PLEASE READ THE FOLLOWING
TERMS AND CONDITIONS (“Supplemental Terms And Conditions”) WHICH ARE SUPPLEMENTAL TO, AND FORM PART OF, THE END USER LICENSE AGREEMENT FOR THE SOFTWARE BETWEEN YOU (HEREINAFTER “Customer”) AND ADOBE AS SET OUT IN http://www.adobe.com/products/eulas/director_eula.html(“EULA”).
1. Definitions. Capitalized terms used herein shall have the meaning ascribed to them in the EULA unless specifically defined herein or as set out in these Supplemental Terms and Conditions below:
“Apple Products/Services” means products and/ or services (including service offerings) owned or licensed by Apple Inc. or its affiliates.
“Apple Revenue Report” means the report or documentation shared by Apple Inc. and / or its affiliate(s) to Customer setting out details of revenue generated from each Paid iOS App on the App Store and Customer’s share of such revenue.
“iOS App” means an application developed by Customer using the Software for the purposes of making such application available on the App Store to end users using the App Store.
“Paid iOS App” means the iOS Apps for which Customer charges the end customer a fee or a price for download, use and/or enjoyment of such iOS App from the App Store.
“Quarter” shall mean each of the following periods: (a) 1 January of a calendar year to 31 March of a calendar year; (b) 1 April of a calendar year to 30 June of a calendar year; (c) 1 July of a calendar year to 30 September of a calendar year; and (d) 1 October of a calendar year to 31 December of a calendar year.
“Revenue” means the revenue generated by the Customer for the Paid iOS App as reported through the Apple Revenue Report.
2.Notification of iOS Apps for the App Store. In the event the Customer uses the Software to develop an iOS App, it shall provide written notification to Adobe at DIR-PUBLISH@ADOBE.COM in order to procure an encrypted utility function from Adobe as envisaged in these Supplemental Terms and Conditions. Such notification shall include the following details:
(i) Name of the Customer (publisher of the iOS Apps);
(ii) Name of the iOS Apps;
(iii) ‘App Bundle Identifier’ as generated from the App Store for the iOS App; and
(iv) license key for the Software which is provided by Adobe to Customer at the time of purchase of the Software license in accordance with the EULA.
3. Provision of Encrypted Utility for iOS Apps. Upon receipt of a notification from Customer about an iOS App, Adobe shall provide the Customer with an encrypted utility to enable the Customer to make available the iOS App on the App Store. For avoidance of doubt, it is clarified that Customer shall not be entitled to provide an iOS App on the App Store without procuring an encrypted utility from Adobe as envisaged in these Supplemental Terms and Conditions. It is further clarified that Adobe shall be entitled to withhold, not to provide or recall the encrypted utility for any particular iOS Apps, if Adobe, in its sole discretion, determines that Customer has not fulfilled any representation and/or warranties envisaged in these Supplemental Terms and Conditions including but not limited to Clauses 6.2 and 6.3 below. Adobe shall also have the right to demand that Customer withdraws any particular iOS Apps from the App Store, if that iOS App violates any of the representation and/or warranties extended by the Customer herein and Adobe shall not be liable for any cost, expenses, loss of revenue or damages suffered by Customer of any kind due to such withdrawal.
If Customer makes any changes to an iOS App after submission to Adobe, Customer must resubmit the iOS App to Adobe. Similarly all bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of any iOS App must be submitted to Adobe for procuring the encrypted utility as envisaged in these Supplemental Terms and Conditions.
4. PAYMENT FOR PAID IOS APPS. WITH RESPECT TO EACH PAID IOS APP, CUSTOMER SHALL PAY ADOBE 10% OF THE REVENUE PAID BY APPLE INC. AND / OR ITS AFFILIATE(S) TO CUSTOMER IN RELATION TO SUCH PAID IOS APP IN A QUARTER (“Adobe Revenue Share”). NOTWITHSTANDING THE FOREGOING, CUSTOMER SHALL NOT HAVE ANY OBLIGATION TO PAY ADOBE ANY SHARE OF AN INITIAL REVENUE OF USD 20,000 THAT IS PAID BY APPLE INC. AND / OR ITS AFFILIATE TO CUSTOMER FOR AN IOS APP. IN THE EVENT THE CUSTOMER CONVERTS AN IOS APP TO A PAID IOS APP, THE CONDITIONS APPLICABLE FOR PAID IOS APPS AS SET OUT IN THIS SUPPLEMENTAL TERMS AND CONDITIONS SHALL APPLY TO SUCH CONVERTED PAID IOS APP. IF THE CUSTOMER IS NOT AGREEABLE TO THE TERMS SET OUT IN THIS CLAUSE, CUSTOMER MAY NOT USE THE SOFTWARE.
