Open Mobile Marketplace Terms of Service

Introduction

1.1 All use of the Appcelerator Open Mobile Marketplace ("Appcelerator Marketplace") is subject to the terms and condition herein (collectively, ("TOS").

1.2 You ("User") accept the TOS by either (1) clicking to agree or accept where these options are presented, or (2) actually using the Appcelerator Marketplace. If User is accepting on behalf of User employer or another entity, User represents and warrants that: (i) User has full legal authority to bind User employer or such entity to the TOS; (ii) User has read and understands the TOS; and (iii) User agrees, on behalf of the party that User represents, to the TOS. If User does not have the legal authority to bind, do not click the "I Accept" button or use the Appcelerator Marketplace.

1.3 User may use Appcelerator Marketplace to browse, download and purchase subscriptions, products, tools and services (collectively ("Products"). Some of these Products may be offered by Appcelerator while others may be made available by third parties. User agrees that Appcelerator is not responsible for any Product that originates from a source other than Appcelerator. User agrees that User is solely responsible for all fees associated with purchases User make on the Appcelerator Marketplace.

Appcelerator Marketplace

2.1 Appcelerator may permanently or temporarily stop providing all or a portion of the Appcelerator Marketplace to User or to users generally at Appcelerator’s sole discretion, without prior notice to User.

2.2 If Appcelerator disables access to User’s account, User may be prevented from accessing the Appcelerator Marketplace, User account information and Products that are stored with User account.

2.3 Appcelerator may make available to User various payment methods to facilitate the purchase of Products from the Appcelerator Marketplace. User agrees to abide by any relevant terms that govern the use of the particular payment processing method. Appcelerator reserves the right to add or remove payment methods at its sole discretion.

2.4 Appcelerator may discover Products on the Appcelerator Marketplace that violates the applicable Distribution Agreement or other legal agreements, laws, regulations or policies. User agrees that in such an instance Appcelerator retains the right to remove those Products, in its sole discretion.

User Use of Appcelerator Marketplace

3.1 In order to access certain services in the Appcelerator Marketplace, User may be required to provide information, such as User’s name, address, and billing details. User agrees that any such information User provide to Appcelerator will always be accurate, correct and up to date.

3.2 User agrees to use the Appcelerator Marketplace only for purposes that are permitted by the TOS and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. User agrees to comply with all applicable export controls. By using the Appcelerator Marketplace, User represents and warrants that User is not prohibited from receiving exports or services under US or other applicable export laws. User agrees to comply with all local laws and regulations regarding the download, installation or use of the Products.

3.3 User agrees not to attempt to access or access the Appcelerator Marketplace by any means other than through the interface that is provided by Appcelerator, Inc. User specifically agree not to attempt to access or access the Appcelerator Marketplace through any automated means.

3.4 User agrees that User will not engage in any activity that interferes with or disrupts the Appcelerator Marketplace or the servers and networks which are connected to the Appcelerator Marketplace. User agrees that User will not use any of the Products in a way that interferes or disrupts any servers, networks, or websites operated by Appcelerator or any third party

3.5 User agrees that User will not reproduce, duplicate, copy, sell or distribute the Appcelerator Marketplace.

3.6 User agrees that User is solely responsible for, and that Appcelerator has no responsibility to User or to any third party for, User’s use of the Appcelerator Marketplace and any Products, any breach of User’s obligations under the TOS, and for the consequences, including without limitation, loss or damage of any kind which Appcelerator may suffer as a result of such use or breach.

3.7 User agrees to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with User’s use of the Appcelerator Marketplace or the purchase of Products, and that the reporting and payment of any such applicable taxes are User’s responsibility.

3.8 User agrees that Appcelerator or third parties own all right, title and interest in and to the Appcelerator Marketplace and the Products available through the Appcelerator Marketplace, including without limitation all applicable Intellectual Property Rights in the Products. "Intellectual Property Rights" means any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights worldwide.

4. Open Source Products

Some components of Products may also be governed by applicable open source software licenses. In the event of a conflict between the TOS and any such licenses, the open source software licenses will prevail with respect to those components.

