Attachment 2 - Adobe JELA Terms and Conditions AMD02.docx

Adobe Joint Enterprise License Agreement Terms and Conditions (“JELA License Terms”)

1. General Terms

This action is for procurement of brand name, commercially available off-the-shelf (COTS) Adobe software license, upgrades, modernization, maintenance support and services in support of the DOD. Organizations considered to be Eligible Enrollees under the Adobe JELA IV include and are limited to DOD Agencies, Military Departments (MILDEP), Office of the Secretary of Defense (OSD) and Combatant Commands that fall under the command of the Office of the Secretary of Defense (OSD). This also includes agencies that a MILDEP is the Executive Agency (EA) and/or is a Combatant Command Support Agent as defined by DOD Directive 5100.03 and identifies as part of their organization. All agencies will define their enterprise one level below the parent agency at the time of delivery order. The scope of this requirement applies to Continental United States (CONUS) and Outside the Continental United States (OCONUS) sites via remote access.

2. Definitions

In this agreement, the following definitions apply:

“Computer Software” means computer programs, procedure, downloadable desktop software products, and possibly associated documentation and data pertaining to operation of a computer system.

“Downloadable Desktop Software Products” means Computer Software products which need to be installed on a desktop or laptop computer but does not require web services.

“Eligible Enrollee” means the agencies within the DOD Organization authorized to submit Delivery Orders under this agreement.

“Enrollment”. Enrollment” is the process of onboarding an Eligible Enrollee to the JELA contract and is reflected in the document submitted to the Reseller to place a delivery order (“Delivery Order”) for the defined organization

“Enrollee” means any Eligible Enrollee that executes a Delivery Order.

"Enrollee’s Enterprise” applies to the agency / organization specified on the Delivery Order.

“Enterprise Footprint” means the potential user base of the Enterprise Products and Services established by the parties prior to contract award.

“Enterprise Product” means the bundle of Adobe Acrobat Professional and Adobe Experience Manager (AEM) Forms on Premises and services Enterprise Products must be licensed for all Users on an Enterprise-wide basis under this program.

“Products and Services” means the software products and services provided by Adobe/Reseller under this Agreement including Enterprise Products and Below-the-Line Products and Services.

“Below-the-Line Products and Services” means Adobe Products and Services listed on a Delivery Order that are not Enterprise Products.

“Device” means anything that a license can be installed on (i.e., physical and virtual desktop environments, servers, and mobile devices to include laptop computers, tablets, and smartphones).

“Reseller” means the contractor to whom the government awards the contract for the Adobe JELA Products and Services and to which the terms of this Agreement apply.

“ User” Authorized Users consist of: U.S Government civilian and military personnel, independent contractors, coalition forces, purchasing agents and other required DoD mission related. All such Users who may use or access Adobe Subscription Licenses must be a part of the Enrollee’s Enterprise. The Enrollee is responsible for ensuring that all such Users who may use or access Adobe Subscription Licenses will be subject to and bound by the terms and conditions of this Agreement.

3. Enrollment Process

Onboarding: At the time of initial enrollment and any option period exercised, the DOD Enrollee shall define the organization’s composition for the Enterprise Products (including subordinate commands and agencies in which there is an EA relationship). Further, the parties will agree as to corresponding Enterprise Product. Enterprise products will be based on this mutually agreed inventory. Future JELA IV Entrants: Eligible Enrollees may join as a new Enrollee upon written request to the Reseller and JELA Program Management office (PMO). Approval of requests will be validated by the Program Management Office.

Eligible Enrollees cannot order Below-the-Line Products and Services unless they order the Enterprise Products.

4. Media

The Reseller will make Adobe applications available via download to each agency Point of Contact (POC) and allow for each agency to duplicate and distribute the media as required to address installation in bandwidth or information security constrained environments. Each mission partner will follow their internal order tracking process.

5. Subscription License De-Install

If the Enrollee is not renewing at the conclusion of the Period of Performance, the Enrollee must deinstall the Subscription License. If the Enrollee is not renewing under the JELA IV but is renewing under a separate agreement, the Enrollee must deinstall the Subscription License. A new Subscription License key will be provided under the new agreement with authorization to download. If the Enrollee has renewed under the JELA IV, no further action is needed.

For clarity, Enrollee is not required to remove any perpetual licenses previously purchased under other agreements and/or previously owned but note security updates are no longer supported.

6. Enrollee Data Rights

The Enrollee will provide data to Reseller pertaining to software asset management for use in the JELA IV. The data shall only be used in connection with the Products and Services provided under the terms of this JELA IV. Enrollee data shall mean any information collected from an Enrollee Site, and any information that Enrollee imports into the products covered by the JELA from its internal data stores or other sources not supplied by Adobe/Reseller. Enrollee data shall also include any material, such as audio, video, text, or images provided to Adobe/Reseller by the Enrollee or on the Enrollee’s behalf in connection with Enrollee’s use of the Products and Services for content delivery, digital publishing, targeted advertising or indexing. Enrollee Data is owned by Enrollee at all times, regardless of location at any point in time. Adobe/Reseller makes no claim to any right of ownership in Enrollee data.

