Last updated November 29, 2012
PLEASE READ THIS AGREEMENT BEFORE USING THE SERVICES. BY USING THE APPCELERATOR PERFORMANCE MANAGEMENT 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 PERFORMANCE MANAGEMENT SERVICES.
This Appcelerator Performance Management Services (“Agreement”) is between Appcelerator, Inc. (“Appcelerator”) and the user of the Appcelerator Performance Management 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 Performance Management Services (“Services”). Crittercism, Inc. (“Crittercism”) is providing the services on behalf of Appcelerator and the following Crittercism terms and conditions shall apply to Customer’s use of the Services.
1.1 “App Users” means the users of the Customer App(s).
1.2 “Customer App(s)” means the mobile applications and services owned by Customer, as set forth in the Order Form.
1.3 “Crittercism Materials” means all materials created, developed and provided by Crittercism to Customer in connection with or arising from the Service or this Agreement, and all other elements of the Service provided by Appcelerator (for example, content, visual interfaces, interactive features, information, graphics, designs, and compilations).
1.4 “Crittercism Platform” means the Service that allows for bug tracking, performance monitoring/management, and other analytics to be performed for the Customer App(s), and any documentation for such Service.
1.5 “Crittercism Integration Code” means the Software (including without limitation code and scripts) provided by Crittercism to Customer for inclusion in the Customer App(s), including without limitation any updates, modifications or improvements thereto or derivative works thereof, as well as any documentation for such Software.
1.6 “Features” means the features and functionality of the Service in the Order Form and/or are otherwise made available to Customer by Crittercism, number of Authorized Accounts (defined in Section 4.2 below), and access to any application programming interfaces and integrations of the Service with any third-party products or services.
1.7 “Feedback” means any suggestions, ideas, enhancement requests, feedback, recommendations and any other information, including without limitation information identifying potential errors, Customer provides to Appcelerator or Crittercism, including without limitation in Crittercism developer forums or by email.
1.8 “Fees” means the Service fees, if any, payable by Customer to Appcelerator, as described in the Order Form and changed from time to time in accordance with this Agreement.
1.9 “Order Form” means the physical, electronic or online Appcelerator order form, as applicable, which is accepted by Appcelerator and describes Customer’s Subscription for the Crittercism Features on a per Customer App/per App User basis.
1.10 “Service” means the Software and all Crittercism services and products made available to Customer through or in connection with the Site and the Software.
1.11 “Site” means the Crittercism website located at http://www.crittercism.com, including without limitation all sub-domains thereof.
1.12 ”Software” means all Crittercism software made available to Customer by Crittercism.
1.13 “Subscription” means the Service with the Features identified in the Order Form.
2. CRITTERCISM PLATFORM AND INTEGRATION CODE.
2.1 Crittercism Platform. Subject to Customer’s compliance with this Agreement, Crittercism hereby grants Customer the non-transferable right during the Term (defined in Section 8.1) to access and use the Crittercism Platform internally for the sole purpose of performing bug fixing, performance monitoring/management, and other analytics for the Customer App(s) solely in accordance with the intended functionality of the Crittercism Platform. Customer is responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Crittercism Platform.
2.2 Crittercism Integration Code License. Subject to Customer’s compliance with this Agreement, Crittercism hereby grants Customer during the Term a limited, revocable, non-transferable, non sub-licensable, non-exclusive right and license:
(a) to install and use the Crittercism Integration Code internally for the sole purpose of using the Crittercism Integration Code to provide data from the Customer App(s) to the Crittercism Platform;
(b) to use, reproduce and distribute the Crittercism Integration Code solely as embedded within the Customer App(s) for the purpose of providing data from the Customer App(s) to the Crittercism Platform, provided that any such use, reproduction and distribution (i) is subject to terms at least as protective of Crittercism Integration Code as those set forth herein and (ii) is accompanied by all attributions, disclaimers and other provisions required by third-party license requirements, as may be provided to Customer by Crittercism; and
(c) to internally use any documentation made available by Crittercism to Customer for the sole purpose of exercising the foregoing licenses in this Section 2.
