Basic Evaluation Agreement

Thank you for your interest in trialling the Enterprise version of the Appcelerator Platform. You are only a few clicks away from getting access to the latest Appcelerator Platform for Enterprises that includes crash detection, one-click publishing to MobileIron and AirWatch as well as our revolutionary API tool Arrow Builder. Once the form is submitted you will be contacted by an Appcelerator team member to kickoff your Evaluation.

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Basic Evaluation Agreement

Last updated: 10/10/2013

PLEASE READ THIS BASIC EVALUATION AGREEMENT BEFORE USING THE PRODUCTS OR SERVICES. BY USING THE PRODUCTS OR SERVICES, CUSTOMER SIGNIFIES ITS CONSENT 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 IT MUST NOT USE THE PRODUCTS OR SERVICES.

This Basic Evaluation Agreement (“BEA”) is between Appcelerator, Inc. (“Appcelerator”) with its principal place of business at 440 N. Bernardo Ave., Mountain View, CA, 94043, USA and the user of Appcelerator’s Products or Services that accepts the terms of this Agreement (“Customer”). The effective date of this Agreement (“Effective Date”) is the earlier of the date that Customer accepts this Agreement or the date that Customer uses Appcelerator Products and/or Services. This BEA sets forth the general terms and conditions under which Appcelerator and Customer agree, that Appcelerator shall loan the items listed herein and provide the related services if any.

  1. EVALUATION PERIOD:

    This Evaluation Period begins on delivery of the Software and unless otherwise sooner terminated in accordance with the BEA, shall expire 30 days from date of electronic availability.

  2. SOFTWARE:

    Usage Included: 5 Named User Platform Licenses and 5 Test Devices
    Appcelerator Studio, Powered by Titanium

    • Unlimited DEMO NON-PRODUCTION Applications
    • 2,000,000 (monthly) Analytical Events
    • Appcelerator Performance Management
    • Standard Appcelerator Public Cloud Services (monthly): Up to 5M push notifications, 5M API calls (not to exceed 500,000 API calls per day), 20GB of storage, 100,000 emails

  3. EVALUATION AND TERMINATION:

    Appcelerator agrees to loan and Customer agrees to accept the loan of the Appcelerator Software listed in Section 2 during the Evaluation Period listed in Section 1. There is no charge to Customer for use of the Software during the Evaluation Period. This BEA may be terminated at any time by Appcelerator at its sole option.

  4. WARRANTY:

    DURING THE EVALUATION PERIOD APPCELERATOR (INCLUDING ITS SUPPLIERS) PROVIDES SOFTWARE AND SERVICES “AS IS” AND MAKES NO EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.

  5. SOFTWARE:

    5.1  Licenses:  Under this BEA, Appcelerator grants Customer a non-exclusive, non-assignable, non-transferable, non-sub-licensable, temporary and limited license to use the Software solely for the purpose of evaluating the Software in connection with Customer’s internal business purpose and to determine whether to purchase a non-evaluation version of the Software. Customer may create non-production demonstration mobile applications (“Application(s)”) during the Evaluation Period provided Customer complies with this BEA. Customer may not distribute, make commercial use of, publicly perform, or publicly display the Software without separate written permission from Appcelerator. Customer shall not disclose the results of any comparative or competitive analyses, benchmark testing, infringement testing, or analyses of Appcelerator’s Software to any third party. Appcelerator may terminate licenses, without liability, if Customer fails to comply with any provision of the BEA. Upon termination, Customer shall cease all use and return, or at Appcelerator’s option certify destruction of, Software (including copies) to Appcelerator. Customer shall not, without Appcelerator’s prior written consent, copy, provide, disclose or otherwise make available Software in any form to anyone other than Customer’s employees, consultants or independent contractors (“Personnel”), who shall use Software solely for Customer’s internal business purposes in a manner consistent with this BEA. Customer shall be fully responsible to Appcelerator for the compliance of its Personnel herewith. Any new revision of Software provided by Appcelerator is governed by this BEA.

  6. OWNERSHIP:

    Software is licensed only. No title to, or ownership of, the Software is transferred to Customer. Customer may only make one copy of Software for archive purposes only. Customer shall reproduce and include copyright and other proprietary notices on and in any copies, including but not limited to partial, physical or electronic copies, of the Software. Neither Customer nor any of its agents or Personnel shall modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, reverse compile or otherwise reduce to human readable form the Software without Appcelerator’s prior written consent.

