CONTRACT 6388 Vender AgreementAgreement No. 6388
EXHIBIT A
VALUE INCENTIVE PLAN AGREEMENT FOR LARGE GOVERNMENT AGENCIES
TERMS AND CONDITIONS
THIS VALUE INCENTIVE PLAN AGREEMENT FOR LARGE GOVERNMENT AGENCIES ("LGA," or "Program")
Membership Agreement ("Agreement") sets forth the terms of your participation asa Member in the Program. The
Agreement is effective as of the date Member places its first LGA Product order. This Agreement is entered into by
and between Adobe andthe organization identifiedinon-lineenrollmentto become a Member. "Adobe" shall mean
ADOBE SYSTEMS INCORPORATED, a Delaware corporation havinga placeof business at345 Park Avenue, San Jose,
CA 95110-2704. Member shall l icens e a I I software, services, and offerings available u n der the Program (col I ectl vely
"Product") to be installed and used within the United States (including United States territories and military bases
wherever located) from Adobe. This Agreement is effective when Member's partner places an order with Adobe
under this Agreement.
1. Program Description.
1.1General and Program Term. The LGA ProgramisaflexibleIicensingprogram designed toaIIowGovernment
Entitiesto ma nage a nd deploy Product I icenses purchased through the Program.The VIP Program is amembership
program based on an annual product renewal period as further defined inSection 3A of this Agreement. The LGA
program i s a special va riation (a sub-progra m) of Adobe's VI P progra m justfor largeGovernment Entities that
1nitiallylicense atIeast 100Products. References to Adobe's VIP program, will include a nd applyto LGA, unless
there is a confl ict i n the LGA Program, i n which case LGA terms will control. Member is required to accept the
oniineVIP terms. Once Member agrees to these LGA terms, however, these LGA terms will supersedeand replace
the online VIP terms. Once the organization accepts theseterms and enrolls in a membership through the VIP
onlineuser interface, the organization will bea member of the Program ("Member") until the earliestof when (a)
Adobe terminates the Program, or (b) this Agreement terminates. If Member is already an existing LGA Member,
these terms supersede and replaceMember's prior LGA Agreement. This LGA Agreement governs all of Members
LGA Products.Member's participation issubjecttothe terms of the VIP programguide, which may be updated
from time to time and is availableatwww.adobe.com/go/vip_program_guide_en ("Program Guide"). The Program
Guide is hereby incorporated into the Agreement by reference. Adobe may change the terms of the Program at its
sole discretion.
1.2 Government Entity. A LGA Member must be a Government Entity. Government Entity means: (a) a federal,
central,or national agency, department, commission, board, office, council, entity, or authority (executive,
legislative, orjudicial); (b) a municipality, special district, city, county, or state governmental agency, department,
commission, board, office, council,entity, or authority, or any other agencyinthe executive, legislative, orjudicial
branch of state or local government that is created by the constitution ora statute of the governing state,
i ncl udi ngthe district, regional, and stateadministrative offices; or (c) a public agency or organization created
and/or funded by federal, state, or local governments an d a uthorized to conduct the business of governing or
supporting citizens, businesses, or other governmental entities. For the avoidanceof doubt, private "for profit"
companies, non-profit orga ni za ti ons, tra de or industry associations, higher education institutions, and labor unions
are not included. Also excluded are private organizations thatconductwork on behalfof or with government
agencies.Member represents to Adobe that itisa Government Entity.Adobe reserves the rightto terminate LGA
memberships if Member is not a Government Entity.
1.3 TOU. The access and useof the Products is governed by the Adobe Terms of Use availableat
https://www.adobe.com/legal/terms.html (the "TOU"). The TOUs arehereby incorporated by reference. Inthe
event of inconsistency between the terms of this Agreement and the terms of the TOU, the terms of this
Agreement shailcontrol.
1.4 LGA Program Products. LGA is designed to offer Adobe's enterprise Products to Government Entities. Adobe
non-enterpri se Products maybe avai I able in the Admi n Console, however, LGA Members may not order or use
Adobe such Products. fora complete listof Products availablethrough the LGA Program, Member shall contact
its Account Manager. Al I Products purchased through the Program are soi elyfor usewithi n Member's own
Agreement No. 6388
organization and all re -sale, sublicensing, and other distribution is prohibited except asset forth in Section 4.1
and/or the Program Guide, if a pplicable.Certain offerings maybe available for Iicensebypurchasing Cons umables,
as des cri bed in the Program Guide.