2.3 Results. Subject to Customer’s compliance with this Agreement, Crittercism hereby grants Customer the non-transferable right during the Term to access and use any results and reports produced through the Service (“Results”) internally for the sole purpose of improving the Customer App(s).
2.4 License Restrictions. Customer shall have no rights or licenses with respect to the Service or Crittercism Materials except as expressly provided in this Agreement. Without limiting the generality of the foregoing, except as expressly provided in this Agreement, Customer may not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service or Crittercism Materials; (b) make the Service or Crittercism Materials available to any third party; (c) use the Service or Crittercism Materials on a service bureau basis; (d) to the extent valid under applicable law, decompile, reverse engineer, or disassemble the Service or Crittercism Materials; (e) alter or modify the Crittercism Integration Code other than as may be reasonably necessary to use the Service for its intended purposes; (f) create derivative works based on the Service or Crittercism Materials; (g) intentionally interfere with or damage, impair, or disable the operation of the Service or any customer’s enjoyment of it, by any means, including without limitation uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code; or (h) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or Crittercism Materials or during the use and operation of the Service or Crittercism Materials. Without limiting any of the foregoing, Customer will not provide third parties access to the Crittercism Platform or, except as expressly provided in Section 2.2(b), access to or copies of the Crittercism Integration Code or any Crittercism documentation.
(a) In-App Feedback Forums. If Customer elects to have a feedback forum supported or enabled by the Crittercism Integration Code in any Customer App (such forum, an “In-App Feedback Forum”), Customer acknowledges and agrees that Crittercism collects and retains as Customer Data (defined in Section 3.1) or App User Data (defined in Section 3.1), as applicable, all comments and other content that Customer and App Users provide or post in any In-App Feedback Forum. Customer acknowledges and agrees that Customer is responsible for all such comments and content and any monitoring, management or moderation of any such In-App Feedback Forum. Customer agrees that Crittercism will not be liable for any such comments and content or use of any In-App Feedback Forum.
2.6 Ownership. As between the parties Crittercism retains all right, title and interest in and to the Service and any Crittercism Materials, including without limitation all intellectual property rights related to each of the foregoing. Crittercism reserves all rights not explicitly granted in this Agreement. The Service and Crittercism Materials are protected by United States copyright, trade dress, patent, trade secret and trademark laws, international conventions, and all other applicable laws. Customer agrees to assign and hereby does assign and otherwise transfer all right, title and interest in and to Feedback to Crittercism, without payment or restriction.
2.7 Additional Restrictions. Except in accordance with any application programming interface agreements Customer may have with Crittercism, Customer may not use any automated means, including without limitation agents, robots, scripts, or spiders, to access or manage Customer’s account(s) with the Service. Customer agrees not to (a) remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features the enforce limitations on the use of the Service; (b) gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (c) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (d) post any content or material to the Service that promotes or endorses false or misleading information or illegal activities, or endorses or provides instructional information about illegal activities or other activities prohibited by this Agreement; (e) upload or otherwise transmit to the Service any information that is unlawful, harmful, harassing, defamatory, libelous, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind or information that contains a link to such objectionable material; (f) solicit or attempt to solicit personal information from other customers of the Service; and (g) make unsolicited offers, advertisements, proposals, or send spam to other customers of the Service. Crittercism may suspend access to the Service as provided in Section 8.2 or terminate Customer’s Subscription, in whole or in part, at any time if Crittercism reasonably determines that such action is appropriate to (i) prevent errors or any other harm with respect to the Service or other properties, services, web sites and applications serviced by the Service, (ii) respond to Customer’s breach of this Agreement, or (iii) limit Crittercism’s liability. Crittercism shall notify Customer following any such suspension or termination.
