Last Updated June 10, 2014
This Product contains computer programs and other proprietary material and information, the use of which is subject to and expressly conditioned upon acceptance of this Enterprise Ordering Agreement (“Agreement”).
This Agreement is a legally binding document between the organization that will make end-use of the Product (the “Customer”) and Appcelerator, Inc., with its principal place of business at 1732 N. First Street, Suite 150, San Jose, CA 95112, USA (“Appcelerator”). Unless Appcelerator agrees otherwise in writing, this Agreement governs Customer’s use of the Product except to the extent all or any portion of the Product: (a) is the subject of a separate written agreement; or (b) is governed by a third party licensor’s terms and conditions. Capitalized terms have the definitions in Section 1 or as otherwise indicated below.
By clicking on the “Agree” or “Accept” or similar button at the end of this Agreement, or proceeding with the installation, use or reproduction of this Product, or authorizing any other person to do so, you are representing to Appcelerator that you are authorized to bind the Customer, and that you are agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement. If the terms of this Agreement are considered an offer by Appcelerator, acceptance by Customer is expressly limited to the terms of this Agreement, to the exclusion of all other terms.
If you do not have authority to agree to the terms of this Agreement on behalf of the Customer, or do not accept the terms of this Agreement, (i) click on the “Cancel” or “Decline” or other similar button at the end of this Agreement and/or immediately cease any further attempt to install or use this Product for any purpose, (ii) remove any partial or full copies made from this Product; and (iii) return the Product, along with proof of purchase, to the company from whom you obtained the Product. In such event, no license shall be deemed to have been granted by Appcelerator.
This Agreement governs Customer’s procurement and use of all Products and Services ordered by Customer direct from Appcelerator, except as may be expressly provided for in a separate written agreement between Appcelerator and Customer, for example, for professional third party application development under a revenue sharing model. Customer understands and agrees that this Agreement allows Customer to use Products and Services only for purposes of developing Applications associated with Customer’s or its Affiliates’ brand and business and for distribution to Customer’s employees, suppliers or end user customers for purposes of interacting with Customer’s own systems, products and services (“Enterprise Apps”). If Customer is or wishes to be in the business of developing Applications for other enterprises or unaffiliated third parties, Customer may approach Appcelerator with a proposal to enter into a separate written agreement that would provide for such additional license rights, which Appcelerator may offer, at its sole discretion, subject to different license fee models, including, without limitation, revenue share arrangements.
1.1 “Affiliates” shall mean, with respect to a party, an entity controlled by, controlling, or under common control with such party, where control is the direct or indirect ownership of fifty percent (50%) or more of the voting securities of the entity, or where there are no voting securities, the ability to direct or control the management or operations of the entity.
1.2 “API Calls” shall mean network request made by the Application to Appcelerator’s servers to store data, retrieve data, and/or trigger communication events.
1.3 “App Users” means the users of the Application(s).
1.4 “Application(s)” shall mean the software application(s) that Customer will develop using the Products.
1.5 “Communication Events” shall mean a push notification sent to an App User’s mobile device, or an email sent to an App User’s email account. A single API call made by the Application may trigger multiple communication events.
1.6 “Device” means a single unique registered mobile device via Appcelerator Test (e.g. smart phone, iPad, simulator, etc.). Multiple Devices can be licensed and each Device shall be uniquely registered and counted as an individual license. The number of Devices licensed shall be set forth on the applicable Order Form. Once a Device for Appcelerator Test is allocated, it may not be reallocated for twelve (12) months.
1.7 “Documentation” shall mean the published end-user guides and manuals customarily provided by Appcelerator to developers for use with the Products.
1.8 “Error” shall mean a failure of the Product to conform in all material respects with the applicable Documentation.
1.9 “Maintenance Fix” shall mean a later version of the Product, designated by Appcelerator by means of a change in the digit to the right of the Version number (e.g. x.x.1, x.x.2).
1.10 “Named Contact” shall mean a trained employee of Customer set forth in an applicable Order Form who is entitled to contact Appcelerator for Support Services. If an individual ceases to be an employee of Customer, Customer may designate another Named Contact by providing Appcelerator prior written notice.
1.11 “Named User” shall mean the unique individual who is authorized to access and use the Products on behalf of Customer (Customer’s employees, independent contractors, etc.). Named Users may not share access with any other users. If an individual ceases to be an employee of Customer, Customer may transfer the license to another Named User. The number of Named Users licensed to use the Product shall be set forth on the applicable Order Form.
