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APPCELERATOR CLOUD SERVICES AGREEMENT

Last updated April 16, 2012

PLEASE READ THIS AGREEMENT BEFORE USING THE SERVICES. BY USING THE APPCELERATOR CLOUD SERVICES, 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 APPCELERATOR CLOUD SERVICES.

This Appcelerator Cloud Services Agreement (“Agreement”) is between Appcelerator, Inc. ("Appcelerator") and the user of the Appcelerator Cloud Services 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 uses the Appcelerator Cloud Services (“Services”).

1. Feedback

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services ("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. Use of the Services

The Services are designed to provide Customer with optional backend technology for cloud services enablement for your Application. You choose to deploy the Services in your Application the following terms herein shall apply to the Application’s use of the Services.You will adhere to all laws, rules, and regulations applicable to your use of the Service including the terms herein.

2.1 General Practices Regarding Use and Storage Customer acknowledges that: Appcelerator may establish general practices and limits concerning use of the Services by the Application, including without limitation the maximum period of time that data or other content will be retained by the Services; the maximum storage space that will be allotted on Appcelerator’s servers on Customer’s behalf; and that there may be fees for use of the Services by the Application associated with storage space, per bandwidth charge, Communication Events (push/email), use of API Calls, and other services depending on the tier used.Customer agrees that Appcelerator has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Application to the Services. Customer acknowledges that Appcelerator reserves the right to terminate Services accounts that are inactive for an extended period of time. Customer further acknowledges that Appcelerator reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

2.2 Your Account To access the Services, You must create an account associated with a valid e-mail address and payment information. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by You, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our Affiliates are not responsible for unauthorized access to your account. You will contact Appcelerator immediately if You believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 8.

2.3 Your Responsibilities

2.3.1 Your User Content You are solely responsible for the development, content, operation, maintenance, and use of your User Content (as defined below). For example, You are solely responsible for:

2.3.1.1 the technical operation of your User Content, including ensuring that calls You make to any Service are compatible with then-current APIs for that Service;

2.3.1.2 compliance of your User Content with the Acceptable Use Policy and the law;

2.3.1.3 any claims relating to your User Content; and

2.3.1.4 properly handling and processing notices sent to You (or any of your Affiliates) by any person claiming that your User Content violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.

2.3.2 Other Security and Backup. You are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of your User Content, which may include the use of encryption technology to protect your User Content from unauthorized access and routine archiving your User Content. The Service log-in credentials and private keys generated by the Services are for your internal use only and You may not sell, transfer or sublicense them to any other entity or person, except that You may disclose your private key to your agents and subcontractors performing work on your behalf.

2.3.3 End User Violations. You will be deemed to have taken any action that You permit, assist or facilitate any person or entity to take related to this Agreement, your User Content or use of the Service. You are responsible for End Users’ use of your User Content and the Service. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If You become aware of any violation of your obligations under this Agreement by an End User, You will immediately terminate such End User’s access to your User Content and the Service.

2.3.4 End User Support. You are responsible
for providing customer service (if any) to End Users. Appcelerator do not provide any support or services to End Users unless we have a separate agreement with You or an End User obligating Appcelerator to provide support or services.

2.4 User Conduct. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“User Content”) that your Application(s) upload, post, publish or display (hereinafter, “Upload”) or otherwise use via the Services.   You may not create Applications that use the Services in any way that violates applicable federal, state, or international law, or for any unlawful purpose.  You may not use the Application to have the Services to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of Appcelerator or others.  Appcelerator reserves the right to investigate and take appropriate legal action against anyone who, in Appcelerator’s sole discretion, violates this provision, including without limitation, removing the offending content from the Services, and reporting You to the law enforcement authorities.  

3. Acceptable Use Policy

The Acceptable Use Policy (the "Policy") describes prohibited uses of the Services by your Application. The examples described in this Policy are not exhaustive. Appcelerator may modify this Policy at any time by posting a revised version on the Appcelerator website. By using the Services or accessing the Appcelerator website, You agree to the latest version of this Policy. If You violate the Policy in Appcelerator sole determination or authorize or help others to do so, we may suspend or terminate your Application’s use of the Services. Appcelerator reserves the right without limitation to terminate your Application’s access to the Services if your Application makes use of the Services for any of the following purposes:

3.1 No Illegal, Harmful, or Offensive Use or Content. You may not use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include:

3.1.1 Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.

3.1.2 Harmful or Fraudulent Activities. Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.

3.1.3 Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.

3.1.4 Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.

3.1.5 Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.