2. Participation.
2.1 Adobe ID and VIP ID. An Adobe IDwill be required by Member's initial administrator inorderto enroll inthe
Program. Inthe event of inconsistency between the terms of this Agreement andthe terms required when signing
up for an Adobe ID, such inconsistency will be resolved in favor of this LGA Agreement. Upon completion of the VIP
enrollment process,the Member will be assigned a VIP 113which must be referenced on all LGA orders. Member is
responsiblefor acts or omissions of anyone who obtains access to and use of the Products through Member.
Member must deploy type 2 or type 3 IDs. For more information
see iatos° he9 _x, ilobe.com :ii er rila a set r -id r�twi .l l .
2.2 Admin Console. The Program admi ni stration user interface is the "Admi n Console."The individualinitially
accepting the onli neVIP terms on beha If of Member will be assigned as the Contract Owner a nd such i ndivi dual Is
authorized by Member to accept such terms. The Contract Owner cart add system admi nistrator(s) (each an
"Admi nistrator"). The Contract Owner a nd any Admi ni strator wi I I be provi ded access to the Admin Consol a where
they wil I havethe abi I ityto access the Product, manage their subscriptions, and view their account information.
The Admin Consolewill allowtheAdministratorto inviteadditional users within the! r organization to gain access
totheAdmin Console.Member authorizes any Administrator or Contract Owner to act on Member's behalf.
2.3Confidentiality. Member shall treatVIP IDas confidential and proprietary 1 nformation,subjecttoanyfreedom
of information laws and regulations or other laws requi ringthe protection of contractor confidential information
andthus not shareordisclosesuch information.
3. Ordering, Pricing, and Fulfillment.
3.1 Ordering; Pricing; LGA Level. Member shall place Productorders with their Account Manager within thirty (30)
days after the Purchase Authorization Date, with payment being ca I cul ated from the Purchase Authorization Date.
PurchaseAuthorization Date means the date the Purchase Authorization is created, or if no Purchase
Authorization is created, then the date of order. Matters such as price, delivery, and payment terms must be
agreed between Member and Member's Account Manager. Account Manager means either (i )Resel ler, if a
transaction is through a res el l er, or (H) Adobe representative, if a transaction is d i rest wi th Adobe. Adobe cannot
guarantee any particulardiscount, unless Adobe is Member's Account Manager. Member's initial LGA level is
based on the number of initial licenses Member purchases. Member's order will fail if Member does not purchase
the minimum number of licenses required for Member's LGA level within 15 days after Member's initial orderor
Anniversary Date. Subsequent year LGA levels will beset as described for Select levels in the VIP Program Guide.
LGA Members may not participate in VIP three-year commit amendment. A VIP three-year commit amendment
applies onlyforthe sta ndard Adobe VIP Program, and any acceptanceof the standard VIP three-year commit is
void for an LGA customer.
3.2Access and Fulfillment. Upon becoming a Member, Member's Administrator will be provided access tothe
avai lable Products, through the Admin Console. Member will havethirty (30)days from the PurchaseAuthorization
Date to placea corresponding order. A Purchase Authorization may be created when Member adds Products
through the Admin Console.
3.3 Over -deployment. If the number of Products ordered is less than the actual number of Products deployed after
the thirty -day period referenced in Section 3.2, then Member will no longer be ableto deploy additional Products
until payment is madefor al I outstanding deployments. Member may managethe number of Products deployed in
the Admin Console.
3.4 Agreement Anniversary, Subscription Period, and Renewals.
3,4.1 Agreement Anniversary Date. Unless otherwise communicated or unless Member actively selects another
date duringonlineenrol Iment, each LGA membershi p will have a default Anniversary Datethat is the day thirteen
months after the date Adobe accepts onlineenrol Iment ("Anniversary Date").
3.4.2 Subscription Period. The Subscription Period means the period that a Member may use Products and any
related services and includes the initial Subscription Period and any renewal Subscription Period, Theinitial
Agreement No. 6388
Subscription Period means the period that begins on Member's first Purchase Authorization Date and ends the day
prior to the AnniversaryDate. If Member renews, then a renewal Subscription Period wi I I begin on the Ann ivers a ry
Date and continue until the day prior to the next Anniversary Date. Use of subscription Products and any related
services co -terminates on the I astday of the Subscription Period. Cons uma bles must be used within a single
Subscription Period. AdditionaI information maybe found in the Program Guide,
3.4.3 Subscription Renewals. Adobe will usereasonable efforts to notify Member prior to subs criptionterminati on.
Member must renew subscriptions prior to the Ann ivers a ry Date in order to ensure uninterrupted use of Product.