1.12 “Open Source Software” shall mean various third party open source software components licensed under the terms of applicable third party open source license agreements contained in the Product. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.
1.13 “Order Form” shall mean an Appcelerator order form, executed by Customer, pursuant to which Customer orders Subscriptions for the Products and Support Services from Appcelerator.
1.14 “Product(s)” shall mean the licensed Appcelerator software platform and tools set forth in an applicable Order Form and any Upgrades thereto provided as part of Support Services.
1.15 “Release” shall mean a version of the Product that Appcelerator identifies with a change in the first digit of the Product version (e.g. 2.x, 3.x, 4.x).
1.16 “Runtime Products” shall mean the runtime portion of the Products.
1.17 “Services” means services provide by Appcelerator or its designee to Customer and may consist of (i) services for the support and maintenance of standard Products as described in Exhibit A (“Support Services”); or (ii) consulting and training services provided by Appcelerator pursuant to a separate Statement of Work that are not Support Services (“Professional Services”).
1.18 “Statement of Work” shall mean the detailed, written description of the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information.
1.19 “Subscription Term” means the period in which Customer has paid the applicable annual fees for Subscriptions.
1.20 “Subscriptions” shall mean licenses and Support Services for the Products provided by Appcelerator on a term basis.
1.21 “Upgrade” shall mean a Release, Version or Maintenance Fix to the Products that Appcelerator makes generally available to licensees of the Products as part of Support Services.
1.22 “Version” shall mean generally commercially released code corrections, patches, and minor version releases of the same Product as designated by a change in the number to the right of the decimal in the version number (e.g. x.4, x.5, x.6).
2. LICENSE GRANT AND SUPPORT.
2.1 General License Grant. Appcelerator grants to Customer a nonexclusive and nontransferable (except as otherwise permitted herein) license during the Subscription Term (with no right to sublicense) to use (i) the Product for Customer’s internal business purposes; (ii) the Documentation related to Product for the purpose of supporting Customer’s use of the Product; and (iii) notwithstanding the foregoing, Customer is granted a perpetual license to use the Runtime Products incorporated into the Application(s) created during the Subscription Term. Licenses granted to Customer shall commence on the date Customer is notified of electronic availability of the Product, as applicable.
2.2 Licensing Models. The Product is licensed for use only in accordance with the commercial terms and restrictions of the Product’s relevant licensing model, which are stated in the Appcelerator Order Form. For example, the licensing model may provide that the CONFIDENTIAL Product is licensed for use solely (i) by a certain number of Named Users; (ii) to produce a certain number of Applications; (iii) and/or for ACS (as defined below), a mobile backend service, with a defined number of API Calls, Communication Events, storage and emails; (iv) and/or in connection with certain number of Devices for Appcelerator Test; (v) and/or includes Appcelerator Performance Management.
2.3 License Restrictions. Customer is granted no rights in the Products other than those limited rights expressly set forth in Section 2.1 and 2.2 and any reproduction, use or commercialization outside the scope of the limited licenses will be un-licensed infringement and shall cause all licenses to expire. Appcelerator expressly reserves to itself title, ownership and all rights not granted to Customer. The Products and the Documentation are licensed, not sold. Customer acknowledges that the Product constitutes a valuable trade secret of Appcelerator. 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 the Product (and if Customer violates this restriction, Customer shall transfer, and hereby does transfer, all intellectual property rights and other rights to resulting modifications or works to Appcelerator, in addition, not in lieu of other rights and remedies Appcelerator may have as a result of the violation); (b) use (or cause or permit to be used) the Product for rental, lease, service bureau or application service provider, as part of an application service provider or software as a service offering, or to provide services to third parties (and, if Customer violates this restriction, then Customer shall transfer to Appcelerator all revenue generated from the unlicensed activities, in addition, not in lieu of other rights and remedies Appcelerator may have as a result of the violation); (c) distribute, sublicense, repackage, lease, rent, sell, loan or otherwise transfer the Product or Application(s) to any third party or title, ownership or reproduction rights (beyond licensing an Application to an App User via an App Store) to any third party except Affiliates; (d) reverse engineer, decompile, or disassemble the Product, 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) except for the back-up purposes the Product may not be copied or otherwise reproduced; (f) remove, alter or obscure in any way any copyright or other proprietary rights on or within the Product and or the Documentation; (g) build a product or service competitive to Appcelerator’s Products and/or Services utilizing trade secrets, Products, Services or other items made available by Appcelerator hereunder; (h) use any Appcelerator product licensed under a separate agreement to support any Application developed with Products licensed under this Agreement; or (i) copy any features, functions or graphics of the Products, except as necessary to use the Product.
