by Adobe to offer Adobe Software Products through the VIP-Marketplace in the territory authorized by Adobe (the “Territory”).
(2) If you are entering into these Reseller Terms on behalf of an entity or organization that you represent: (1) all references to “Reseller” are to that entity or organization; and (2) you represent and warrant that you have the power and authority to enter into these Reseller Terms on behalf of Reseller.
AGREED TERMS
- AGREEMENT & ORDER OF PRECEDENCE
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. - APPOINTMENT & LICENSE GRANT
2.1 Nature of Appointment and License
(A) Subject to the terms and conditions set forth in these Reseller Terms, Distributor hereby grants Reseller, and Reseller hereby accepts, a non-exclusive and non-transferable license to order Adobe Software Products under the VIP Marketplace Program from Distributor via the Distributor Marketplace, for the purpose of offering such products to End Users in the Territory during the Term of these Reseller Terms.
(B) These Reseller Terms will not be interpreted or construed as an agreement for the sale of Adobe Software Products. Reseller must advise End Users to whom Reseller offers the Adobe Software Products that Reseller has a license to supply the Adobe Software Products and that the Adobe Software Products have been licensed, not sold.
(C) Reseller acknowledges and agrees that Adobe (and Distributor, as applicable) reserves the right to: (a) deal directly in the Adobe Software Products in the Territory, including the right to license to End Users directly, via Internet distribution or otherwise; (b) license distributors, and 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. - LICENSE RESTRICTIONS
3.1 Reseller’s right to offer Adobe Software Products under these Reseller Terms is subject to the following restrictions:
(A) Territory Restrictions, Anti-Piracy and Gray Market/Unauthorized Products: (a) Reseller will not supply Adobe Software Products to anyone outside the Territory or to anyone, whom Reseller using reasonable commercial diligence, believes may supply Adobe Software Products to anyone outside the Territory; (b) Reseller will not deal in illegal copies of Adobe Software Products or Gray Market/Unauthorized Products; (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. - ORDERS AND RETURNS
4.1 Reseller Orders. Before placing any order with Distributor for Adobe Software Products, Reseller must receive a corresponding order from an End User for such Adobe Software Products. Reseller is required to maintain records of all orders for the VIP Marketplace Program that it processes in accordance with Section 5.2 (Records and Inspections). Reseller must provide the same name, address, and company information to Distributor that Reseller uses to contract and correspond with an End User.
4.2 Returns. Any unused Adobe Software Product may be returned to Distributor within fourteen (14) days of order placement. - RESELLLER’S OBLIGATIONS
5.1 Notification of Infringement. Reseller will immediately inform Adobe and Distributor by e-mail, if it becomes aware of any facts indicating that Reseller or any person, entity, or firm is or may be infringing any Intellectual Property rights of Adobe and/or its licensors, including Gray Market/Unauthorized Products.
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
5.5.1 Adobe and Reseller acknowledge that they are each separate and independent data controllers of any Personal Information Processed under this Agreement. Adobe and Reseller, pursuant to this Agreement, do not and will not jointly determine the purposes or the means of processing of any Personal Information disclosed or received under this Agreement. In collecting, retaining, processing, recording, storing, registering, disclosing, transferring and using data (including Personal Information) and in maintaining records, Adobe and Reseller will each comply with any 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 Ethical Conduct and Compliance
5.7.1 Adobe Business Partner Code of Conduct. Reseller will conduct its business in a manner that reflects favorably upon Adobe and the Adobe Software Products. Without prejudice to any other provision in these Reseller Terms, Reseller represents, warrants and covenants that it will comply with the principles outlined in the Adobe Business Partner Code of Conduct set forth at http://www.adobe.com/corporateresponsibility/pdfs/adobe_business_partner_code_of_conduct.pdf (or successor website thereto) which are hereby incorporated into these Reseller Terms.
5.7.2 Reseller Compliance with Laws; Anti-corruption. In performing these Reseller Terms, Reseller and its shareholders, beneficial owners, affiliates, officers, directors, employees, subcontractors and agents involved in providing services under this agreement (collectively “Reseller Parties”), will comply with all applicable laws, including (but not limited to) anti-corruption laws or anti-bribery laws such as the U.S. FCPA, UK Bribery Act, and other anti-corruption laws of any other applicable jurisdiction. In carrying out its responsibilities under this agreement, the Reseller Parties will not offer, promise, give, authorize the paying or giving of, solicit, or accept money or anything of value, directly or indirectly, to (i) any Government Official in order to influence official action or otherwise obtain an improper advantage, (ii) any other person with the knowledge that all or any portion of the money or thing of value will be offered or given to a Government Official in order to influence official action or otherwise obtain an improper advantage, or (iii) any other person in order to induce them to perform their work duties disloyally or otherwise improperly or in any manner that would constitute bribery or an illegal kickback, or would otherwise violate applicable anti-corruption laws. For the purposes of this section, a person shall be deemed to have “knowledge” with respect to conduct, circumstances or results if such person is aware of (1) the existence of or (2) a high probability of the existence of such conduct, circumstances, or results. Reseller agrees to defend, indemnify and hold Adobe harmless for any claim arising out of or related to Reseller’s alleged violation of anti-bribery or anti-corruption laws. Adobe reserves the right to defend itself in any such claim.
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.
5.7.4 If Adobe reasonably suspects that Reseller has not complied with Section 5.7, Adobe may request, and the Reseller will promptly provide evidence sufficient, in Adobe’s reasonable satisfaction, of compliance with applicable anti-bribery and anti-corruption laws and regulations. If such evidence is not, in Adobe’s determination, sufficient, then such non-compliance will constitute a material breach of this Agreement and Adobe will be entitled to immediately request Distributor to terminate the Reseller Terms.
5.7.5 During the Term of this Agreement, Reseller shall promptly notify the Distributor and Adobe of any allegation or investigation of fraud, bribery, or corrupt practices regarding Reseller, regardless of the forum or venue in which such allegations are raised or investigation instigated.
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.
5.7.9 Reporting of Violations. Should Reseller know of any acts or omissions, by Reseller’s, Distributor’s or Adobe’s employees or other personnel, which violate this Section 5.7 (Ethical Conduct and Compliance), or suspect any such violations, Reseller should contact Adobe at Integrity@Adobe.com or 1-800-300-1026 for an anonymous reporting of such a violation or suspected violation.
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).