13. MISCELLANEOUS PROVISIONS
13.1 Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to Studio and Documentation, supersedes any prior or contemporaneous written or oral agreement or understandings between the parties with respect to Studio, 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 Appcelerator Analytics from Application(s). When you use Studio, you have access to Appcelerator Analytics up to the allowed free App Explore tier. Appcelerator Analytics enables you to track how your End Users use your Applications to improve your products and services. Appcelerator may collect certain information from End Users of your Applications, including, but not limited to platform, model, manufacturer, operating system version of the device on which the End User uses your application, the timestamps in which the End User launches and exits your application, Titanium SDK Version, and geolocation data (i.e., longitude and latitude of the location where the End User uses your Application) if geolocation APIs are used in Titanium SDK and if expressly granted by End User (“Appcelerator Analytics”). You may also create custom analytics events for your Application that are collected according to the execution logic of the Application, however You agree that you shall not create custom fields to collect and send personally identifiable information about your End Users to Appcelerator. Appcelerator Analytics is collected and sent back to Appcelerator’s servers. You can access this data up to the free App Explore tier, at any time by going to the my.appcelerator.com/apps page and clicking on the “Analytics” button for your Application. Usage of Appcelerator Analytics beyond the free App Explore tier shall incur fees listed at
. You may opt-‐out of Appcelerator Analytics for your Application by modifying the Application’s tiapp.xml file to change the setting to “false”. CUSTOMER MUST DISABLE APPCELERATOR ANALYTICS IF REQUIRED BY APPLICABLE LAW. In addition, Appcelerator shall have the right to use Appcelerator Analytics to compile and distribute statistical analyses and reports utilizing aggregated data derived from this information.
and is incorporated into this Agreement by reference.
13.7 Compliance with Laws. Customer shall use and distribute the Application 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 Studio 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. Studio 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, Studio 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.