2.4 Open Source Software. The Open Source Software is licensed under the terms of the applicable third party open source license conditions and/or copyright notices that can be found in the licenses directory, the Documentation or other materials accompanying the Products. Copyrights to the Open Source Software are held by copyright holders indicated in the copyright notices in the licenses directory or other materials accompanying the Products. The Open Source Software terms may be found at http://www.appcelerator.com/opensource
2.5 Support Services. During the time that Customer is current in the payment of the applicable Subscription fees, Appcelerator shall provide Customer with Support Services for the Products to Customer in accordance with Exhibit A. Customer agrees to provide Appcelerator with such cooperation, materials, information, access and support which Appcelerator deems to be reasonably required to allow Appcelerator to successfully provide the Support Services.
3. PROFESSIONAL SERVICES.
Appcelerator will provide Customer with the Professional Services specified in an applicable Order Form or Statement of Work (“Statement of Work”) entered into between the parties pursuant to the terms herein. Customer agrees to provide Appcelerator with such cooperation, materials, information, access and support that Appcelerator deems to be reasonably required to allow Appcelerator to successfully provide the Professional Services. Customer acknowledges and agrees that such cooperation and provision of access and information are essential to Appcelerator’s ability to perform the Professional Services. Customer acknowledges that in order for Appcelerator to provide the Professional Services, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by Appcelerator (“Third Party Products”). Such Third Party Products will be set forth in the applicable Statement of Work. Appcelerator may provide Customer with links and instructions for obtaining Third Party Products, but it is Customer’s responsibility to properly license and install any required Third Party Products from the relevant third party providers. Appcelerator will have no liability with respect to any Third Party Products.
4. TITLE AND PROPRIETARY RIGHTS.
4.1 Title. Title to the Products shall not pass from Appcelerator to Customer or any App User, and the Products and all master copies thereof shall at all times remain the sole and exclusive property of Appcelerator. Unless Appcelerator agrees otherwise in a duly signed writing, Appcelerator shall own all right, title and interest in and to any modifications and derivations of the Products made by or on behalf of Customer, whether authorized in writing by Appcelerator or otherwise, and Customer will promptly deliver any such modifications and derivations to Appcelerator. Customer hereby irrevocably transfers, conveys and assigns to Appcelerator all right, title, and interest in and to modifications and derivations of the Products. Customer shall own all right, title and interest in and to the Application(s), subject to Appcelerator owning all right, title and interest in and to the Products and any information and other items that Appcelerator makes available to Customer. Appcelerator shall have, and Customer hereby grants to Appcelerator a non-exclusive, royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into its Services or Products any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
4.2 Proprietary Rights in Professional Services.
(a) Ownership. Unless otherwise agreed to in a Statement of Work, Customer shall own all copyright rights in written reports, customized scripts, analyses and other working papers delivered by Appcelerator to Customer in the course of performing Professional Services, as well as Customer’s derivative works thereof, subject to Customer’s payment in full under such Statement of Work and subject to Appcelerator’s rights in the underlying intellectual property embodied therein or used by Appcelerator to perform the Professional Services.
(b) License Grant. Subject to the terms and conditions of this Agreement, Appcelerator grants Customer the worldwide, non-exclusive, non-transferable, non-sublicenseable, perpetual, irrevocable (except for uncured material breach) right to use, copy, and create derivatives of any materials provided by Appcelerator in the course of performing Professional Services solely for Customer’s internal business operations as contemplated by the applicable Statement of Work. The foregoing license excludes Appcelerator’s generally available products which are licensed via separate ordering agreement or pre-released products Customer may have received from Appcelerator under a separate testing agreement.
(c) Reservation of Rights. Appcelerator reserves all rights not expressly granted to Customer in this Agreement. Except as expressly stated, nothing herein shall be construed to (1) directly or indirectly grant to a receiving party any title to or ownership of a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder, or (2) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder. Notwithstanding anything to the contrary herein, Customer acknowledges that Appcelerator has the right to use any Customer provided materials solely for the benefit of Customer in connection with the Services performed hereunder for Customer.