3.1 Data Rights. In connection with the operation of the Service, Crittercism collects, receives, and generates data in connection with Customer’s use of the Service (such data, “Customer Data”) and in connection with App Users’ use of the Customer App(s) (such data, “App User Data”). Customer grants Crittercism the worldwide, perpetual, irrevocable right to (i) access, use, store, display, disclose and transfer Customer Data and App User Data in connection with providing the Service to Customer, operating and improving the Service, developing new products and services, and for Crittercism’s other business purposes (provided that Crittercism will not disclose or transfer Customer Data or App User Data in a manner that specifically identifies Customer or App Users without Customer’s consent, except as otherwise set forth in this Section 3.1); (ii) access, use, store, display, disclose, and transfer Customer Data and App User Data as may be required or permitted by law or legal process, or to protect Crittercism’s rights or property (including without limitation, enforcement of Crittercism’s agreements) or the rights, property, or safety of any person or entity; and (iii) display, disclose and transfer Customer Data and App User Data (a) to third-party vendors who perform services for Crittercism and are bound by confidentiality obligations; and (b) to an acquirer, successor, or assignee, and its legal representatives, in connection with any merger, acquisition, debt financing, sale of company assets, or similar transaction, as well as in the event of an insolvency, bankruptcy, or receivership in which Customer Data or App User Data is transferred to a third party as one of Crittercism’s business assets. Customer further grants Crittercism the worldwide, perpetual, irrevocable right to display, disclose, transfer and sell Customer Data and App User Data when it is aggregated with other information or otherwise is not specifically identifiable to Customer or the App User(s).
3.3 International Use. The Crittercism Service is controlled and offered by Crittercism from its facilities in the United States, and the Crittercism servers and data centers are located in the United States. Crittercism makes no representations that the Crittercism Service is appropriate or available for use in other locations. If Customer accesses or uses the Crittercism Service from other jurisdictions, Customer does so at its own risk and is responsible for compliance with local law. If Customer chooses to use the Service from outside the U.S., then Customer acknowledges that Customer is transferring Customer Data and App User Data outside of Customer’s region and into the U.S. for storage and processing. By providing Customer Data and App User Data to Crittercism through Customer’s use of the Service, Customer agrees to that transfer, storage, and processing in the U.S. Also, Crittercism may transfer Customer’s data from the U.S. to other countries or regions in connection with storage and processing of data, fulfilling Customer’s requests, and operating the Service. Customer should know that each region can have its own privacy and data security laws, some of which may be less stringent as compared to those of Customer’s own region.
4.2 Authorized Accounts. Customer may create Crittercism accounts with unique log-in credentials for designated users to access and use the Service on Customer’s behalf (“Authorized Accounts”). The number of Authorized Accounts Customer can create may be limited as set forth in the Order Form. Customer is solely responsible at all times for (a) ensuring that all of Customer’s accounts are used solely in accordance with this Agreement, (b) maintaining the confidentiality of all log-in credentials for Customer’s accounts and restricting access to Customer’s computer, and (c) for the activities of any person accessing the Crittercism Platform using any of Customer’s accounts.
5. FREE TRIAL EVALUATION. Customer may be offered free trials of versions or features of the Service (“Free Trials”). Crittercism will determine, at its sole discretion, the availability, duration (the “Trial Period”) and Features of each Free Trial. THE FREE TRIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES. Notwithstanding anything to the contrary in this Agreement, in no event will Crittercism be liable to Customer or any third party for any damages or liability related to, arising out of, or caused by the Free Trials and any modification, suspension, or termination thereof. If Crittercism permits Customer to use the Free Trials, Customer agrees to provide Feedback and respond to Crittercism’s questions or other inquiries regarding Customer’s use of the Free Trial, as applicable. Crittercism at its sole discretion shall determine whether or not to continue to offer Free Trial. Upon completion of a Trial Period, Customer will lose access to the applicable Free Trial, unless Customer is permitted to add and add such features to Customer’s Subscription. Except as provided in this Section 5, this Agreement governs Customer’s use of the Free Trials, as part of the Service.