  7. LIMITATIONS OF LIABILITY:

    APPCELERATOR’S (INCLUDING ITS SUPPLIERS’) 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). 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 BEA OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF APPCELERATOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

  8. APPCELERATOR PRIVACY POLICY:

    Appcelerator’s privacy policy available at www.appcelerator.com/privacy/ (http://www.appcelerator.com/privacy/) is incorporated into this BEA by reference.

  9. USE OF THE APPCELERATOR CLOUD SERVICES (“ACS”).

    ACS is designed to provide Customer with optional backend technology for cloud services enablement for Customer’s Application. If Customer elects to deploy ACS in its Application(s) the ACS terms posted at www.appcelerator.com/legal/acs-agreement/ (http://www.appcelerator.com/legal/acs-agreement/) shall apply to the Application’s use of ACS and are expressly incorporated into this BEA by reference. In case of a conflict between the ACS terms and the terms of this BEA, the terms of the ACS shall control solely as to the provision of the ACS only.

  10. USE OF THE APPCELERATOR PERFORMANCE MANAGEMENT SERVICES (“APMS”).

    10.1  Use.  The APMS specified shall be used solely by Customer for bug fixing, performance monitoring/management and other analytics with respect to the Applications and shall be limited to the Evaluation Period. The Application(s) will include integration code (the “APMS Integration Code”) in order to transmit data from the Application(s) to the APMS. The types of data transmitted and the frequency of transmission is determined solely by Customer through Customer’s configuration of the APMS Integration Code. Customer may reproduce and distribute the APMS Integration Code solely when embedded within the Application(s) and used solely for the purpose of transmitting data from the Application(s) to the APMS.

    10.2  Data.  Appcelerator (or a third party vendor on Appcelerator’s behalf) collects, receives, and generates data in connection with Customer’s use of the APMS (“Customer Data”) and in connection with User’s use of the Application(s) (“App User Data”). Customer grants Appcelerator (and its third party vendors subject to confidentiality obligations) the right to use, reproduce and distribute the Customer Data and App User Data in connection with Customer’s use of the APMS. Customer further grants Appcelerator (and/or a third party vendor on Appcelerator’s behalf) the worldwide, perpetual, irrevocable right to use, reproduce and distribute Customer Data and App User Data when it is aggregated with other information or otherwise is not specifically identifiable to Customer or any App User. Customer also consents to Appcelerator’s (and/or a third party vendor on Appcelerator’s behalf) disclosure of Customer Data and App User Data as may be required by law or legal process. Customer agrees not to transfer to Appcelerator (and/or to any third party vendor acting on Appcelerator’s behalf) any App User Data that is personally identifiable information, financial information, health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information (for example, Social Security Numbers), or that is used to target advertising to individual devices or App Users. Customer shall be solely responsible for ensuring that the Application(s) and Customer’s use of the APMS (including without limitation Customer’s provision of App User Data to Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) comply with all applicable laws, rules, and regulations. Customer shall obtain and maintain all rights required to permit the transfer of App User Data to Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) and to allow to Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) to use the App User Data pursuant to this BEA.

    10.3  Confidentiality.  The APMS shall be considered Confidential Information of Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) and the Customer Data and App User Data shall be considered Confidential Information of Customer.

  11. MISCELLANEOUS:

    Customer shall comply with and obtain all authorizations required by U.S. export control laws and all related regulations. Customer shall not assign this BEA or any right or delegate any performance. Appcelerator assumes no obligation to provide products or information to Customer for evaluation. Appcelerator shall have no obligation to provide support for the Software, or to develop a final version thereof or license any version thereof. Under no circumstances does this BEA obligate Appcelerator in any way to sell, lease, or otherwise provide any ownership interest in, or offer to license to use, the Software during or after the Evaluation Period. This BEA (i) is the complete statement of the BEA of the parties with regard to the subject matter hereof; (ii) may be modified only by a writing signed by both parties; (iii) is governed by the law of the State of California, excluding its conflict of law rules and The U.N. Convention on Contracts for the International Sale of Goods. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of this BEA is held unenforceable, the validity of the remaining provisions shall not be affected.