5.1 Payment Terms. Customer shall pay to Appcelerator all fees under this Agreement as set forth in an applicable Order Form and/or Statement of Work. Unless otherwise agreed to in the applicable Order Form, all fees will be paid by Customer to Appcelerator within thirty (30) days from the date on the Order Form date in the currency stated therein. Customer shall reimburse Appcelerator for all mutually agreed expenses incurred by Appcelerator personnel in providing the Services. Customer shall bear all costs and expenses of building, marketing and distributing the Application(s). Payments will be made without right of set-off or chargeback. All payments not made when due shall accrue interest at the higher of: (i) the rate of one percent (1%) per month or (ii) the highest rate permitted by law. If payment of any fee is overdue, Appcelerator may also suspend provision of the license or Support Services until such delinquency is corrected. Customer shall pay any taxes, duties or charges of any kind (including any sales, withholding or value added taxes) imposed by any federal, state or local governmental entity for products or services provided under this Agreement excluding only taxes based solely on Appcelerator’s net income. If any applicable law requires Customer to withhold amounts from any payments to Appcelerator under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Appcelerator with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Appcelerator receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Appcelerator would have received and retained absent the required deduction or withholding.
5.2 Delivery of the Products. Promptly upon execution of this applicable Order Form, Appcelerator shall deliver the Products and Documentation to Customer via electronic download, ex works Appcelerator’s premises. All Products delivered shall be deemed accepted by Customer upon electronic availability.
5.3 At Appcelerator’s request, but in no event more than once per quarter, and upon reasonable prior written notice, Appcelerator may audit Customer’s Product usage and records to ensure that Customer is using the Products and/or Support Services in compliance with this Agreement. Any such audit will be conducted during regular business hours at Customer’s offices and will not interfere unreasonably with Customer’s business activities. If an audit reveals that Customer has underpaid Customer’s total fees by more than five percent (5%), then Customer will pay Appcelerator’s reasonable costs of conducting the audit, in addition to the underpaid amount. The Product may also connect to the Internet at any time to confirm compliance with this Agreement.
6. TERM AND TERMINATION.
6.1 Product Subscription Term. Subscriptions shall commence on the date of electronic availability of the Product and continue for the period specified on the Order Form. Renewals of Subscriptions shall commence and expire in accordance with the dates on the applicable Order Form.
6.2 Termination for Convenience.
(a) By Appcelerator. Appcelerator may terminate this Agreement or any Subscription for its convenience with sixty (60) days prior notice and Customer’s sole and exclusive remedy and Appcelerator’s sole and exclusive obligation shall be to refund to Customer the portion of any pre-paid Subscription fee that corresponds to the period between the effective date of the termination for convenience and the end of the then current Subscription period. Statement(s) of Work shall be terminated in accordance with the termination provisions set forth in the applicable Statement of Work.
(b) By Customer. If Customer terminates a Subscription for its convenience, Customer shall not be entitled to a refund on any prepaid Subscription Fees. Statement(s) of Work shall be terminated in accordance with the termination provisions set forth in the applicable Statement of Work.
6.3 Termination for Breach. Either party may terminate the Subscription for a Product or Statement of Work for cause due to a failure of the other party to comply with the terms of this Agreement with regard to such Product or Statement of Work, provided that the terminating party has given thirty (30) days’ written notice specifying the failure and the other party has not remedied the failure within such time. If Appcelerator terminates the Subscription for any Product(s) due to Customer’s failure to remedy the breach, such termination shall be without further liability for Appcelerator and without any obligation to refund any fees already paid therefore. If Customer terminates for Appcelerator’s unremedied breach, Customer’s sole and exclusive remedy and Appcelerator’s sole and exclusive obligation shall be to grant a refund for that portion of any pre-paid Subscription fee that corresponds to the period between the effective date of the termination for breach and the end of the then current Subscription period.
6.4 Either party may terminate this Agreement, effective immediately upon written notice, under the following circumstances:
(a) 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.
(b) If either party should: (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
6.5 Effect of Termination. Any provision that by its nature or context is intended to survive any termination or expiration, including but not limited to provisions relating to payment of outstanding fees, confidentiality and liability, shall so survive. Upon termination or expiration of the Subscription, the licenses granted hereunder shall terminate (except those set forth in Section 2.1(iii)) and Customer shall have no further rights to receive Support Services. Customer shall immediately discontinue use of the Products and shall certify destruction of all copies of the Product thereof in its possession to Appcelerator. Upon any termination of this Agreement for cause by Appcelerator, Customer shall pay any unpaid fees that became due prior to the effective date of termination. All proprietary and confidential information shall be promptly returned to Appcelerator. Termination of this Agreement shall not relieve Customer of any of its payment obligations.