5. Sharing of Apple Revenue Report; Payment of Fees; Taxes. Within 5 days of the end of a Quarter, Customer shall send an email to Adobe at royalty@adobe.com, where such email shall contain:
- the details of the revenue generated from each Paid iOS App in the said Quarter in excel form;
- the Apple Revenue Report(s) by geographical location(s) in which the Paid iOS App is made available by the Customer on the App Store for that Quarter;
- sales activity for the Paid iOS App in the geographical location(s) in which the Paid iOS App is made available by the Customer on the App Store;
- the royalty rate applied by the Customer for such Paid iOS App;
- the Adobe Revenue Share owed to Adobe in relation to each Paid iOS App of the Customer for that Quarter; and
- any other information which may be necessary to validate the Adobe Revenue Share owed to Adobe for that Quarter.
Based on the above, parties shall validate the Adobe Revenue Share for each Paid iOS App and Adobe shall raise an invoice on Customer on the basis of the same.
All Adobe Revenue Share must be received in Adobe’s below-mentioned bank account no later than thirty (30) days from the date of invoice:
Any amounts not paid when due hereunder shall bear interest at a rate which is the lesser of 1.5% per month or the maximum rate allowable under applicable law, until the overdue amount, plus applicable interest is paid in full. Unless otherwise specified, all invoices shall be paid by wire transfer or check according to the remit instructions on each invoice. All payments must reference the invoice number.
In conjunction with each payment, Customer shall provide a detailed remittance advice via email to the Adobe Credit Department at bvar@adobe.com no later than the date that the payment is deposited into Adobe’s bank account. Payments received without remittance advices will be credited to Customer’s account at the discretion of the Adobe Credit Department. Customer shall use all reasonable efforts to advise of any disputed invoices that it is withholding for payment prior to the due date for payment, and Customer is not entitled to withhold payment on such invoices if it has not provided Adobe with notice of dispute within ten (10) days of receipt of shipment or the provision of services. Furthermore Customer is not entitled to withhold payment on any undisputed invoices.
Customer shall make required payments of Adobe Revenue Share without deduction of any tax, duty, fee or commissions to be paid solely by Customer (for avoidance of doubt, Customer is responsible for any taxes associated with selling Paid iOS App and cannot pass such taxes onto Adobe); provided, however, that Customer may deduct from payment any income tax or tax of a similar nature imposed by any governmental taxing authority (hereinafter referred to as “Income Tax Withholding”) on the income of Adobe from such payment and actually paid by Customer for the account of Adobe, to the extent that such Income Tax Withholding does not exceed the minimum percentage required by law of such jurisdiction as per statute, law or tax treaty of the payment from which it is deducted. In the event Customer deducts any income tax withholding from any payment, within sixty (60) days of payment, Customer shall furnish Adobe with official tax receipts and other evidence acceptable to the applicable taxing authority, and reasonably acceptable to Adobe, to establish that such income tax withholding has been paid for the account of Adobe. All withholding tax certificates, applications and related tax documents will be forwarded to Adobe as follows: Adobe Systems Incorporated, Attention: Credit Department, 345 Park Avenue, MS A16, San Jose, California, 95110-2704, USA.
6. Customer Obligations.
6.1 General. Customer undertake, represents and warrants to Adobe that:
(a) If the Customer is an individual, the Customer is of the legal age of majority in the jurisdiction in which he/she resides (at least 18 years of age in many countries) and have the right and authority to enter into the EULA (including these on his/her own behalf, or if he / she are entering into the EULA on behalf of his/her company, organization, educational institution, or agency, instrumentality, or department of the federal government, that he/she has the right and authority to legally bind such entity or organization to the terms and obligations of the EULA;
(b) All information provided by Customer to Adobe in connection with the EULA or any App developed by it, will be current, true, accurate, supportable and complete and, with regard to information Customer provides to Adobe, Customer will promptly notify Adobe of any changes to such information. Further, Customer agrees that Adobe may share such information (including email address and mailing address) with third parties who have a need to know for purposes related thereto (e.g., intellectual property questions, customer service inquiries, etc.);
(c) Customer will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by it in connection with the development of the Apps and distribution efforts, including, but not limited to, any related development efforts, network and server equipment, Internet service(s), or any other hardware, software or services used by the Customer in connection with the Customer’s development of the iOS Apps.
(d) Customer represents and warrants that it owns or controls the necessary rights for the delivery of the iOS Apps to end users vide the App Store, and that the fulfillment of such action shall not violate or infringe the rights of any third party; and
(e) Customer will not act in any manner which conflicts or interferes with any existing commitment or obligation it may have and no agreement previously entered into by the Customer will interfere with its performance of its obligations under the EULA.
