APPCELERATOR_LICENSE

APPCELERATOR LICENSE AGREEMENT FOR APPCELERATOR APP EXPLORE, TITANIUM STUDIO, AND TITANIUM MOBILE SDK PRODUCTS

 

 Last updated April 16, 2012

  

  PLEASE READ THIS SOFTWARE LICENSE AGREEMENT BEFORE INSTALLING OR USING THE PRODUCT(S). BY INSTALLING OR USING THE PRODUCT, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE THE PRODUCT(S).

   

   This Software License Agreement (“Agreement”) is between Appcelerator, Inc. ("Appcelerator") and the user of the Product(s) that accepts the terms of this Agreement ("Customer" or "You"). The effective date of this Agreement ("Effective Date") is the earlier of the date that Customer downloads or uses the Appcelerator App Explore, and/or Titanium Studio, and/or Titanium Mobile SDK products (“Product(s)”) respectively.

    

    1.     FEEDBACK.  You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Product(s) (“Submissions”), provided by You to Appcelerator are non-confidential and Appcelerator will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You.  

    2.     LICENSE GRANT

    2.1 Rights Granted to Customer. Subject to the terms and conditions of this Agreement, Appcelerator grants to Customer a non-transferable, non-exclusive, world-wide license to install and use the Product(s) on a computer owned or leased by Customer and for one (1) Named User to access and use the Product(s) solely to develop Applications and to include the Runtime Products as part of the Applications. The Product(s) may make Internet connections to remote servers to (a) check for updates; and (b) provide usage statistics ("Analytics") used by Appcelerator to improve the Product(s). The Product(s) may also connect to the Internet at any time to confirm compliance with this Agreement. Customer may not disable analytics, unless expressly required by applicable law. No support or other services will be available from Appcelerator under the terms of this Agreement.

    2.2 Delivery of the Product(s). Appcelerator shall deliver the Product(s) and Documentation to Customer via electronic download.

    2.3 License Restrictions. Customer is granted no rights in the Product(s) other than those limited rights expressly set forth in this Agreement and Appcelerator expressly reserves to itself all rights not granted to Customer. The Product(s) and the Documentation are licensed, not sold. Customer acknowledges that the Product(s) is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Accordingly, except as expressly permitted in this Agreement, Customer agrees not to and shall not allow any third party to: (a) modify, adapt, alter, recast, transform, translate or create derivative works from the Product(s); (b) use (or cause or permit to be used) the Product(s) for rental, lease, service bureau or application service provider, as part of a software as a service offering, or to provide services to third parties; (c) distribute, sublicense, lease, rent, sell, loan or otherwise transfer the Product(s) to any third party; (d) reverse engineer, decompile, or disassemble the Product(s); (e) copy or otherwise reproduce the Product(s) or Documentation; (f) remove, alter or obscure in any way any copyright or other proprietary rights on or within the Product(s) and or the Documentation; (g) modify any open source version of Appcelerator's software source code ("Original Code") to develop a separately maintained source code program (the "Forked Software") so that such modifications are not automatically integrated with the Original Code or so that the Forked Software has features not present in the Original Code; (h) build a product or service competitive to Appcelerator's Product(s) and/or services; (i) incorporate the Product(s) with products or services to create a combined offering; or (j) copy any features, functions or graphics of the Product(s). Customer understands and agrees that under no circumstances shall Customer re-sell, re-distribute or re-package the Product(s) to another third-party. For the avoidance of doubt, redistribution of the Application(s) which may include the Appcelerator Cloud Services in a third-party application marketplace (such as Apple iTunes) or to the Customer’s End User is expressly granted. Appcelerator may include ads within the Applications developed with the Product(s).

    2.4 Open Source Software. The Open Source Software is licensed under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses directory, the Documentation or other materials accompanying the Product(s). Copyrights to the Open Source Software are held by copyright holders indicated in the copyright notices in the corresponding source files or in the open_source_licenses file (or similarly named file such as "CREDITS") or other materials accompanying the Product(s).

    3.     USE OF THE APPCELERATOR CLOUD SERVICES (“ACS”). ACS is designed to provide Customer with optional backend technology for cloud services enablement for your Application.  If You choose to deploy ACS in your Application the ACS terms posted at www.appcelerator.com/legal/legal-agreements/acs

    shall apply to the Application’s use of ACS and are expressly incorporated into this Agreement by reference.  In case of a conflict between the ACS terms and the terms of this Agreement, the terms of the ACS shall control solely as to the provision of the ACS only.   