6.6 Survival of Certain Conditions. Notwithstanding anything to the contrary contained in this Agreement, Section(s) 1 (“Definitions”), 2.3 (“License Restrictions”), 4 (“Title, and Proprietary Rights”), 5 (“Fees”), 6.5(“Effect of Termination”), 6.6 (“Survival of Certain Conditions”), 8.4 (“Warranty Disclaimer”), 9.2 (“Customer Indemnity”), 10 (“Confidential Information”), 11 (“Limitation of Liability; Allocation of Risk”), and 12 (“Miscellaneous Provisions”) and shall in all cases survive any expiration or termination of this Agreement.
Appcelerator agrees to make available to Customer during the time that Customer has paid the applicable Subscription fees any Upgrades at the same time that the relevant Upgrade is generally released to other customers who license the Products. Appcelerator will notify Customer from time to time as Upgrades become available. All Upgrades will be licensed pursuant to the terms of this Agreement applicable to the Products. The Product may make Internet connections to remote servers to check for software Upgrades.
8. LIMITED WARRANTY.
8.1 Products. Appcelerator warrants to Customer only, that for a period of thirty (30) days following the date the Products are electronically available for download, the Products will substantially conform to the description contained in the applicable Documentation (“Warranty Period”). If during the Warranty Period the Products do not substantially conform to the description contained in the applicable Documentation, Customer’s sole and exclusive remedy and Appcelerator’s sole and exclusive liability for such breach of warranty shall be for Appcelerator, at it option to, correct the defects in the Products or, if Appcelerator is unable to correct the defect, Appcelerator will accept the return of the defective Product in Customer’s possession and Appcelerator will refund the license fees paid by Customer for such defective Product.
8.2 Professional Services. Appcelerator warrants that for a period of ten (10) calendar days following the performance of such Professional Services, the Professional Services to be performed hereunder will be done in a workmanlike manner and shall conform to standards of the industry. If the Professional Services are not performed as set forth above, Appcelerator’s entire liability, and Customer’s sole remedy, for Appcelerator’s failure to so perform shall be for Appcelerator to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate the applicable Statement of Work and refund that portion of any fees received that correspond to such failure to perform.
8.3 The remedies in Section 8.1 and 8.2 are Customer’s sole and exclusive remedies for breach of warranty and Appcelerator’s sole and exclusive liability for breach of warranty. The warranties in Sections 8.1 and 8.2 are made to and for the benefit of Customer only. Appcelerator shall have no liability hereunder after expiration of the applicable warranty period. The warranties will apply only if:
(a) the Products and Application(s) have been properly installed and used at all times and in accordance with the instructions in the applicable Documentation;
(b) no modification, alteration or addition has been made to the Products or Application(s) or Services; and
(c) Appcelerator receives written notification of the breach during the applicable warranty period.
8.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION, THE PRODUCTS, THE DOCUMENTATION, SERVICES, AND APPLICATIONS, 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 THE PRODUCTS, DOCUMENTATION, SERVICES, APPLICATION(S), OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE. APPCELERATOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY PRODUCTS, DOCUMENTATION, SERVICES, OR APPLICATIONS WILL MEET THE REQUIREMENTS OF CUSTOMER OR APP USER OR THAT THE OPERATION OF ANY SUCH PRODUCTS OR APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCTS AND APPLICATION(S). 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.
9.1 Appcelerator Indemnity.
(a) Subject to the remainder of this Section, Appcelerator shall defend Customer against any third party claims brought against Customer alleging that Customer’s exercise of its rights under this Agreement with respect to Products licensed under this Agreement, or any portion thereof constitutes: (i) willful infringement of such third party’s United States patent issued prior to the Effective Date or (ii) an infringement of such third party’s United States copyright (collectively “Third Party Claims”). Appcelerator shall also indemnify Customer from the resulting costs and damages finally awarded against Customer to the third party making such Third Party Claim by a court of competent jurisdiction or a settlement agreed to in writing by Appcelerator (“Damages”).
(b) Appcelerator shall not be obligated to defend or be liable for costs and/or damages under this Section 9 if the alleged infringement arises out of or is in any manner attributable to: i) any combination with non-Appcelerator products; ii) use for a purpose or manner for which the Product was not designed; iii) use of an older version of the Product when use of a new Appcelerator revision made available to Customer would have avoided the infringement; iv) any modification of Products by Customer; (v) any modifications made by Appcelerator pursuant to Customer’s specific instructions; (vi) any technology owned or licensed by Customer from third parties or (vii) any Applications.