7. Transferability of JELA Below-The-Line Products and Services Licenses

This provision does not apply to Enterprise Products and Services.

All other Products and Services licensed on a per user basis may be transferred within the Enrollee organization or with another organization who is an Enrollee under this agreement. Enrollee will communicate prior to any transfer, with Adobe/Reseller through an email notification to support the assignment of transfer.

Enrollees shall have the right, with notification to Adobe/ Reseller, to assign, reassign, or transfer software licenses or Enrollees’ rights in the Products to other Enrollees at any time during the term. Enrollees are authorized to sublicense, assign, or transfer the subscription rights between Users within a Delivery Order.

Enrollees are authorized to sublicense, assign, or transfer the license rights between Users within a Delivery Order. In the event an Enrollee is reorganized or restructured such that its responsibilities and operations are transferred to another Enrollee, the organization shall have the right to assign or transfer the subscription licenses to the successor with prior notification to Adobe/ Reseller.

Internal assignment of Licenses. Licenses may only be assigned to a single user within the Enterprise. License subscriptions may be reassigned as described below.

i. Reseller to allow for reassignment of Licenses within DOD Departments, (i.e., -Army, -Air Force, DISA, etc.), and these reassignments extend only to Enrollments under this Agreement.

ii. The reassignment of licenses will be without billable cost to any party in the assignment of the licenses, provided that the licenses are (1) current or made current regarding Adobe’s software, and (2) the Enrollee does not remarket or otherwise intend to resell the licenses. .

iii. Effect of reassignment. It will be the responsibility of the Reseller to ensure accurate accounting for the reassignment and invoicing adjustments.

8. Publicity/Advertisement

Adobe and the Reseller must obtain DISA approval prior to mentioning an Enrollee in an advertisement, endorsement, or any other type of publicity. This includes the use of any trademark, logo, symbols, or other insignia denoting an Enrollee. The Enrollee agrees to develop a Joint Communications Plan between Enrollees, the Reseller and Adobe. The Joint Communications Plan will include a Press Release for public notification, as well as approval of promotional materials intended to provide awareness to the Enrollees of the benefits available under the JELA.

9. Distribution of Products and Services

Eligible Enrollees are only authorized to distribute Products and Services within their own organization or DOD mission supporting activities and not to any other entity.

As part of this Agreement the Reseller, working with Adobe, will make available the current Government approved version of Adobe Downloadable Desktop Software Products within this agreement (as long as such major version is Adobe supported and no older than one (1) major version back from Adobe’s current version). See below for version definition. The software will be available for online download from a publicly accessible website with role-based permissions to ensure downloads meet contract terms and conditions. The government reserves the right to provide physical media to enrollees who do not have network access or downloading capabilities. Each Enrollee will be responsible for providing the Reseller a list of authorized agents who are allowed to download and distribute copies of the software. The distribution of licenses and media is not to be construed as a manner for accounting for usage, nor part of any audit of usage.

App Version Definition Adobe apps use a numbering system to express released versions of apps: N.m Where N = Major version; m = Minor version For example, app version 23.2 indicates a release status of major version 23, with minor version 2.

Major versions are expressed as follows:

· Latest version (N): The latest major version of the app.

· Previous version (N-1): One major version behind the latest version.

· Long Term Supported Version (LTS): This version is available for Creative Cloud for enterprise plans only. It qualifies for security updates for an added period of up to one year.

· Older version (N-2 or earlier): Two or more major versions behind the latest version.

For example, if the latest available version of an app is 23.2 then:

· Latest major version (N) is 23.

· Previous version (N-1) of this app is 22.

· LTS may be designated as version 22.4.

· Older versions (N-2, N-3, or earlier) are versions 21, 20, and earlier releases.

10. Audits of Use

Upon Adobe/Reseller’s written request, Enrollees will provide audit reports to Adobe/Reseller from Licensee’s internal audit records as the sole means of satisfying Reseller’s requests for audit. Reseller can request that the Government conduct a self-audit and provide Reseller with results of the audit, but Reseller will not have access to the government’s systems to conduct the audit. The enrollee will use its best efforts to keep full and accurate accounts of acquired licenses.

i. Audit requests are limited to no more than once annually per Enrollee.

ii. The Enrollee has 30 days to provide written acknowledgment receipt of an audit request from the Adobe/Reseller and provide a fair and reasonable timeline to conduct the audit not to exceed 60-120 days from written acknowledgement to the Reseller. This requirement shall be reasonably extended by the parties during a period of government shutdown caused by a lapse of appropriations.

iii. Enrollees shall use DOD tools, spreadsheet, records, repositories, or interviews at Enrollees’ reasonable discretion to perform its internal audit. Enrollee’s POC will provide information to Reseller about the approach and strategy utilized to conduct the audit and explain the business process and assumptions used to determine total user count.

iv. Audit results will be provided in writing by an appropriate Enrollee’s POC designated by the Enrollee for such purposes.

v. At the conclusion of the audit, if Enrollee is above license parameters, the Enrollee will purchase the over deployed licenses.