6.2 Use of the Encrypted Utility. As a condition to receiving the an encrypted utility from Adobe for each iOS App as described in Clause 3 of these Supplemental Terms and Conditions, the Customer agrees that:
(a) It development and provision of an iOS App on the App Store shall be in the manner expressly permitted by the EULA and in accordance with all applicable laws and regulations;
(b) It will not use the iOS App or use the encrypted utility for any unlawful or illegal activity, nor to develop such iOS App for the purposes of committing or facilitating the commission of a crime, or other tortious, unlawful or illegal act;
(c) To the best of the Customer’s knowledge and belief, an iOS App do not and will not violate, misappropriate, or infringe any Adobe or third party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights (e.g., musical composition or performance rights, video rights, photography or image rights, logo rights, third party data rights, etc. for content and materials that may be included in the iOS App);
(d) Customer will not, directly or indirectly, commit any act intended to interfere with the Software or related services, the intent of the EULA, or Adobe’s business practices.
6.3 Compliance with Laws. Each iOS App must comply with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdictions in which such iOS App may be offered or made available. In particular, the Customer represents, warrants and undertakes:
(a) Customer and iOS App must comply with all applicable privacy and data collection laws and regulations.
(b) iOS App may not be designed or marketed for the purpose of harassing, abusing, spamming, stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and publicity) of others.
6.4 Content and Materials. Customer represents, warrants and undertakes that all material and content of an iOS App must be owned by Customer or licensed to Customer on a fully paid-up basis. Further, none of the iOS Apps must contain any malware, malicious or harmful code, program, or other internal component (e.g., computer viruses, trojan horses, “backdoors”) which could damage, destroy, or adversely affect Adobe’s software, firmware, hardware, data, systems, services, or networks.
7. Changes to Requirements or Terms. Adobe may change, modify, supplement, enhance, supplant and / or amend these Supplemental Terms and Conditions at any time without notice to Customer. Customer must accept and agree to the new Supplemental Terms and Conditions. If Customer does not agree to such new Supplemental Terms and Conditions, the entitlement Customer to receive an encrypted utility for an iOS App from Adobe shall be suspended.
8. Competing Products. Adobe works with many application and software developers and some of their products may be similar to or compete with iOS Apps. Adobe may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential disputes or claims, Adobe cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that Customer may provide in connection with the EULA, including information about iOS Apps which will be NON-CONFIDENTIAL. Adobe will be free to use and disclose such information on an unrestricted basis without notifying or compensating Customer. Customer releases Adobe from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of such information.
9. Indemnification. Customer agrees to hold Adobe and any applicable Certificate Authority (except as expressly provided in its terms and conditions) harmless from any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys’ fees) arising out of or relating to Customer’s development of any iOS App including making available such iOS App on the App Store.
10. NO WARRANTY. ADOBE DOES NOT MAKE ANY WARRANTIES REGARDING THE CERTIFICATION PROVIDED BY IT FOR ANY OF THE IOS APPS INCLUDING THAT THE CERTIFICATE WARRANTS INTEROPERABILITY OF AN IOS APP WITH ANY APPLE PRODUCTS/SERVICES, SUITABILITY OF AN IOS APP FOR ANY APPLE PRODUCTS/SERVICES OR ANY FUNCTIONALITY OR FEATURE OF THE IOS APP.
11. Records and Inspections. Customer agrees to maintain a complete, clear and accurate record of all matters pertaining to the Adobe Revenue Share and the Apple Revenue Reports for each Paid iOS App for a period of 10 years from the date on which such Paid iOS App receives its encryption utility from Adobe in accordance with these Supplemental Terms and Conditions. Customer shall permit either Adobe’s internal compliance auditor, chief compliance officer and/or his/her designate, and/or an independent third party (who is nominated by Adobe and bound by reasonable confidentiality undertakings), to audit and inspect its books, records and all other relevant information and documents (wherever located) pertaining to Customer’s adherence to these Supplemental Terms and Conditions and to ensure compliance by Customer of the obligations contained in this Agreement. Any such inspection and audit shall be conducted during regular business hours upon seven (7) days’ prior written notice to Customer, and in such a manner as not to interfere with the normal business activities of Customer. Adobe shall bear the expense of such audit, unless Customer is found to be non-compliant with these Supplemental Terms and Conditions, in which case the audit shall be at the expense of Customer. Further, in the event any audit reveals that Customer misstated the Revenue and/or the Adobe Revenue Share, then Customer shall reimburse Adobe for the amount of the Adobe Revenue Share which is underpaid together with interest at a rate which is the lesser of 1.5% per month or the maximum rate allowable under applicable law, on such deficit from the date such payment was due under Clause 5 of these Supplemental Terms and Conditions.