(c) If any Third Party Claim which Appcelerator is obligated to defend has occurred, or in Appcelerator’s opinion is likely to occur, Appcelerator shall have the right to, at Appcelerator’s option and expense, either procure for Customer the right to continue using the subject Products or Documentation or replace or modify such Products or Documentation with a functionally equivalent replacement or modification so that it becomes non-infringing. If Appcelerator cannot reasonably provide Customer with a replacement or modification which is functionally equivalent to the subject Products or Documentation, the applicable license shall be terminated and Appcelerator shall refund to Customer the prepaid but unused Subscription fees paid for the terminated Products.
(d) THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND APPCELERATOR’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO THIRD PARTY INFRINGEMENT CLAIMS.
9.2 Customer Indemnity. 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 modifications or enhancements to a Product made by or on behalf of Customer; (b) any Application or Customer provided materials, or (c) Customer’s breach of Section(s) 12.6 or 12.14, 13 or 14 of this Agreement, including but not limited to the failure of Customer to comply with all applicable laws and regulations regarding the collection and use of personal data and personally identifiable information or failure to provide any notices or terms of services as may be required by any laws, statutes and regulations.
9.3 Obligations of the Indemnified Party. Each party’s indemnification obligation is contingent upon the indemnified party (a) giving prompt written notice to the indemnitor of any such claim, (b) allowing the indemnitor to control the defense and related settlement negotiations provided however that indemnitor will obtain indemnitee’s prior consent, which shall not be unreasonably withheld or delayed, of any settlement of such a claim that requires indemnitee to take or refrain from taking any particular action, and (c) fully assisting in the defense at the indemnitor’s request, so long as the indemnitor agrees to pay the indemnified party’s reasonable expenses in connection therewith. Indemnitee may participate in such defense and in any settlement discussions directly or through counsel of Indemnitee’s choice at indemnitee’s cost.
10. CONFIDENTIAL INFORMATION.
10.1 Appcelerator and Customer may disclose to each other certain Confidential Information (defined below). The party receiving the Confidential Information (the “Receiving Party”) agrees that the Confidential Information is the sole and exclusive property of the party disclosing the Confidential Information (the “Disclosing Party”) and that the Disclosing Party owns all world-wide rights therein under patent, copyright, trade secret, confidential information, or other proprietary rights. The disclosure of the Confidential Information to the Receiving Party does not confer upon the Receiving Party any license, interest or rights of any kind in or to the Confidential Information. The Receiving Party 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. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to its parent company, Affiliates, or major shareholders who are subject to a duty of confidentiality with respect to information received from such party that is no less restrictive than the provisions of this Section 10. The Receiving Party shall return to the Disclosing Party 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 the Disclosing Party.
10.2 Appcelerator’s and Customer’s obligations with regard to the Confidential Information shall remain in effect during the term of this Agreement and for a period of two (2) years thereafter. As used herein, “Confidential Information” means non-public information of the Disclosing Party that is disclosed to the Receiving Party pursuant to this Agreement in tangible form and labeled “confidential” or the like, or if disclosed orally, are identified as being confidential at the time of disclosure and are followed up within two (2) weeks in a tangible form that is appropriately labeled. The Products and Documentation shall be deemed the Confidential Information of Appcelerator, irrespective of whether they are marked or identified as confidential information. Notwithstanding the foregoing, Confidential Information shall not include any information: (a) is already known to the Receiving Party at the time of disclosure, which knowledge the Receiving Party shall have the burden of proving; (b) is, or, through no act or failure to act of the Receiving Party, becomes publicly known; (c) is received by the Receiving Party from a third party without restriction on disclosure; (d) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or (e) is approved for release by written authorization of the Disclosing Party. In addition, a disclosure of Confidential Information (i) in response to a valid order by a court or other governmental body, or (ii) otherwise required by law, shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the party disclosing such information shall provide prompt written notice thereof to the other party to enable it to seek a protective order or otherwise prevent such disclosure.
10.3 Nothing in this Agreement will, or is intended to, limit Appcelerator’s ability to develop or enhance its products and services in any manner whatsoever, including use of residual knowledge, provided Appcelerator does not disclose or otherwise use or make available any of Customer’s Confidential Information.