    4.     OWNERSHIP. Title to the Product(s) shall not pass from Appcelerator to Customer and the Product(s) and shall at all times remain the sole and exclusive property of Appcelerator. Appcelerator shall own all right, title and interest in and to any modifications and derivations of the Product(s) made by or on behalf of Customer, whether authorized in writing by Appcelerator or otherwise, and Customer will promptly deliver any such modifications and derivations to Appcelerator. Customer any hereby irrevocably transfers, conveys and assigns to Appcelerator all right, title, and interest in and to modifications and derivations of the Product(s). Subject to the foregoing, Customer shall own all right, title and interest in and to the Application(s) and User Content.

    5.     TERM OF AGREEMENT. Unless otherwise terminated earlier in accordance with the terms of this Agreement, the initial term of this Agreement shall begin on the Effective Date.

    6.     TERMINATION AND BREACH

    6.1 Termination for Cause. Either party may terminate this Agreement, effective immediately upon written notice, if either party materially breaches any term of this Agreement and such breach has not been cured within thirty (30) days after the other party has given written notice of such breach, the non-breaching party may terminate this Agreement.

    6.2 Termination for Convenience. You may terminate this Agreement for any reason by providing Appcelerator  notice. Appcelerator may terminate this Agreement for any reason by providing You thirty (30) days advance notice.

    6.3 Effect of Termination. Upon termination or expiration of this Agreement, the licenses granted hereunder shall terminate, Customer shall immediately discontinue use of the Product(s) and destroy or return the Product(s) and all proprietary and confidential information to Appcelerator. You remain responsible for all fees and charges You have incurred through the date of termination, including fees and charges for Appcelerator Cloud Services and data analytics as applicable.

    6.4 Survival of Certain Conditions. Notwithstanding anything to the contrary contained in this Agreement, Sections 1 ("Feedback"), 2.3 ("License Restrictions"), 4 ("Ownership"), 6.3 ("Effect of Termination"), 6.4 ("Survival of Certain Conditions"), 7 ("Injunctive Relief"), 8 ("Disclaimer of Warranty"), 9 ("Indemnity"), 10 ("Confidential Information"), 11 ("Limitation of Liability; Allocation of Risk"), 12 (“Fees”) 13 ("Miscellaneous Provisions") and 14 ("Definitions") shall in all cases survive any expiration or termination of this Agreement.

    7.     INJUNCTIVE RELIEF. Customer understands and agrees that Appcelerator may suffer irreparable harm in the event that Customer fails to comply with any of its obligations hereunder, and that monetary damages in such event may be inadequate to compensate Appcelerator. Consequently, in such event Appcelerator may be entitled, in addition to such monetary relief as may be recoverable by law, to such temporary, preliminary and/or permanent injunctive relief as may be necessary to restrain any continuing or further breach by Customer.

    8.     DISCLAIMER OF WARRANTY

    THE PRODUCT, THE DOCUMENTATION, AND ANY SERVICES ARE PROVIDED "AS IS" WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. APPCELERATOR DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE PRODUCTS, OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE. APPCELERATOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET THE REQUIREMENT OF CUSTOMER OR ANY CUSTOMER OF CUSTOMER OR THAT THE OPERATION OF ANY SUCH PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT AND/OR SERVICES.

    APPCELERATOR MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPCELERATOR, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

    9.     INDEMNITY. Customer shall defend, indemnify and hold Appcelerator harmless from and against all judgments, penalties, damages, settlements, costs and expenses (including reasonable legal fees and costs), losses or liabilities which may arise or result from: (a) any violations of this Agreement by You; (b) any modifications or enhancements to a Product(s) made by or on behalf of Customer; (c) any Application; (d) Customer's breach of Section 13.7 (Compliance with Laws) of this Agreement; or (e) your violation of any rights of another.