7. FEES; PAYMENT.
7.1 Payment Method. Customer authorizes Appcelerator to charge Customer for all Fees by the payment method indicated on the Order Form (“Payment Method”). Customer acknowledges and agrees that any credit card and related billing and payment information that Customer provides to Appcelerator is deemed to be Customer Data and may be shared by Appcelerator with companies that work on Appcelerator ‘s behalf, such as payment processors and/or credit agencies, for the purpose of checking credit, effecting payment to Appcelerator and servicing Customer’s account. The terms of Customer’s payment will be based on Customer’s chosen Payment Method and may be determined by agreements between Customer and the financial institution providing such Payment Method.
7.2 Fees. Customer agrees to pay Appcelerator all Fees incurred under Customer’s accounts for all Services to which Customer or anyone else who uses Customer’s accounts subscribe pursuant to this Agreement. If Customer’s Payment Method fails or Customer’s accounts are past due, (a) Customer agrees to pay all amounts due on Customer’s account upon demand, (b) Appcelerator may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with Appcelerator), (c) Appcelerator reserves the right to either suspend or terminate Customer’s Services, or Customer’s account with Crittercism, and/or (d) Customer agrees to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. All Fees are due and payable in U.S. dollars. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Appcelerator’s income. All Fees are non-refundable unless otherwise provided by law. Notwithstanding the foregoing, Customer will be given a refund of the Fees Customer has paid in advance for the unused portions of the Term if the Service is permanently discontinued by Crittercism or if this Agreement or Customer’s Subscription is terminated by Crittercism for any reason other than as provided in this Section 7 and Sections 2.7, 8.2 and 8.3. Appcelerator reserves the right to change the Fees payable by Customer for the Service for any Renewal Term, by written notice prior to such Renewal Term, and otherwise during the Initial Term or any Renewal Term, upon 30 days’ prior written notice to Customer.
8. TERM; TERMINATION.
8.1 Term. The term of this Agreement shall be as described in the Order Form. Unless otherwise agreed to on the Order Form, the term of this Agreement shall commence on the Effective Date and end on the day prior to the twelve-month anniversary of the Effective Date (“Initial Term”) and will automatically renew for sequential twelve-month periods (each such period, a “Renewal Term”) (the Initial Term together with all Renewal Terms, collectively, the “Term”). Customer will be notified in advance of impending Renewal Terms.
8.2 Suspension. If Customer or Customer’s use of the Service negatively affects, or is reasonably expected to negatively affect, any part of the Service, including without limitation in the event of breach of Customer’s payment obligations, then Crittercism reserves the right to suspend the Service or change the level of the Service, including without limitation the Features, provided to Customer, with or without notice and without liability to Customer.
8.3 Termination for Cause. Appcelerator shall have the right to immediately terminate this Agreement should Customer breach any of Customer’s representations and warranties. Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days (or 10 days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party. Either party may terminate immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within 30 calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
8.4 Termination for Convenience. Appcelerator, at its sole discretion, has the right to terminate this Agreement and refuse any and all current or future use of the Service by Customer, for any reason at any time without any liability to Customer upon 30 days’ prior written notice to Customer. Customer may also terminate this Agreement and its Subscription and discontinue its use of the Service at any time by providing Appcelerator 30 days’ prior written notice of termination, provided that no refund will be made for payments already made by Customer and that all payments that would have been due by Customer to Appcelerator throughout the remaining Term if such termination had not taken place shall immediately become payable in full by Customer to Appcelerator.
8.5 Effect of Termination. Sections 1, 2.4, 2.6, 2.7, 3, 6, 7, 8.5, 10, 11, 12.2, and 13 through 16 of this Agreement shall survive expiration or termination of this Agreement. Upon termination or expiration of this Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Service, and at Crittercism’s request, return or destroy all Crittercism Materials, and certify such return or destruction in writing. Termination of the Service will result in the forfeiture of any and all Customer Data and App User Data. Crittercism may continue to use such Customer Data and App Data as permitted under this Agreement.