11. LIMITATION OF LIABILITY; ALLOCATION OF RISK.
11.1 Limitation of Liability. APPCELERATOR’S AND ITS SUPPLIER’S TOTAL AGGREGATE LIABILITY 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 THE FEES PAID BY CUSTOMER TO APPCELERATOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
11.2 Exclusion of Damages. TO THE FULL EXTENT ALLOWED BY LAW, APPCELERATOR (AND ITS SUPPLIERS) 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 warranties and warranty disclaimer 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. MISCELLANEOUS PROVISIONS.
12.1 Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to the Products, Support Services and Documentation, supersedes any prior or contemporaneous written or oral agreement or understandings between the parties with respect to the Products, and cannot be changed or terminated orally. This Agreement may be amended only in writing signed by the authorized representatives of the parties hereto. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Products to be provided under this Agreement, and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
12.2 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.
12.3 Assignment. Customer may not assign or otherwise 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 the permitted successors and permitted assigns.
12.4 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.
12.5 Marketing. Customer agrees that Appcelerator may use Customer’s pre-approved name and logos for marketing and promotional materials. Customer grants Appcelerator the right to link to Customer’s website. Customer will use reasonable efforts to arrange for appropriate personnel to be available to serve as references for the Products and Appcelerator in the event of an inquiry from any member of the press, any industry analysts or any potential customer. Customer will work with Appcelerator to prepare a case study/reference testimonial about the Products.
12.6 Compliance with Laws. Customer shall develop and use the Application(s) 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 Products. 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 Product in violation of any U.S. export embargo, prohibition or restriction.
12.7 Government Licensee. The Products 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, the Products and related Documentation are provided to all U.S. Government end-users with only those rights set forth in this Agreement.
12.8 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.
12.9 Force Majeure. Except for the obligation to pay fees which shall be made as soon as reasonably practicable in light of the force majeure event, 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.
12.10 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 mailed first class mail, postage prepaid or sent by express overnight courier service to Appcelerator at the address set forth above, to the attention of the Chief Financial Officer and to Customer at Customer’s corporate headquarters address or to such other address as any such party may have designated by like notice forwarded to the other party hereto.
12.11 Data Analytics from App Users. Customer may disable the data analytics portions of the Product that collects anonymised data with regard to the Applications; however such disablement will cause Customer not to have access to the data analytics features of the Products. Should Customer elect to use the data analytics portions of the Products, Appcelerator may collect certain information from App Users, including, but not limited to, platform, timestamp, device identifier, model, manufacturer, operating system, Titanium SDK version and geolocation data. Provided that Customer has paid the applicable data analytics fee, Appcelerator will organize and make this information available to Customer on a regular basis. In addition, Appcelerator shall have the right to use such information and to compile and distribute statistical analyses and reports utilizing aggregated data derived from this information. Customer may not create custom fields to collect and send personally identifiable information about its App Users to Appcelerator.
12.15 Exhibits. The following Exhibit forms part of this Agreement: Exhibit A – Support Services.
13. USE OF THE APPCELERATOR CLOUD SERVICES (“ACS”). ACS is designed to provide Customer with optional backend technology for cloud services enablement for Customer’s Application. If Customer elects to deploy ACS in its Application(s) the ACS terms posted at http://www.appcelerator.com/legal/acs-agreement/ 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.
14. USE OF THE APPCELERATOR PERFORMANCE MANAGEMENT SERVICES (“APMS”).
14.1 Use. The APMS specified in the Order Form entered into between Appcelerator and Customer shall be used solely by Customer for bug fixing, performance monitoring/management and other analytics with respect to the Applications and shall be limited to the subscription term and the number of users specified in the Order Form. The Application(s) will include integration code (the “APMS Integration Code”) in order to transmit data from the Application(s) to the APMS. The types of data transmitted and the frequency of transmission is determined solely by Customer through Customer’s configuration of the APMS Integration Code. Customer may reproduce and distribute the APMS Integration Code solely when embedded within the Application(s) and used solely for the purpose of transmitting data from the Application(s) to the APMS.