3.2 No Security Violations. You may not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:

3.2.1 Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.

3.2.2 Interception.  Monitoring of data or traffic on a System without permission.

3.2.3 Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.

3.3 No Network Abuse You may not make network connections to any users, hosts, or networks unless You have permission to communicate with them. Prohibited activities include:

3.3.1 Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.

3.3.2 Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.

3.3.3 Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.

3.3.4 Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.

3.3.5 Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.

3.4 No E-Mail or Other Message Abuse. You will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.

3.5 Third Party Material. Under no circumstances will Appcelerator be liable in any way for any content uploaded by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content via the Services.   Appcelerator does not pre-screen content or review posted User Content, but You acknowledge that Appcelerator and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Appcelerator and its designees will have the right to remove any content that violates the terms herein or is deemed by Appcelerator, in its sole discretion, to be otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

4. Changes

4.1 To the Service Appcelerator may change, discontinue, or deprecate the Service or change or remove features or functionality of the Service from time to time. Appcelerator will notify You of any material change to or discontinuation of the Service.

4.2 To the APIs Appcelerator may change, discontinue or deprecate any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for twelve (12) months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).

5. Notices And Procedure For Making Claims Of Copyright Infringement

Appcelerator expressly prohibits the use of the Services for the illegal transmission of copyrighted material, and will respond if notified by content owners to disable copyrighted material from being transmitted via the Services.  In addition, Appcelerator may disable the Services on individual users if these users are found to be illegally transferring copyrighted material.

If You believe that your work has been copied in a way that constitutes copyright infringement, please provide Appcelerator’s Agent for notice of claims of copyright or other intellectual property infringement ("Agent") the written information specified below: (1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) A description of the copyrighted work that You claim has been infringed upon; (3) A description of where the material that You claim is infringing is located on the Site; (4) Your address, telephone number, and e-mail address; (5) A statement by You that You have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) A statement by You, made under penalty of perjury, that the above information in your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf. A notification of claimed copyright infringement should be emailed to Appcelerator’s copyright agent at legal@appcelerator.com.  You may also contact Appcelerator by mail at:

Appcelerator, Inc.

440 N. Bernardo Ave

Mountain View, CA 94043

6. Temporary Suspension

6.1. Generally, Appcelerator may suspend your or any End User’s right to access or use any portion or all of the Service immediately upon notice to You if we determine:

6.1.1. your or an End User’s use of or registration for the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or Content of any other customer of the Services, (iii) may subject Appcelerator, our Affiliates, or any third party to liability, or (iv) may be fraudulent;

6.1.2. You are, or any End User is, in breach of this Agreement, including if You are delinquent on your payment obligations for more than 15 days; or

6.1.3. You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.2. Effect of Suspension. If we suspend your right to access or use any portion or all of the Service:

6.2.1. You remain responsible for all fees and charges You have incurred through the date of suspension;

6.2.2. You remain responsible for any applicable fees and charges for any Service to which You continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; and

6.2.3. Appcelerator will not erase any of your User Content as a result of your suspension, except as specified elsewhere in this Agreement.

6.3. Our right to suspend your or any End User’s right to access or use the Service is in addition to our right to terminate this Agreement pursuant to Section 8.

7. 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.

8. Termination And Breach

8.1. Termination for Cause. Either party may terminate this Agreement, effective immediately upon written notice, under the following circumstances:

8.1.1. 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.

8.1.2. By Appcelerator. Appcelerator may also terminate this Agreement immediately upon notice to You (A) for cause, if any act or omission by You or any End User results in a suspension described in Section 6.1, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Service expires, terminates or requires Appcelerator to change the way we provide the software or other technology as part of the Services, (c) if we believe providing the Services could create a substantial economic or technical burden or material security risk for Appcelerator , (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Service by You or any End Users or our provision of any of the Services to You or any End Users has become impractical or unfeasible for any legal or regulatory reason.

8.2. Termination for Convenience. You may terminate this Agreement for any reason by (i) providing Appcelerator notice and (ii) closing your account for all Services for which we provide an account closing mechanism. Appcelerator may terminate this Agreement for any reason by providing You thirty (30) days advance notice.

8.3. Effect of Termination. Upon termination or expiration of this Agreement, the Services hereunder shall terminate, Customer shall immediately discontinue use of the Services and destroy or return 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 in-process tasks completed after the date of termination. Sections 2.3.1, 9.1, 8.3, 9 (except the license granted to you in Section 9.3), 10, 11, 12, 13, 14, 15, and 16 will continue to apply in accordance with their terms.