9. SUPPORT AND SERVICE UPGRADES. Appcelerator may at its discretion provide customer support via email support @ appcelerator.com to Customer with respect to Customer’s use of the Service, including without limitation to integrate the Crittercism Integration Code with the Customer App. If Crittercism releases any production-ready updates or upgrades to the Service, it is Customer’s responsibility to install such updates or upgrades and use the latest production-ready version of the Service to receive the full Features of Customer’s Subscription and Crittercism is not responsible for any consequence due to Customer’s failure to do so (including without limitation Customer’s inability to access any Features of the Service).
10. REPRESENTATIONS AND WARRANTIES.
10.1 Mutual. Each party represents and warrants to the other party that: (a) it has the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
11.1 NO WARRANTIES; “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND CRITTERCISM MATERIALS ARE PROVIDED “AS IS” AND CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICE AND CRITTERCISM MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) IS AT CUSTOMER’S SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER APPCELERATOR NOR CRITTERCISM MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND APPCELERATOR AND CRITTERCISM EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.
11.2 SERVICES AND CRITTERCISM MATERIALS. CRITTERCISM, APPCELERATOR AND ITS AFFILIATES, SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE SERVICE OR CRITTERCISM MATERIALS WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, CRITTERCISM MATERIALS OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. APPCELERATOR AND CRITTERCISM DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE CRITTERCISM MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) AND HAS NO LIABILITY FOR CUSTOMER’S USE OF THE CRITTERCISM MATERIALS. CUSTOMER UNDERSTANDS AND AGREES THAT IF CUSTOMER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS CRITTERCISM MATERIALS (INCLUDING WITHOUT LIMITATION RSS FEEDS AND ANY PLUG-INS) OR ANY THIRD PARTY SERVICES (DEFINED IN SECTION 11.4), IT IS AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING WITHOUT LIMITATION CUSTOMER’S COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF CRITTERCISM MATERIALS. APPCELERATOR AND CRITTERCISM DO NOT WARRANT THE COMPATIBILITY OF ANY SOFTWARE WITH THE CUSTOMER APP(S). FUTURE VERSIONS OF THE SERVICE AND CRITTERCISM MATERIALS MAY BE DEVELOPED AND RELEASED BY CRITTERCISM AT ITS SOLE DISCRETION, AND CRITTERCISM DOES NOT WARRANT THAT IT WILL DEVELOP OR RELEASE ANY UPDATES OR UPGRADES TO THE SERVICE OR CRITTERCISM MATERIALS.
11.3 THIRD PARTY SERVICES. CRITTERCISM OR THIRD PARTIES MAY PROVIDE LINKS, REFERRALS OR FEATURES IN THE SERVICE TO AND FROM OTHER SERVICES, PRODUCTS, WEBSITES OR CONTENT (“THIRD PARTY SERVICES”). APPCELERATOR AND CRITTERCISM HAVE NO CONTROL OVER SUCH THIRD PARTY SERVICES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY OR RELIABILITY OF THIRD PARTY SERVICES LINKED TO BY THE SERVICE. CRITTERCISM AND APPCELERATOR PROVIDE THIRD PARTY SERVICE LINKS, REFERRALS AND FEATURES TO CUSTOMER ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL OR FEATURES ON THE SERVICE DOES NOT IMPLY CRITTERCISM OR APPCELERATOR’S AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD PARTY SERVICE OR ANY CONTENT THEREIN. ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES, IS SOLELY AT CUSTOMER’S OWN RISK. WHEN CUSTOMER LEAVES THE SERVICE, CRITTERCISM’S TERMS AND POLICIES NO LONGER GOVERN. CUSTOMER SHOULD REVIEW APPLICABLE TERMS AND POLICIES, INCLUDING WITHOUT LIMITATION THE PRIVACY AND DATA GATHERING PRACTICES, OF ANY THIRD PARTY SERVICES. LIKE ANY FEATURE OF THE SERVICE, INTEGRATION WITH AND/OR ACCESS TO/FROM ALL OR ANY PART OF CRITTERCISM’S SERVICE FROM THIRD PARTY SERVICES, COLLECTED DATA, OR OTHERWISE MAY NOT CONTINUE AT ANY TIME.
12.1 Appcelerator Indemnification. Appcelerator agrees to defend or settle, at its option, any claim, demand, action, or proceeding initiated by a third party against Customer to the extent alleging that the technology underlying the Service, or any portion thereof, infringes any third party United States patent or copyright, provided that Customer: (a) promptly notifies Appcelerator in writing of the claim, except that any failure to provide this notice promptly only relieves Appcelerator of its responsibility pursuant to this Section 12.1 to the extent its defense is materially prejudiced by the delay; (b) grants Appcelerator sole control of the defense and/or settlement of the claim; and (c) provides Appcelerator, at Appcelerator’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Customer’s respective confidentiality obligations and preservation of attorney/client and work product privileges. In the event of a claim, demand, action or proceeding that the technology underlying the Service, or any portion thereof, infringes or misappropriates any third party intellectual property or other right or, if in Appcelerator’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, Appcelerator shall have the right, at Appcelerator’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the Service or (ii) modify or replace, in whole or in part, the affected portion of the Service to eliminate the infringement or misappropriation. If Appcelerator is unable to achieve either of the foregoing (i) or (ii) in a commercially reasonable manner, Appcelerator shall have the right to immediately terminate this Agreement upon written notice to Customer without liability therefor. The provisions of this Section 12.1 constitute Customer’s sole remedy and Appcelerator and Crittercism’s exclusive liability related to the Service with respect to any infringement, violation, or misappropriation of any Intellectual Property Right.
12.2 Customer Indemnification. Customer agrees to indemnify, defend, and hold Appcelerator, Crittercism and its affiliates and their respective directors, officers, employees and contractors harmless from and against any liabilities, damages or expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent arising out of or relating to: (i) the alleged or actual breach of any of Customer’s covenants, representations or warranties in this Agreement, (ii) the Customer App(s), including without limitation any actual or alleged violation of any applicable privacy policies or third-party terms or (iii) App User(s) (including without limitation Customer’s disputes with App Users), in each case, provided that Appcelerator and/or Crittercism: (a) promptly notifies Customer in writing of the claim, except that any failure to provide this notice promptly only relieves Customer of its responsibility pursuant to this Section12.1 to the extent its defense is materially prejudiced by the delay; (b) grants Customer sole control of the defense and/or settlement of the claim; and (c) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Appcelerator and/or Crittercism’s respective confidentiality obligations and preservation of attorney/client and work product privileges. Customer is solely responsible for Customer’s involvement with App Users.
13. LIMITATION OF LIABILITY.
13.1 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 12.1 (CUSTOMER INDEMNIFICATION), CUSTOMER’S BREACH OF SECTIONS 2 (CRITTERCISM PLATFORM AND CRITTERCISM INTEGRATION CODE) OR 3 (DATA), OR EITHER PARTY’S BREACH OF SECTION 10 (REPRESENTATIONS AND WARRANTIES), NEITHER PARTY (INCLUDING CRITTERCISM) SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
13.2 LIMITATION OF DAMAGES. IN NO EVENT WILL APPCELERATOR OR CRITTERCISM’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE GREATER OF $100 OR THE SUM OF THE TOTAL FEES PAID AND PAYABLE TO APPCELERATOR UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13.3 LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN. CERTAIN JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF CUSTOMER RESIDES IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO CUSTOMER TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH CUSTOMER IS LOCATED.