Renewal orders maybe placed before the An nivers a ry Date; however, early renewal does not change the
Anniversary Date.
3.5 Upgrade Protection. Purchaseofthe subscription Product(s) includes upgrade entitlement, meaning Member
will be entitl ed to receive the I atest genera I ly available version of a subscription Product purchased under the
Program as long as the Product subscription is paid and activeatthe time Adobe makes the new version of the
Product commerciallyavailable.
3.6 Returns. Without prejudice to any rights that a Member may have under any applicable procurement lawsor
regulations govern i ng government contracts with Member, once a Product is installed or accessed, Member
cannot return it. If Member requests a return priorto installation, Member must return the entire order. Member
must request the return of Products purchased under the Agreement through Member's Account Manager.
Subject to any applicablewa rra nty rights, return requests must be made to Member's Account Manager within
fourteen (14)days after Member's origi na I Product order date. Adobe must approve all return requests before any
return is valid, as further described in the Program Guide. Also, if Member does not purchasethe required number
of licenses for Member's LGA level within 15 days after Member's initial order or Anniversary Date, as applicable,
then Adobe may return any licenses.
4. Miscellaneous.
4.1 Transfer of License. ProductTOUs do not govern restrictions regardi ngthe transfer of Products licensedunder
or in connection with this Agreement. In limited circumstances, Adobe may permit the transfer of Product licenses
under this Agreement in its sole and excl usivediscretion, Such requests should be directed to Adobe Customer
Service including description of the reason for the proposed transfer and the contactinformationof the
transferee. Additional information maybe found in the Program Guide. For clarity, all offerings are I i censed, not
sold.
4.2 License Compliance. Member must maintain systems and/or procedures sufficientto ensure an accurate record
of the number of copies of the Products that have been installed and/or deployed and retain records of Product
installation and/or deployment for two (2) years after the termination of the Agreement. Adobe and/or its
representatives may conduct an audit of Member's Productinstallation/deploymentnotmore than once per year
on thirty (30) days written notice, subj ectto faci I ity access requirements as set forth by Member. Such a udit wi I I
require Member to provide an unedited, accurate report of all Products installed/deployed and accessed by
Member and aII valid purchase documentation for al Products within thirty (30) days after request. if the audit
findings demonstrate non -conformity with the Product licenses, Member shall either purchasethe necessary
licenses withi n thi rty (30) days after being so notified or immediately discontinue us age a nd compensate Adobe for
fair usageof such licenses in accordancewith applicablegovernment contract lawand reguiation.This Section 4.2
shall survivetermi nation of the Agreement for a period of two (2)years.
4.3 Use of information. Adobe may use information about Member, includingname and contact! nformation,for
fulfiIling obligations under the Agreement. For more information, pleasesee the Adobe Privacy Center
(adobe.com/privacy).
4.4 Standing. The parties agree that the United Nations Convention on Contracts for the International Saleof
Goods is specificallyexcluded from appl ication to this Agreement. If Member is an entity of the United States
Federal Government, Member agrees that Adobe shall havestanding and the right to asserta ny breach of contract
claimarisingoutof this Agreement under the Contracts Disputes Act of 1978("Disputes Act").
4.5 GeneraL The parties areindependent contractingentities, and this Agreement will not be construed to imply
that either party is the agent or venturer of the other. Subject to appiicablelawand regulation Member may not
Agreement No. 6388
assign this Agreement (by operation of Iawor otherwise) without the prior written consent of Adobe and any
prohibited ass i gnment is nu I and void. Subj ectto a ppl i cable I a wand regulation Adobe may assignor novatethis
Agreement. This Agreement will be binding upon and will inureto the benefit of any permitted successorsor
assignees. No modification will bevalid or binding unless in writing. This Agreement (including the Program Guide,
a ppl i ca bleTOUs, and any on-line enrol i ment information, if applicable) represents the entire agreement between
the parties on the subject matter of this Agreement. If any provision of this Agreement is held unenforceable, the
remainder of the Agreement will continue in full forceand effect.