11. Upgrades by Adobe

a. Adobe provides frequent planned upgrades and updates to the Products and Services accessed by Enrollees under this Agreement. Patches and fixes required for resolution of Information Assurance Vulnerability Assessment (IAVA), Zero-Day or other critical security issues require no advance notice to Enrollees.

b. Reseller will provide a 90-day written notification of all major version upgrades or updates. Enrollees are not obligated to accept software upgrades or updates especially if it requires hardware upgrades or purchase of new hardware. Upon release of the new major version, the prior version will receive security updates for 90 days. Adobe / Reseller will provide Enrollees with one-year advance written notice of software end of support for Downloadable Desktop Software Products and will provide security updates for 12 months for the current version as of the date of such notice. This assumes such notice is generally available to all Adobe customers. Enrollees may continue with the end-of-support software for the duration of the DOD JELA and not be obligated to migrate to the new software during this period. Enrollees will have the option to utilize both the end-of-support software and the new software within their enterprise.

12. Grant of License Scope for Per User Subscription Licenses

The allowances for Per-User Desktop licenses are as follows for Featured Restricted Licensing only:

Each licensed an Authorized User will have the right to download and use two (2) copies of Adobe Acrobat Pro, Below-The-Line products, and Digital Advertising, Learning & Publishing (D-ALP) Subscription Licenses for desktop use only.

Fifteen percent (15%) of the user-based license count will be allotted up to five (5) copies of Adobe Acrobat Pro and Below-The-Line licenses for use in classified networks or another Environments/Mobile Device. For clarity, the 5 copies are for an individual Authorized User and cannot be shared with other Authorized Users.

13. Additional terms and conditions The Government accepts commercial terms in a License Agreement only to the extent that those terms do not conflict with Federal law and only to the extent those terms meet the Government’s needs. The following terms, when they appear in a License Agreement, have been determined unacceptable to the Government as a result of a conflict with Federal law or as a result of incompatibility with the Government’s needs. Any such terms in the offeror’s License Agreement or any other document will be null and void as between the offeror and the Government, and those terms will have no force or effect in any resulting contract.

Recourse against the United States for any alleged breach of this agreement must be as a dispute under the contract disputes clause (Contract Disputes Act). While a dispute is pending, the Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.

If a third party claims that products or services delivered under this contract infringe that party’s patent or copyright, the contractor will indemnify the Government against liability, at the contractor’s expense, and pay all costs, damages, and attorney’s fees that a court finally awards or that are included in a settlement approved by the contractor, provided that the Government promptly notifies the contractor of the claim and gives the contractor such opportunity as is offered by applicable laws, rules, and regulations to participate in the defense thereof. The Government shall make every effort to fully participate in the defense and/or in any settlement of such claim. However, the contractor understands that such participation will be under the control of the U.S. Department of Justice, per 28 U.S.C. § 516.

If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance), such license or service shall not renew automatically upon expiration of its current term without prior express Government approval by a warranted contracting officer.

The contractor can request that the Government conduct a self-audit and provide the contractor with results of the audit, but the contractor will not have access to the government’s systems to conduct the audit.

Equitable relief and the award of attorney’s fees, costs, or interest are only allowed to the extent permitted by statute (e.g., the Prompt Payment Act or Equal Access to Justice Act). Disputes will be resolved according to the disputes clause.

Any license agreement provisions or terms of use unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract are not enforceable against the Government.

Venue and jurisdiction for any disputes are determined by the applicable federal statute (e.g., Contract Disputes Act) or by the Federal Acquisition Regulation. Any disputes arising under or related to this contract and license agreement will be governed by applicable federal statutes and regulations, not the laws of any particular U.S. state.

Recourse against the United States for any alleged breach of this agreement must be made under the terms of the contract disputes clause (Contract Disputes Act). While a dispute is pending, the Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and must comply with any decision of the Contracting Officer.

Assignment of government contracts without the government’s prior approval is prohibited by statute, except for assignment of payment to a financial institution, which must comply with the Assignment of Claims Act (31 U.S.C. § 3727, 41 U.S.C. § 15) and Federal Acquisition Regulation Subpart 32.8.

Neither the license agreement nor the price list shall be deemed “confidential” or “proprietary” information notwithstanding any marking to that effect. The Freedom of Information Act (FOIA) governs what information must be disclosed and what information may be withheld by the Government.