THIS DISTRIBUTOR AGREEMENT ("AGREEMENT"), ENTERED INTO BETWEEN APPCELERATOR, INC. AND THE PERSON OR ENTITY AGREEING TO THE TERMS OF THIS AGREEMENT ("PARTNER"). 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 PARTNER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT ACCEPT THE TERMS IN THIS AGREEMENT. THE EFFECTIVE DATE IS THE DATE THAT THE TERMS OF THIS AGREEMENT ARE ACCEPTED BY PARTNER. THIS AGREEMENT CONTEMPLATES A REVENUE SHARE OF PARTNER’S PARTNER TOOLS SOLD VIA THE APPCELERATOR MARKETPLACE. IF PARTNER HAS A FREEMIUM BUSINESS MODEL FOR THEIR PARTNER TOOLS SUCH THAT THE PARTNER TOOLS ARE PROVIDED FREE OF CHARGE, BUT A PREMIUM IS CHARGED AND COLLECTED DIRECTLY BY PARTNER FOR ADVANCED FEATURES OR FUNCTIONALITY, THEN PARTNER SHALL PROVIDE APPCELERATOR WITH A PROPOSAL TO ENTER INTO A SEPARATE WRITTEN AGREEMENT THAT WOULD PROVIDE DIFFERENT LICENSE FEE MODELS, INCLUDING, WITHOUT LIMITATION, REVENUE SHARE ARRANGEMENTS.
1.1 Distributor Appointment.
Subject to the terms and conditions of this Agreement, Partner hereby appoints Appcelerator as an authorized distributor to license the Partner Tools as part of the Appcelerator Marketplace.
1.2 Partner Tools License.
Subject to the terms and conditions of this Agreement, Partner hereby grants to Appcelerator a worldwide, non-exclusive, royalty-free license during the Term to: (a) use, host, reproduce, distribute, transmit and publicly display the Partner Tools via the Appcelerator Marketplace, (b) allow Users to use and reproduce the Partner Tools purchased via the Appcelerator Marketplace, and (c) if applicable, access the Partner Service via the API solely for the purpose of providing the Partner Tools to Users via the Appcelerator Marketplace.
If Partner requires a User to agree to an End User License Agreement (EULA) or Terms of Service (TOS), partner will include the EULA or TOS with the Partner Tools and will also provide a copy of such agreements to Appcelerator. Partner may change the EULA or TOS by providing Appcelerator with at least thirty (30) days prior written notice. Each party will immediately notify the other party if it becomes aware of any breach of any such agreement.
1.4 Branding; Trademark License.
The Partner Tools on the Appcelerator Marketplace shall bear Partner branding as generally displayed for other partners on the Appcelerator Marketplace. During the Term, Partner hereby grants to Appcelerator a limited, non-exclusive, royalty-free license to use the Partner Marks in order to (i) display the Partner Tools on the Appcelerator Marketplace; and (ii) promote the Partner Tools in connection with the Appcelerator Marketplace.
2. Distribution of Partner Tools.
2.1 Appcelerator APIs and Service.
Appcelerator shall host and maintain the Appcelerator Marketplace.
2.2 Partner APIs and Tools.
If Partner is hosting the Partner Tools via the Partner Service, Partner shall provide the Partner APIs and host and maintain the Partner Tools and Partner Service.
2.3 Partner will be responsible for performing all User Support for the Partner Tools. Partner will provide Support promptly, in a manner consistent with good industry practice, and during at least the same hours and at the same or better service levels as Partner provides support for its other customers.
2.4 The parties may engage in joint marketing activities to promote the Partner Tools offering on the Appcelerator Marketplace. Except as mutually agreed in writing, each party will pay its own costs and expenses for its marketing activities.
3.1 Appcelerator acknowledges and agrees that, as between Partner and Appcelerator, Partner owns all right, title, and interest in and to the Partner Tools, Partner Service, Partner Marks, the Partner API, and the Intellectual Property Rights therein, and nothing in this Agreement will confer on Appcelerator any right of ownership or interest in the Partner Tools, Partner Service or Partner Marks.
3.2 Partner acknowledges and agrees that, as between Partner and Appcelerator, Appcelerator owns all right, title, and interest in and to the Appcelerator Marketplace (excluding the Partner Tools, Partner Service, and Partner Marks), the Appcelerator API, Appcelerator Marks, and the Intellectual Property Rights therein, and nothing in this Agreement will confer on the Partner any right of ownership or interest in the Appcelerator Marketplace, API, or Appcelerator Marks. 3.3 Each party acknowledges that it obtains no intellectual property rights or licenses by this Agreement except for those licenses expressly granted.
4.1 Appcelerator shall pay Partner seventy percent (70%) of the Net Subscription Revenue received by Appcelerator for the Partner Tools sold in the Appcelerator Marketplace (the "Revenue Share"). Appcelerator and Partner may negotiate a different Revenue Share for a specific transaction on a case by case basis upon mutual consent of both parties. Appcelerator may modify the percentage of the Net Subscription Revenue payable to Partner each year on the anniversary of the Effective Date by providing at least sixty (60) days prior written notice to Partner.
4.2 Appcelerator shall pay the Revenue Share due to Partner at the earlier of (a) within thirty (30) days after the end of the calendar month in which the Revenue Share equals at least fifty dollars (US $50); or (b) within thirty (30) days after the end of the calendar quarter. No later than the Revenue Share payment due date, Appcelerator shall make available to Partner a report itemizing the receipts and any permitted deductions comprising the Net Subscription Revenues.
5. Term of Agreement
5.1 Term. This Agreement is effective as of the Effective Date and shall continue for a period of one (1) year and shall automatically renew for additional one (1) year periods ("Term") unless either party gives written notice to the other of its intention not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current Term. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Appcelerator may immediately terminate this Agreement in its sole discretion if Partner has a freemium business model for its Partner Tool and has not entered into alternative distribution arrangement with Appcelerator.
5.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason:(a) Partner shall cease any and all use of the Appcelerator Marketplace; (b) each party will return to the other party or destroy the Confidential Information of the other party that it obtained during the course of this Agreement; and (d) upon written request, each party must certify in writing to the other party that it has returned or destroyed all of the other party’s Confidential Information.
5.3 Survival. Sections 2.5 (License Restrictions), 5 (Ownership), 5 (Term of Agreement), 6.2 (Warranty Disclaimer), 7 (Limitation of Remedies and Damages), 8 (Indemnification), 9 (Confidential Information), 10 (General), and 11 (Definitions) shall survive any termination or expiration of this Agreement.
6. Representations and Warranties.
6.1 Each party represents and warrants that (a) the execution, delivery, and performance by such party of this Agreement are within the powers of the party, have been duly authorized by all necessary parts of the party, and will not violate any law, statute, or other governmental regulation that is applicable to the party’s business, or any other agreement or instrument to which the party is a party; and (b) it has obtained or shall obtain and maintain during the term all rights, licenses, consents and authorizations necessary to perform its obligations as set forth in this Agreement. Partner further represents and warrants that the Partner Tools, Partner Service, and Partner Marks do not and will not violate any applicable laws, rules or regulations or infringe the rights, including without limitation Intellectual Property Rights, of any third party.
6.2 THE APPCELERATOR MARKETPLACE IS PROVIDED "AS IS". APPCELERATOR DOES NOT WARRANT THAT THE NETWORK OR APPCELERATOR MARKETPLACE FURNISHED OR PROVIDED TO PARTNER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THE APPCELERATOR MARKETPLACE IS DESIGNED TO MEET PARTNER’S BUSINESS REQUIREMENTS. NEITHER APPCELERATOR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR THAT ACCESS TO ITS NETWORK WILL BE UNINTERRUPTED.
7. Limitation of Remedies and Damages
7.1 APPCELERATOR SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 APPCELERATOR’S TOTAL AGGREGATE LIABILITY AND PARTNER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY APPCELERATOR’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF PAYMENTS MADE BY PARTNER UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
7.3 The provisions of this Section allocate risks under this Agreement between Partner and Appcelerator.
8. Indemnification Partner shall indemnify, defend and hold harmless Appcelerator and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees), as a result of any third-party claim, demand or action (collectively, a “Claim”) arising from any breach of any of the representations, warranties, or covenants made by Partner hereunder. Appcelerator shall promptly notify Partner in writing of any such Claim; provided that the failure to provide such notice shall not relieve Partner of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. Partner shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such Claim; provided, however, that (i) Partner shall keep Appcelerator informed of, and consult with Appcelerator in connection with the progress of such litigation or settlement and (ii) Partner shall not settle any such Claim in a manner that does not unconditionally release Appcelerator without Appcelerator’s written consent, not to be unreasonably withheld or delayed.
9. Confidential Information
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of Confidential Information of the Disclosing Party; or (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party. Any software, documentation or technical information provided by Appcelerator (or its agents) that has not been released to the Appcelerator community, performance information relating to the Appcelerator Marketplace, and the terms of this Agreement shall be deemed Confidential Information of Appcelerator without any marking or further designation. The Receiving Party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party is liable for all acts and omissions of its employees and consultants to the extent that such act or omission would be a breach of this Agreement if done by Receiving Party. The Receiving Party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. The Receiving Party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the Receiving Party provides prompt written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The Receiving Party shall protect Confidential Information in the manner provided herein for five (5) years after receipt thereof, unless such obligation ceases earlier pursuant to this Section. Notwithstanding anything to the contrary herein, neither party shall disclose the terms and conditions of this Agreement to any third party, without the prior written consent of the other party. Notwithstanding the foregoing each party may disclose the terms and conditions of this Agreement without the prior written consent of the other party: (a) as required by any court or other governmental body; (b) as otherwise required by law; (c) to legal counsel of the parties; (d) in confidence, to accountants, banks, and financing sources and their advisors; (e) in connection with the enforcement of this Agreement or rights under this Agreement; or (f) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction. Notwithstanding the foregoing, each party hereby grants to the other party a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free, fully-paid, right and license to use and exploit in any manner and for any purpose, all Feedback provided by a party hereunder.
10.1 Severability. Severability.
If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.2 Governing Law;
Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in Santa Clara, California, and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.
10.3 Notices and Reports.
Any notice or report hereunder shall be in writing to the party’s corporate headquarters, Attention: Chief Financial Officer and shall be deemed given upon delivery if sent by: (i) personal delivery; (ii) certified or registered U.S. mail (return receipt requested); or (iii) overnight commercial delivery service.
10.4 Amendments; Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Partner will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
10.5 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
10.6 Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.7 Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.
10.8 Partner Acknowledgement.
Partner agrees that Appcelerator may from time to time identify Partner (with Partner’s name, logo, or trademark) as an Appcelerator Partner in or on Appcelerator’s website, sales and marketing materials, or press releases. Appcelerator may not use Partner’s name, logo, or trademark for any other purpose without obtaining Partner’s prior written consent.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.
The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.
11.1. API means the application program interfaces to interface the Partner Tools with the Appcelerator Marketplace, if applicable.
11.2. Appcelerator Marketplace means the Appcelerator online ecommerce site.
11.3. Support means the provision of: the provision of helpdesk support for the Partner Tools, a diagnosis of problems, performance deficiencies, functionality or operation of the Partner Tools, support in connection with User’s development, implementation and maintenance activities involving Partner Tools, and (a resolution of problems or performance deficiencies of the Partner Tools.
11.4. Confidential Information means all code, inventions, know-how, business, technical and financial information provided by either party that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure.
11.5. Disclosing Party means the party disclosing Confidential Information.
11.6. EULA means the end user license agreement included by Partner with the Partner Tools.
11.7. Feedback means, without limitation any feedback regarding the Partner Tools or Appcelerator Marketplace, including but not limited to, any functionality issues, and errors, flaws, failures, or faults in the Partner Tools or Appcelerator Marketplace via an online or other method.
11.8. Intellectual Property Rights means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
11.9. Launch means the first offering of paid Subscriptions for the Partner Tools to Users (also referred to as general availability of the Partner Tools on the Appcelerator Marketplace).
11.10. List Price means the Partner’s listing pricing for the Partner Tools.
11.11. Marks mean mean all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, all other indicia of origin, all applications to register and registrations for the foregoing, and any renewals therefore, under which a Party offers its products or services.
11.12. Net Subscription Revenues means all revenues actually received by Appcelerator for the sale of Subscriptions attributable to the Partner Tools less (i) the actual costs incurred by Appcelerator in selling the Subscriptions, including but not limited to transaction costs related to credit card processing (ii) any rebates, credits, charge¬ backs, refunds or similar offsets actually issued by Appcelerator for the Subscriptions; and (iii) any taxes that Appcelerator is required to collect in connection with the sale of Subscriptions.
11.13. Partner Service means the Partner’s online hosting service for the Partner Tools, if applicable.
11.14. Partner Tools means the Partner software integrated with the Appcelerator Marketplace, and any accompanying user documentation.
11.15. Receiving Party means the party receiving Confidential Information.
11.16. Subscription means a User subscription to use the Partner Tools.
11.17. Terms of Service (TOS) means any terms of service included by Partner with the Partner Tools.
11.18. User means an individual or entity that accesses the Appcelerator Marketplace and licenses the Partner Tools.