    10. CONFIDENTIAL INFORMATION. Appcelerator may disclose to Customer certain Confidential Information (defined below). Customer agrees that the Confidential Information is the sole and exclusive property of Appcelerator (or a third party providing such information to Appcelerator) and that Appcelerator or such third party owns all world-wide rights therein under patent, copyright, trade secret, confidential information, or other proprietary rights. The disclosure of the Confidential Information to Customer does not confer upon Customer any license, interest or rights of any kind in or to the Confidential Information. Customer shall hold in confidence and will not, directly or indirectly, use, reproduce, distribute, reverse engineer, decompile, transfer, or disclose the Confidential Information or any portion thereof other than as necessary to perform its obligations or exercise its rights under this Agreement. Customer shall return to Appcelerator all Confidential Information, together with all copies and material relating thereto (a) upon termination or expiration of this Agreement for any reason, or (b) upon request by Appcelerator. Customer's obligations with regard to the Confidential Information shall remain in effect during the term of this Agreement and for a period of five (5) years thereafter. As used herein, "Confidential Information" means non-public information of Appcelerator that is disclosed to Customer, including but not limited to the Product(s) and Documentation. Appcelerator is free to use and incorporate into its products and services any general ideas, know-how, and or techniques that are inherently disclosed to Appcelerator by Customer under this Agreement. Nothing in this Agreement will, or is intended to, limit Appcelerator's ability to develop or enhance its products and services in any manner whatsoever, including use of residual knowledge.

    11. LIMITATION OF LIABILITY; ALLOCATION OF RISK

    11.1                Limitation of Liability. APPCELERATOR'S TOTAL AGGREGATE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, ANY CLAIM WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, CAUSED BY APPCELERATOR'S SOLE NEGLIGENCE, IN AN AMOUNT NOT TO EXCEED FIVE DOLLARS (US $5).

    11.2                Exclusion of Damages. TO THE FULL EXTENT ALLOWED BY LAW, APPCELERATOR EXCLUDES ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF APPCELERATOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

    11.3                Allocation of Risk. Appcelerator and Customer agree that the foregoing Section 11.1 and Section 11.2 on limitation of liability and the Section 8 above on exclusion of warranties fairly allocate the risks in the Agreement between the parties. Appcelerator and Customer further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 11 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.

    12. FEES AND PAYMENT TERMS. The Product(s) is provided free of charge.  Use of the data analytics and/or ACS may incur fees for use as set forth on the Appcelerator website. Use of the ACS by you Application may incur fees for use associated with storage space, per bandwidth charge, Communication Events (push/email), use of API Calls, and other services depending on the tier of services.  Appcelerator calculates and bills fees and charges monthly. Appcelerator may bill You more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay Appcelerator  the applicable fees and charges for use of the data analytics and/or ACS as described on the Appcelerator Site using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for data analytics and/or ACS or new feature of a service will be effective when we post updated fees and charges on the Appcelerator Site unless we expressly state otherwise in a notice. Appcelerator may increase or add new fees and charges for any existing data analytics and/or ACS by giving You at least 30 days’ advance notice. Appcelerator may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.  All fees and charges payable by You are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide Appcelerator any information we reasonably request to determine whether we are obligated to collect VAT from You, including your VAT identification number. If You are legally entitled to an exemption from any sales, use, or similar transaction tax, You are responsible for providing Appcelerator  with legally-sufficient tax exemption certificates for each taxing jurisdiction. Appcelerator will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, You will notify Appcelerator  and will pay Appcelerator  any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, You will provide Appcelerator with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

    13. MISCELLANEOUS PROVISIONS

    13.1                Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to the Product(s) and Documentation, supersedes any prior or contemporaneous written or oral agreement or understandings between the parties with respect to the Product(s), and cannot be changed or terminated orally. This Agreement may be amended only in writing signed by the authorized representatives of the parties hereto.

    13.2                Severability; Waiver. If any provision in this Agreement is invalid or unenforceable, that provision shall be reformed to the maximum extent allowed by law to reflect the same economic effect as the invalid or unenforceable provision, and the other provisions of this Agreement shall remain in full force and effect. No waiver of any right under this Agreement shall be deemed effective unless contained in writing and signed by a duly authorized representative of the party purporting to make the waiver, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.

    13.3                 Assignment. Customer may not assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of Appcelerator. All rights and obligations arising out of this Agreement shall inure to the benefit of, and be binding on and enforceable by the parties and their respective permitted successors and permitted assigns.

    13.4                 Independent Contractors. Customer and Appcelerator shall perform their duties pursuant to this Agreement as independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or other joint relationship between Customer and Appcelerator. Neither party shall have the ability to incur any obligation on behalf of the other party.

    13.5                 Data Analytics. Appcelerator may collect certain information from End Users of the Product(s), including, but not limited to, platform, timestamp, device identifier, model, manufacturer, operating system, Titanium SDK version and geolocation data. Provided that Customer has paid the applicable data analytics fee, Appcelerator will organize and make this this information available to Customer on a regular basis. In addition, Appcelerator shall have the right to use such information and to compile and distribute statistical analyses and reports utilizing aggregated data derived from this information. Customer may not create custom fields to collect and send personally identifiable information about its End Users to Appcelerator.