5. Updates

Products may communicate with Appcelerator servers from time to time to check for available updates to the Products. By purchasing these Products, User agrees to such automatically requested and received updates. User agrees that Appcelerator may collect certain personally identifiable information from users of the Products and Appcelerator will have the right to compile and distribute statistical analyses and reports utilizing aggregated data derived from information and data obtained from User, users, other Appcelerator customers and other sources.

6. Export Regulations

Products available on the Appcelerator Marketplace may be subject to export controls or restrictions by the United States or other countries or territories. User agrees to comply with all applicable United States and international export laws and regulations. These laws include restrictions on destinations, end users, and end use.

7. Indemnification

To the maximum extent permitted by law, User agrees to defend, indemnify and hold harmless Appcelerator, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including attorneys’ fees, arising out of User’s use of the Appcelerator Marketplace, including User’s downloading, installation, or use of any Products, or User’s violation of the TOS.

8. Term and Termination

8.1 The TOS will continue to apply until terminated by either User or Appcelerator as set out below.

8.2 If User wants to terminate the TOS, User may do so by ceasing User’s use of Appcelerator Marketplace and any Products purchased from the Appcelerator Marketplace.

8.3 Appcelerator may at any time, terminate the TOS with User if: (A) User has breached any provision of the TOS; or (B) Appcelerator is required to do so by law; or (C) Appcelerator decides to no longer provide the Appcelerator Marketplace.

8.4 When the TOS terminate, Sections 3.6, 3.7, 3.8, 4, 5, 6, 7, 8.4, 9, 10 and 11 will survive.

9. DISCLAIMER OF WARRANTIES

9.1 SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT THE USE OF THE APPCELERATOR MARKETPLACE AND ANY PRODUCTS OBTAINED THROUGH THE APPCELERATOR MARKETPLACE IS AT SUBSCRIBER’S SOLE RISK AND THAT THE APPCELERATOR MARKETPLACE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9.2 USE OF THE APPCELERATOR MARKETPLACE AND ANY PRODUCTS OBTAINED THROUGH THE USE OF THE APPCELERATOR MARKETPLACE IS AT SUBSCRIBER’S OWN DISCRETION AND RISK AND SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

9.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPCELERATOR FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY AND ALL PRODUCTS AND THE APPCELERATOR MARKETPLACE.

9.4 NONE OF THE PRODUCTS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

10. LIMITATION OF LIABILITY

SUBSCRIBER UNDERSTANDS AND AGREES THAT APPCELERATOR AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU THROUGH USE OF THE APPCELERATOR MARKETPLACE OR ANY PRODUCTS OBTAINED FROM THE APPCELERATOR MARKETPLACE, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT APPCELERATOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

11. General Terms

11.1 The TOS constitute the whole legal agreement between User and Appcelerator and govern User’s use of the Appcelerator Marketplace and Products, and completely replace any prior agreements between User and Appcelerator in relation to the Appcelerator Marketplace, Products, and Professional Services.

11.2 If Appcelerator does not exercise or enforce any legal right or remedy which is contained in the TOS (or which Appcelerator has the benefit of under any applicable law), this will not be taken to be a formal waiver of Appcelerator’s rights and that those rights or remedies will still be available to Appcelerator.

11.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the TOS is invalid, then that provision will be removed from the TOS without affecting the rest of the TOS. The remaining provisions of the TOS will continue to be valid and enforceable.

11.4 No person or company will be third party beneficiaries to the TOS.

11.5 The rights granted in the TOS may not be assigned or transferred by User, whether by operation of law or otherwise, without the prior written approval of Appcelerator.

11.6 The TOS will be governed by the laws of the State of California without regard to its conflict of laws provisions. User and Appcelerator agree to bring any and all actions under the TOS in exclusively in a court of competent jurisdiction located within the county of Santa Clara, California to resolve any legal matter arising from the TOS and each party agrees to submit to the exclusive jurisdiction of such court and waives all objections to such venue.