14.1 “Confidential Information” means any and all information that is disclosed by either party to the other party (including Crittercism), either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within 15 days of the disclosure. In the case of Appcelerator, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
14.2 Use and Disclosure Restrictions. Each party (including Crittercism) shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Except as otherwise permitted expressly by this Agreement, each party (including Crittercism) shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party (including Crittercism) will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party (including Crittercism) from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party (including Crittercism) may disclose the provisions of this Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
15. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS.
15.1 Crittercism and Appcelerator respect the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and Appcelerator and Crittercism asks its customers to do the same. Infringing activity will not be tolerated on or through the Site.
15.2 Procedure for Reporting Claimed Infringement.
(a) If Customer believes that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right Customer owns or controls, then Customer must promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Customer’s communication must include substantially the following:
(b) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(1) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(2) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Crittercism to locate the material;
(3) Information reasonably sufficient to permit Crittercism to contact Customer, such as an address, telephone number, and, if available, an electronic mail address at which Customer may be contacted;
(4) A statement that Customer has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(5) A statement that the information in the notification is accurate, and under penalty of perjury, that Customer is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Customer should consult with Customer’s own lawyer and/or see 17 U.S.C. § 512 to confirm Customer’s obligations to provide a valid notice of claimed infringement.
15.3 Designated Agent Contact Information. Crittercism’s Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail: Legal@appcelerator.com
Via U.S. Mail:
440 N. Bernardo Ave.
Mountain View, CA 94043
ATTN: Copyright Agent
15.4 Counter Notification.
(a) If Customer receives a notification from Crittercism that material made available by Customer on or through the Site has been the subject of a Notification of Claimed Infringement, then Customer will have the right to provide Crittercism with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Crittercism’s Designated Agent through one of the methods identified in Section 15.3, and include substantially the following information:
(1) A physical or electronic signature of the subscriber;
(2) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(3) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(4) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Crittercism may be found, and that the subscriber will accept service of process from the person who provided notification under Section 15.2 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
15.5 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Crittercism] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Crittercism and Appcelerator reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law. For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 15 should be sent to the Designated Agent at copyright @ crittercism.com or to the postal address identified above. Any other comments, compliments, complaints or suggestions about Crittercism, the operation of the Site or any other matter should be sent to legal @ Appcelerator.com.
16.1 Publicity. Customer agrees not to use any Crittercism logos, graphics, or trademarks without Crittercism’s express written consent.
16.2 Export Laws. Customer acknowledges and agrees that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data. Customer shall not export or re-export the Crittercism Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.
16.3 Relationship of the Parties. The parties (including Crittercism) are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
16.4 Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
16.5 Assignment. Customer may not assign any of Customer’s rights or obligations under this Agreement without Appcelerator’s prior written consent. Appcelerator may freely assign its rights and obligations under this Agreement without Customer’s consent. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
16.6 Headings and Wording. Unless otherwise expressly stated in this Agreement, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. The words “include” and “including” shall not be construed or interpreted as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month, and calendar year. Section headings are for reference purposes only, and should not be used in the interpretation hereof. No provision of this Agreement will be construed against either party as the drafter thereof.
16.7 Notices. All notices under this Agreement shall be given in writing and sent by registered mail, internationally recognized carrier, email, or facsimile transmission with machine confirmation or shall be delivered by hand to following addresses.
440 N. Bernardo Ave.
Mountain View, CA 94043
Attn: General Counsel
legal @ appcelerator.com
Customer: Via information provided in the Order Form.
All notices shall be presumed to have been received when they are hand delivered, or five business days of their mailing, or on the business day following the day of a successful email or facsimile transmission.
16.8 Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
16.9 Claims. CUSTOMER AND APPCELERATOR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
16.10 Construction. This Agreement shall be fairly interpreted and construed in accordance with its provisions and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. No trade usage or other regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express provisions of this Agreement. In case of a conflict between the Order Form and this Agreement, the Order Form shall govern.
16.11 Severability; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.
16.12 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
16.14 Third-Party Beneficiary. All parties agree that Crittercism, Inc. shall be, and is hereby, named as an express third-party beneficiary of this contract, with full rights as such.