4,6 Services. The Product may integrate with a variety of services, operated either by Adobe or by third parties,
which may contain user -generated content that maybe (a) inappropriatefor minors, (b) i I I egal in some countries;
or (c) i na ppropri ate for viewing at work. A complete I ist of integrated services is available here:
www.adobe.com/go/integratedservices. If Member wants to prevent viewingof or access touser-generated
content services it may (i) disa bl es ervice access in the Creative Cloud Packager, where that functionality is made
available, or(ii) block access to the services via its networkfirewali.Services arenot, under any circumstances,
availableto users under the age of thirteen (13).Adobe disclaims liabilityforall user -generated content available
via the services. Member is responsiblefor determining whether useof the services complies withappiicablelaws
i n Member's jurisdiction. Member is not entitled to a refund and Adobe is not liable(!) if access to the services is
slowed or blocked as a resultof government or service provider action, or (ii) if Adobe reasonablydeems it
necessaryto block access to some orall oftheservices.
S. Additional Terms for LGA
5.1 For United States Federal Government Members, it is understood that any orders are subject to FAR 52.232-18
(Aval I ability of Funds) and FAR 52.232-19 (Avai I ability of Funds for the Next Fisca I Year) and therefore United
States Federal Government Members shall not deploy any Product unless funds are avaiIable to pay for such
orders. To the extent any state orIocaI government entity is subject tosimiIarrequirements,suchentities shall not
deploy any Product unless funds are available to pay for such orders.
5.2 Termination. This Agreement maybe terminated by a United States federal government Member pursuant to
the applicable procedures under FAR part49 and applicable procedures under FAR 52.212-4, FAR 52.249-1
(Termination for Convenience of the Government). IftheMember materially breaches oneof the following: (a)
reverse engineers, decompi I es, di sassembl es, or otherwi se attempts to discover the so urcecode of the software,
(b) unbundles the constituent component parts of the software, or (c) provides useof the software in a computer
servicebusiness,third party outsourcing facilityorservice, service bureau arrangement, or timesharing basis,the
relevant lawand regulations regardinggovernment breach shall apply and Adobe may immediately terminate this
Agreement, upon written notice. If this Agreement terminates, then Member's organization shall immediately
cease useof the Products, delete the Products from all computer systems and IT equipment on which it resides,
and return to Member's Account Manager any media contain!ngthe Products as well as any related materials. By
written notice, Adobe may terminate this Agreement effective on Member's next Anniversary Date,
5.3 Federal Government Members. Noticeto U.S. Federal Government End Users (Commercial Items): The
Products, provided under this Agreement are"Commercial Item(s)," as that term is defined at 48 C.F.R. §2.101,
consistingof"Commercial Computer Software" and "Commercial Computer Software Documentation," and
services related thereto, as such terms are used in 48 C.F.R. §12.212 or48C.F.R. §227.7202, as applicable.
Cons! stent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1through §22 7.7202-4, as applicable,the Commercial
Computer Software and Commercial Computer Software Documentation are being licensedto U.S. Federal
Government End Users (a)only as Commercial Items and (b) with only those rights as aregrantedto all other end
users pursuantto the terms and conditions of this Agreement and the IOUs. Unpublished rights are reserved
under the laws of the United States -Adobe Systems Incorporated,345 Park Avenue, San Jose, CA 95110-2704,
USA.
5.4 LGA TOU amendments. The following clauses in theTOU are revised as follows:
5.4.1 TOU Section 1.1—Governing lawwill bethe laws of the United States, unless there is no applicable law
of the United States which would apply, in which casethe laws of the State of California shall apply.
5.4.2 TOU Section 7.2 shall begin with "To the extent permitted by applicablelaw,"
5.4.3 TOU Section 13.1—the secondsentence (arbitration)isdeieted.
Agreement No. 6388
5.4.4 TOU Section 13.2 (arbitration rules) is deleted.
5.5 Adobe is not entering into a direct purchasing relationship with Member for the Products. Resell er is solely
responsiblefor setting the terms of payment with Customer (including but not limited to when payments by
Customer are due toReseller).
5.6 Adobe will provide support services for the Products as described at hqgs:ZZtjeiQx,adcsbe.con su or
ro rams t ohcies-t arms-c ndi i n .html.
5.7 By placing an order with Resellerfor Productsthrough LGA, Customer will bedeemed to haveaccepted the terms
of this LGA Agreement,
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written.
CITY OF EL SEGUNDO,
eptl law elty
Charles Ma
ITS D
ATTEST`
Tracy Weaver,
City Clerk
APPROVED AS TO FORM;
Mark D. Hensley,
City Attorney
�(r�l
h,
loaq in Vazquez,
Dep ty City Attorney
Hank Lu, Ris agement