    13.6                 Data Privacy. Appcelerator collects certain personal data and non-personally identifiable information from Customer’s use of the Product(s) and End Users use of the Applications. Appcelerator shall have the right to compile and distribute statistical analyses and reports utilizing aggregated data derived from information and data obtained from Customer, End Users, other Appcelerator customers and other sources. Appcelerator shall use commercially reasonable efforts to comply with all applicable laws and regulations regarding the collection and use of such personal data and personally identifiable information. Customer also agrees to use commercially reasonable efforts to comply with all applicable laws and regulations regarding the collection and use of such personal data and personally identifiable information and provide any notices or terms of services as may be required by any laws, statutes and regulations. Appcelerator has the right, for any purpose, to retain, use, and publish in an aggregate manner, information collected in Customer's use of the Product(s), and, including without limitation, data collected from End Users. Appcelerator will not disclose to any third parties any End User data collected by the Product(s) from Customer's Applications in a manner that contains or reveals any personally identifiable information or is specifically attributable to Customer, Customer's Applications or the End User. Customer will not (and will not allow any third party to) use the Product(s) to track or collect personally identifiable information from its End Users, nor will Customer (or will Customer allow any third party to) associate any data gathered from Customer's Application(s) with any personally identifying information from any source as part of Customer's use (or such third parties' use) of the Product(s). Customer must post a privacy policy and that policy must provide notice of Customer's use of a tracking pixel, agent or any other visitor identification technology that collects anonymous data about End Users of Customer's Applications.  Appcelerator’s privacy policy available at

    http://appcelerator.com/legal/privacy-policy

    and is incorporated into this Agreement by reference.

    13.7                 Compliance with Laws. Customer shall use and distribute the Application(s) in accordance with all applicable laws and regulations, including (without limitation) export laws and regulations and those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information. Appcelerator shall develop and provide the Product(s) in accordance with all applicable laws and regulations, including (without limitation) export laws and regulations and those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the ACS. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not access or use ACS in violation of any U.S. export embargo, prohibition or restriction.

    13.8                 Government Licensee. The Product(s) and related Documentation provided shall be "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations ("FAR") and its successors and 48 C.F.R. 227.7202 of the Department of Defense FAR Supplement ("DFARS") and its successors. In accordance with FAR 12.212 or DFARS 227.7202, as applicable, the Product(s) and related Documentation are provided to all U.S. Government end-users with only those rights set forth in this Agreement.

    13.9                 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the United States of America and the State of California without regard to its conflicts of laws provisions. Each party agrees that any claim or cause of action arising under or relating to this Agreement will be brought in a court of competent jurisdiction located in Santa Clara County, California and each party irrevocably consents to such personal jurisdiction and waives all objections thereto. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.

    13.10             Force Majeure. A party's performance under this Agreement is excused if that party is unable to perform under this Agreement due to an event beyond its reasonable control, including without limitation, natural disasters, labor unrest, government restrictions, and the like.

    13.11             Notices. All notices or other communications permitted or required to be given pursuant to this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, mailed first class mail, postage prepaid, sent by confirmed facsimile transmission or sent by express overnight courier service to each party's corporate headquarter's address, or to such other address as any such party may have designated by like notice forwarded to the other party hereto.

    14. DEFINITIONS

    14.1                 “API Calls” shall mean network request made by the Application to Appcelerator's servers to store data, retrieve data, and/or trigger communication events.

    14.2                "Application(s)" shall mean the software application products that Customer will develop using the Product(s).

    14.3                 “Communication Events” shall mean a push notification sent to an Application End User's mobile device, or an email sent to an Application End User's email account.  A single API call made by the Application may trigger multiple communication events.

    14.4                "Documentation" shall mean the end-user guides and manuals customarily provided by Appcelerator to developers for use with the Product(s).

    14.5                “End User” shall mean a customer licensed to use the Application for its own internal business operations, but not for allowing further access, sublicensing or distribution to third parties.

    14.6                "Named User" shall mean the individual who is authorized to access and use the Product(s) on behalf of Customer. Named Users may not share access with any other users. If an individual ceases to be an employee of Customer, Customer may transfer the license to another Named User.

    14.7                "Open Source Software" shall mean various open source software components licensed under the terms of applicable open source license agreements. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.

    14.8                "Product" or "Product(s)" shall mean the Appcelerator App Express platform, and/or Titanium Studio and/or Titanium Mobile SDK software and tools.

    14.9                “Runtime Products” shall mean the runtime portion of the Products.