9. Proprietary Rights

9.1. Your User Content.As between You and us, You or your licensors own all right, title, and interest in and to your User Content. Except as provided in this Section 9, we obtain no rights under this Agreement from You or your licensors to your User Content, including any related intellectual property rights. You consent to our use of your User Content to provide the Services to You and any End Users. We may disclose your User Content to provide the Services to You or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).

9.2. Adequate Rights. You represent and warrant to us that: (a) You or your licensors own all right, title, and interest in and to your User Content and Your Submissions; (b) You have all rights in your User Content and Your Submissions necessary to grant the rights contemplated by this Agreement; and (c) none of your User Content or End Users’ use of your User Content, or the Services Offerings will violate the Acceptable Use Policy.

9.3. Services License. As between You and Appcelerator, we or our Affiliates or licensors own and reserve all right, title, and interest in and to the Services. We grant You a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term to access and use the Services solely in accordance with this Agreement. Except as provided in this Section 9, You obtain no rights under this Agreement from Appcelerator or our licensors to the Services, including any related intellectual property rights.

9.4. License Restrictions. Neither You nor any End User may use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither You nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services are provided to You under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services, (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Services. All licenses granted to You in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if You do not comply with any term or condition of this Agreement. During and after the Term, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our Affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services You have used.

10. 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 herein, 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.

11. Disclaimer Of Warranty

THE SERVICE OFFERINGS ARE PROVIDED "AS IS." APPCELERATOR AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, APPCELERATOR AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

12. Indemnity

12.1. General. You will defend, indemnify, and hold harmless Appcelerator, our Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Services (including any activities under your Services account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by You or any End User; (c) your User Content or the combination of your User Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your User Content or by the use, development, design, production, advertising or marketing of your User Content; or (d) a dispute between You and any End User. If we or our Affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, You will also reimburse Appcelerator for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

12.2. Process. Appcelerator will promptly notify You of any claim subject to Section 12.1, but our failure to promptly notify You will only affect your obligations under Section 12.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as You deem appropriate, provided that You obtain our prior written consent before entering into any settlement. Appcelerator may also assume control of the defense and settlement of the claim at any time.

13. 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 Products 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, provided Appcelerator does not disclose or otherwise use or make available any of Customer’s Confidential Information.

14. Limitation Of Liability; Allocation Of Risk

14.1. APPCELERATOR AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER APPCELERATOR NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

15. Fees and Payment Terms

Use of the Services may incur fees for use of the Services by the Application 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 Service as described on the Services 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 any Service or new feature of a Service will be effective when we post updated fees and charges on the Services Site unless we expressly state otherwise in a notice. Appcelerator may increase or add new fees and charges for any existing Services 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.

16 Miscellaneous Provisions

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

16.2 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.

16.3 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.

16.4 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.

16.5 Data Privacy Appcelerator collects certain metrics regarding use of the Service including storage space and bandwidth used, Communication Events (push/email), use of API Calls, and other services depending on the tier used. Customer must post a privacy policy and such policy must provide notice of Customer’s collection of any data by Customer’s Application. Appcelerator’s privacy policy available at www.appcelerator.com/privacy and is incorporated into this Agreement by reference.

16.6 Compliance with Laws Customer shall use the Service 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. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service, including your transfer and processing of your User Content, the provision of your User Content to End Users. 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 Services in violation of any U.S. export embargo, prohibition or restriction. By using the Services, Customers in the European Union understand and consent to the processing of personal information in the United States.

16.7 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.

16.8 Force Majeure Except for the payment of fees, 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.

16.9 Modifications to the Agreement Appcelerator may modify this Agreement (including any Policies) at any time by posting a revised version on the Services website or by otherwise notifying You. The modified terms will become effective upon posting or, if we notify You by email, as stated in the email message. By continuing to use the Service after the effective date of any modifications to this Agreement, You agree to be bound by the modified terms. It is your responsibility to check the Services website regularly for modifications to this Agreement. Appcelerator last modified this Agreement on the date listed at the beginning of this Agreement.

16.10 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.

17 DEFINITIONS

17.1 "API Calls" shall mean network request made by the Application to Appcelerator’s servers to store data, retrieve data, and/or trigger communication events.

17.2 "Application(s)" shall mean the software application products that Customer will use the Services with.

17.3 "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.

17.4 "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.

17.5 "Named User" shall mean the individual who is authorized to access and use the Products 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.

17.6 "Services" shall mean the Appcelerator Cloud Services.