14.2 Data. Appcelerator (or a third party vendor on Appcelerator’s behalf) collects, receives, and generates data in connection with Customer’s use of the APMS (“Customer Data”) and in connection with App User’s use of the Application(s) (“App User Data”). Customer grants Appcelerator (and its third party vendors subject to confidentiality obligations) the right to use, reproduce and distribute the Customer Data and App User Data in connection with Customer’s use of the APMS. Customer further grants Appcelerator (and/or a third party vendor on Appcelerator’s behalf) the worldwide, perpetual, irrevocable right to use, reproduce and distribute Customer Data and App User Data when it is aggregated with other information or otherwise is not specifically identifiable to Customer or any App User. Customer also consents to Appcelerator’s (and/or a third party vendor on Appcelerator’s behalf) disclosure of Customer Data and App User Data as may be required by law or legal process. Customer agrees not to transfer to Appcelerator (and/or to any third party vendor acting on Appcelerator’s behalf) any App User Data that is personally identifiable information, financial information, health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information (for example, Social Security Numbers), or that is used to target advertising to individual devices or App Users. Customer shall be solely responsible for ensuring that the Application(s) and Customer’s use of the APMS (including without limitation Customer’s provision of App User Data to Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf)) comply with all applicable laws, rules, and regulations. Customer shall obtain and maintain all rights required to permit the transfer of App User Data to to Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) and to allow to Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) to use the App User Data pursuant to this Agreement.
14.3 Confidentiality. The APMS shall be considered Confidential Information of Appcelerator (and/or the third party vendor acting on Appcelerator’s behalf) and the Customer Data and App User Data shall be considered Confidential Information of Customer, and, subject to the terms of this Section 14, each party agrees to maintain the confidentiality of such information for the benefit of the other party in accordance with the terms of the Agreement. CONFIDENTIAL
EXHIBIT A SUPPORT SERVICES
Support Services consist of three (3) major functions: Problem Troubleshooting, Upgrades and Error Corrections. Customer will designate personnel who are trained and knowledgeable about the Products who are responsible for contacting Appcelerator for problem reporting and receiving Upgrades. The quantity and name of the Customer’s Named Contacts will be indicated on each Order Form. To be eligible for Support Services, the hardware and software on which the Products are installed must meet Appcelerator’s minimum configuration requirements provided in the Documentation.
Appcelerator will provide Support Services for Products made generally available and licensed under this Agreement only and during the Subscription Term for the applicable Product. Appcelerator will provide Support Services for the last Version of the previous Release for 1 year after the release of the current Release.
Each Order Form will indicate the Support Services Subscription that the Customer has purchased for the Products licensed by Customer.
Appcelerator provides Support Services in English via the Appcelerator support website (“Support Portal”). Customer is responsible for initiating all problem reports via the web-based Support Portal and Appcelerator support personnel will coordinate responses and follow-up actions with Customer. Except during website maintenance timeframes, Customer can submit Errors (24) hours per day, seven (7) days per week. An automated confirmation and timestamp of the problem report will be immediately sent to Customer via email to the Named Contact recording the report.
The primary function of support is to provide guidance and resolution for problems relating to Products. Appcelerator will use commercially reasonable efforts in finding resolutions and workarounds for confirmed Errors, but does not guarantee an Error correction.
Appcelerator will attempt to provide updates every business day subsequent to initial response for Severity One (as defined below) problem reports. If the initial response from Appcelerator requires additional information from the Customer, subsequent updates will not be provided until the additional information is provided from Customer.
Support Services Subscriptions and Options
While Customer can submit a Problem Report at any time, Appcelerator personnel will only work on Reported Issues during the Business Hours of the Business Day as defined by the Customers Support Subscription indicated on the Order Form.
|Enterprise Support Package|
|Total # of incidences / mo|
|# of Named Contact(s)|
Below is a listing of the standard severity definitions that Appcelerator uses to classify Errors:
Severity One (Critical)
A severity one (1) Error is a catastrophic problem that severely impacts the Customer’s development progress or an Application, renders major functionality inoperable and no procedural or code work around exists.
Severity Two (Major)
A severity two (2) Error is a major problem that impacts Customer’s development progress or an Application and is one of the following:
1) Renders minor functionality inoperable and no procedural or code work around exists;
2) Renders major functionality inoperable and a workaround exists
Severity Three (Minor)
A severity three (3) Error is a medium-to-low impact problem which involves partial non-critical functionality loss. This may be a minor Error with limited loss or no loss of functionality or impact to the Customer’s operation and issues in which there is an easy circumvention or avoidance by the Customer. This includes Documentation errors.
No Support Services will be provided for (i) Products that are modified by Customer personnel or by third parties (i.e. third-party distributions, open source builds, Customer-modified builds, etc); (ii) problems caused by accident, neglect, misuse or improper programming by Customer personnel; (iii) improper or undocumented use of the Products; or (iv) failure of Customer to fulfill its obligations under its written agreements with Appcelerator.
Support Services do not include or cover support that becomes necessary due to: