Last updated October 10, 2012
THIS IS A LONG AGREEMENT OF LEGALESE THAT NOBODY IN THEIR RIGHT MIND WOULD READ WITHOUT BEING BRAIN DAMAGED OR JAILED FOR LIFE. WE CAN’T CHANGE IT – RULES ARE RULES – SO WE’RE MAKING IT LOOK REALLY BORING, COMPLEX AND OVERLY IMPORTANT BY USING SMALL FONTS AND CAPITALIZED WORDS HERE AND THERE.
For clarification, this Agreement expressly does not cover the use or license of Titanium SDK. Titanium SDK, Titanium CLI and Alloy are licensed under the Apache License, Version 2.0, see http://www.apache.org/licenses/LICENSE-‐2.0.html, and may be found on Github at http://github.com/appcelerator/titanium_mobile, http://github.com/appcelerator/titanium and http://github.com/appcelerator/alloy respectively.
Titanium Studio at the App Explore level is a free closed-‐source commercial product subject to the terms herein. Use of Studio under App Explore is provided absolutely free of charge. Use of the Appcelerator Analytics and/or Appcelerator Cloud Services is free up to a certain tier found at http://www.appcelerator.com/plans-pricing. You may incur fees or have certain usage disabled or reduced for usage beyond the free App Explore tier as set forth on the Appcelerator website. No support or other services will be available from Appcelerator under the terms of this Agreement at the App Explore level.
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT BEFORE INSTALLING OR USING TITANIUM STUDIO (“STUDIO”) . BY INSTALLING OR USING STUDIO, 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 STUDIO.
This Software License Agreement (“Agreement”) is between Appcelerator, Inc. (“Appcelerator”) and the user of Studio that accepts the terms of this Agreement (“Customer” or “You”). The effective date of this Agreement (“Effective Date”) is the earlier of the date that Customer downloads or uses Studio.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about Studio (“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. Nothing in this Agreement will, or is intended to, limit Appcelerator’s ability to develop or enhance Studio and in any manner whatsoever, including use of residual knowledge.
2. LICENSE GRANT
2.1 Rights Granted to Customer. Subject to the terms and conditions of this Agreement, Appcelerator grants to Customer a non-‐transferable, non-‐exclusive, world-‐wide license to install and use Studio on a computer owned or leased by Customer and to access and use Studio solely to develop Applications and to include the Runtime as part of the Applications. Studio may make Internet connections to remote servers to (a) check for updates; and (b) provide developer usage statistics regarding Studio (“Studio Analytics”) used by Appcelerator to improve Studio. Studio may also connect to the Internet at any time to confirm compliance with this Agreement.
2.2 Delivery of Studio. Appcelerator shall deliver Studio and Documentation to Customer ex works via electronic download.
2.3 License Restrictions. Customer is granted no rights in Studio other than those limited rights expressly set forth in this Agreement and Appcelerator expressly reserves to itself all rights not granted to Customer. Studio and the Documentation are licensed, not sold. Customer acknowledges that Studio is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Accordingly, except as expressly permitted in this Agreement, Customer agrees not to and shall not allow any third party to: (a) modify, adapt, alter, recast, transform, translate or create derivative works from Studio; (b) use (or cause or permit to be used) Studio for rental, lease, service bureau or application service provider, as part of a software as a service offering; (c) distribute, sublicense, lease, rent, sell, loan or otherwise transfer Studio to any third party; (d) reverse engineer, decompile, or disassemble Studio, except to the extent such activities are permitted under applicable mandatory laws that may not be limited by contract, potentially including, without limitation, laws implementing EU Directive 91/250/EEC provided, however, that Customer shall not exercise any such rights without giving Appcelerator thirty (30) days prior written notice and an opportunity to provide interoperability information or other items to Customer to alleviate the need to engage in the activities that are prohibited under this Agreement ; (e) Studio may not be copied or otherwise reproduced; (f) remove, alter or obscure in any way any copyright or other proprietary rights on or within Studio and or the Documentation; (g) build a product or service competitive to Studio utilizing Appcelerator’s Confidential Information (as defined below); (i) incorporate Studio with third party products or services to create a combined offering; or (j) copy any features, functions or graphics of Studio. Customer understands and agrees that under no circumstances shall Customer re-‐sell, re-‐distribute or re-‐package Studio to another third-‐party. For the avoidance of doubt, redistribution of the Application which may include the Appcelerator Cloud Services in a third-‐party application marketplace (such as Apple iTunes) or to the Customer’s End User is expressly granted.
2.4 Advertisements. Appcelerator expressly reserves the right to serve ads in Studio itself but not the right to serve ads in any Customer Applications unless Customer has given express consent. If and only if Customer has expressly signed up for ad delivery in its Application via separate third party ad vendors (see ad-‐modules available in Appcelerator’s Open Mobile Marketplace), then Customer grants Appcelerator the right to include ads on Customer’s behalf in the Applications developed with Studio.
2.5 Open Source Software. The Open Source Software is licensed under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses directory, the Documentation or other materials accompanying Studio. Copyrights to the Open Source Software are held by copyright holders indicated in the copyright notices in the corresponding source files or in the open_source_licenses file (or similarly named file such as “CREDITS”) or other materials accompanying Studio.
3. USE OF THE APPCELERATOR CLOUD SERVICES (“ACS”)
ACS is designed to provide Customer with optional backend technology for cloud services enablement for your Application. If You choose to deploy ACS in your Application, then ACS terms posted at www.appcelerator.com/legal/legal-‐agreements/acs shall apply to the Application’s use of ACS and are expressly incorporated into this Agreement by reference. In case of a conflict between the ACS terms and the terms of this Agreement, the terms of the ACS shall control solely as to the provision of the ACS only. Use of ACS beyond the allocated free tier provided under App Explore shall incur a charge as set forth at http://www.appcelerator.com/plans‐pricing.
Title to Studio shall not pass from Appcelerator to Customer. Studio shall at all times remain the sole and exclusive property of Appcelerator. Subject to the foregoing, Customer shall own all right, title and interest in and to the Application and user content contained in the Application.
5. TERM OF AGREEMENT
Unless otherwise terminated earlier in accordance with the terms of this Agreement, the initial term of this Agreement shall begin on the Effective Date.
6. TERMINATION AND BREACH
6.1 Termination for Cause Either party may terminate this Agreement, effective immediately upon written notice, if either party materially breaches any term of this Agreement and such breach has not been cured within thirty (30) days after the other party has given written notice of such breach, the non-‐breaching party may terminate this Agreement.
6.2 Termination for Convenience. You may terminate this Agreement for any reason by providing Appcelerator notice. Appcelerator may terminate this Agreement for any reason by providing You thirty (30) days advance notice.
6.3 Effect of Termination. Upon termination or expiration of this Agreement, the Studio license granted hereunder shall terminate, and Customer shall immediately discontinue use of and de-‐install Studio. Customer shall destroy all Appcelerator Confidential Information. Notwithstanding the foregoing, Customer is granted a perpetual license to use the Runtime as part of the Application(s) created using Studio. Customer remains responsible for all fees and charges that is has incurred through the date of termination, including fees and charges for Appcelerator Cloud Services and Appcelerator Analytics as applicable.
6.4 Survival of Certain Conditions. Notwithstanding anything to the contrary contained in this Agreement, Sections 1 (“Feedback”), 2.3 (“License Restrictions”), 4 (“Ownership”), 6.3 (“Effect of Termination”), 6.4 (“Survival of Certain Conditions”), 7 (“Injunctive Relief”), 8 (“Disclaimer of Warranty”), 9 (“Indemnity”), 10 (“Confidential Information”), 11 (“Limitation of Liability; Allocation of Risk”), 12 (“Fees”) 13 (“Miscellaneous Provisions”) and 14 (“Definitions”) shall in all cases survive any expiration or termination of this Agreement.
7. INJUNCTIVE RELIEF
Customer understands and agrees that Appcelerator may suffer irreparable harm in the event that Customer fails to comply with any of its obligations hereunder, and that monetary damages in such event may be inadequate to compensate Appcelerator. Consequently, in such event Appcelerator may be entitled, in addition to such monetary relief as may be recoverable by law, to such temporary, preliminary and/or permanent injunctive relief as may be necessary to restrain any continuing or further breach by Customer.
8. DISCLAIMER OF WARRANTY
STUDIO, THE DOCUMENTATION, AND ANY SERVICES (PROVIDED IN APPCELERATOR’S SOLE DISCRETION) ARE PROVIDED “AS IS” WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. APPCELERATOR DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF STUDIO, OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE. APPCELERATOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN STUDIO WILL MEET THE REQUIREMENT OF CUSTOMER OR ANY CUSTOMER OF CUSTOMER OR THAT THE OPERATION OF STUDIO WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF STUDIO. APPCELERATOR MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-‐INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPCELERATOR, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
Customer shall defend, indemnify and hold Appcelerator harmless from and against all judgments, penalties, damages, settlements, costs and expenses (including reasonable legal fees and costs), losses or liabilities which may arise or result from: (a) any violations of this Agreement by Customer; (b) any Application; (c) Customer’s breach of Section 13.7 (Compliance with Laws) of this Agreement; and/or (d) Customer’s violation of any rights of another.
10. CONFIDENTIAL INFORMATION
As used herein, “Confidential Information” means non-‐public information of Appcelerator that is disclosed to Customer, including but not limited to information about Studio and Documentation. Appcelerator may disclose to Customer certain Confidential Information and Customer agrees that the Confidential Information is the sole and exclusive property of Appcelerator (or a third party providing such information to Appcelerator). 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 destroy 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.
11. LIMITATION OF LIABILITY; ALLOCATION OF RISK
11.1 Limitation of Liability. APPCELERATOR’S TOTAL AGGREGATE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, ANY CLAIM WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, CAUSED BY APPCELERATOR’S SOLE NEGLIGENCE, IN AN AMOUNT NOT TO EXCEED FIVE DOLLARS (US $5).
11.2 Exclusion of Damages. TO THE FULL EXTENT ALLOWED BY LAW, APPCELERATOR EXCLUDES ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF APPCELERATOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
11.3 Allocation of Risk. Appcelerator and Customer agree that the foregoing Section 11.1 and Section 11.2 on limitation of liability and the Section 8 above on exclusion of warranties fairly allocate the risks in the Agreement between the parties. Appcelerator and Customer further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 11 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
12. FEES AND PAYMENT TERMS
Studio is provided free of charge. Use of the Appcelerator Analytics and/or ACS may incur fees for use beyond the free App Explore tier as set forth on the Appcelerator website http://www.appcelerator.com/plans‐pricing. Use of the ACS by your Application may incur fees for use associated with storage space, per bandwidth charge, Communication Events (push/email), use of API Calls, and other services depending on the tier of services. Appcelerator calculates and bills fees and charges monthly. Appcelerator may bill You more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-‐payment. You will pay Appcelerator the applicable fees and charges for use of the Appcelerator Analytics and/or ACS as described on the Appcelerator Site using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for Appcelerator Analytics and/or ACS or new feature of a service will be effective when we post updated fees and charges on the Appcelerator website unless we expressly state otherwise in a notice. Appcelerator may increase or add new fees and charges for any existing Appcelerator Analytics and/or ACS by giving You at least 30 days advance notice. Appcelerator may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. All fees and charges payable by You are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide Appcelerator any information we reasonably request to determine whether we are obligated to collect VAT from You, including your VAT identification number. If You are legally entitled to an exemption from any sales, use, or similar transaction tax, You are responsible for providing Appcelerator with legally-‐sufficient tax exemption certificates for each taxing jurisdiction. Appcelerator will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, You will notify Appcelerator and will pay Appcelerator any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, You will provide Appcelerator with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
13. MISCELLANEOUS PROVISIONS
13.1 Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to 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 http://www.appcelerator.com/plans‐pricing. 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.
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.
14.1 “API Calls” shall mean network request made by the Application to Appcelerator’s servers to store data, retrieve data, and/or trigger communication events.
14.2 “Application” shall mean the software application Studios that Customer will develop using Studio.
14.3 “Communication Events” shall mean a push notification sent to an Application End User’s mobile device, or an email sent to an Application End User’s email account. A single API call made by the Application may trigger multiple communication events.
14.4 “Documentation” shall mean the end-‐user guides and manuals customarily provided by Appcelerator to developers for use with Studio.
14.5 “End User” shall mean a customer licensed to use the Application for its own internal business operations, but not for allowing further access, sublicensing or distribution to third parties.
14.6 “Open Source Software” shall mean various open source software components licensed under the terms of applicable open source license agreements. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.
14.7 “Studio” or “Studio” shall mean the Appcelerator Titanium Studio software and tools.
14.8 “Runtime” shall mean the Appcelerator proprietary compiler code inserted into the Application through use of Studio needed to run the Application.