Terms and Conditions of Use
PLEASE READ THIS TITANIUM MODULE LICENSE SUBSCRIPTION AGREEMENT BEFORE DOWNLOADING OR USING THE MODULE. BY USING OR DOWNLOADING THE MODULE, CUSTOMER SIGNIFIES ITS ASSENT TO THIS LICENSE 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 IT MUST NOT DOWNLOAD OR USE THE MODULE.
Last Updated June 11, 2012
This Titanium Module License Subscription Agreement ("Agreement") is between Appcelerator, Inc. ("Appcelerator") and the purchaser or user of Appcelerator’s Module that accepts the terms of this Agreement ("Customer"). The effective date of this Agreement (“Effective Date”) is the earlier of the date that Customer downloads or uses the Appcelerator Module. Capitalized terms shall have the meanings given to them herein.
1. License Grant
1.1 Rights Granted to Customer
Subject to the terms and conditions of this Agreement and during the time that Customer has paid the applicable subscription fees for the Appcelerator Module, Appcelerator grants to Customer a non-transferable, non-exclusive, world-wide license to install and use the Module in the development of Applications for Customer’s own business use with Appcelerator Titanium.
1.2 Delivery of the Module Promptly upon execution of this Agreement, Appcelerator shall deliver the Module and Documentation to Customer via electronic download.
1.3 License Restrictions.
Customer is granted no rights in the Module other than those limited rights expressly set forth in this Section and Appcelerator expressly reserves to itself all rights not granted to Customer. The Module and the Documentation are licensed, not sold. Customer acknowledges that the Module 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 Module; (b) use (or cause or permit to be used) the Module 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; (c) distribute, sublicense, lease, rent, sell, loan or otherwise transfer the Module to any third party; (d) reverse engineer, decompile, or disassemble the Module; (e) except for the back-up purposes, the Module 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 Module and or the Documentation; (g) use Appcelerator Confidential Information to build a Module or product competitive to Appcelerator’s Platform and/or services; or (h) copy any features, functions or graphics of the Module and Services. Customer understands and agrees that under no circumstances will Customer re-sell, re-distribute or re-package the Module to another third-party.
1.4 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 the Module. 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 “ATTRIBUTION”) or other materials accompanying the Module.
2. Trademarks and Title
Customer hereby acknowledges that Customer does not acquire any rights in the Appcelerator trademarks. Customer may not use Appcelerator’s trademarks without express written permission from Appcelerator.
Title to the Module shall not pass from Appcelerator to Customer or any End User, and the Module and all master copies thereof shall at all times remain the sole and exclusive property of Appcelerator. Customer shall own all right, title and interest in and to the Applications, subject to Appcelerator owning all right, title and interest in and to the Module.
3.1 Customer shall pay the applicable subscription fees, if any, for the Module indicated when purchasing the Module subscription.
3.2 The Module may also connect to the Internet at any time to confirm compliance with this Agreement.
4. Term and Termination
Unless otherwise terminated earlier in accordance with the terms of this Agreement, the term of this Agreement shall be in effect so long as Customer is current in its payment of the applicable subscription fees, if any, for the Module. Appcelerator may terminate this Agreement for its convenience upon sixty days (60) written notice to Customer, and shall refund any prepaid but unused subscription fees upon termination.
Either party may terminate this Agreement, effective immediately upon written notice, under the following circumstances:
(a) Except as provided for in this Section 4.2, 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, then the other party may terminate this Agreement.
4.3 Effects of Termination
Upon termination or expiration of this Agreement, the licenses granted hereunder shall terminate, Customer shall immediately discontinue use of the Module and return copies thereof in its possession to Appcelerator. Upon any termination 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 that accrued prior to the dates of termination.
4.4 Survival of Certain Conditions
Notwithstanding anything to the contrary contained in this Agreement, Sections 1.3 (“License Restrictions”), 2.2 (“Title”), 3 (“Fees”), 4.3 (“Effect of Termination”), 4.4 (“Survival of Certain Conditions”), 4.5 (“Injunctive Relief”), 5 (“Upgrades and Warranty”), 6 (“Customer Indemnity”), 7 (“Confidential Information”), 8 (“Limitation of Liability; Allocation of Risk”), 9 (“Miscellaneous Provisions”) and 10 (“Definitions”) shall in all cases survive any expiration or termination of this Agreement.
4.5 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 under Section 1 above, 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.
5. Upgrades and Warranty
Appcelerator agrees to make available to Customer during the time that Customer has paid the applicable subscription fees, any Upgrades that Appcelerator may develop for the Module. Upgrades will be furnished to Customer at the same time that the relevant Upgrade is generally released to other customers who license the Module. 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 Module. The Module may make Internet connections to remote servers to check for software updates.
5.2 Limited Warranty
APPCELERATOR WARRANTS TO CUSTOMER ONLY, THAT FOR A PERIOD OF THIRTY (30) DAYS FOLLOWING THE DATE THE MODULE IS INITIALLY LICENSED BY CUSTOMER, THE MODULE WILL SUBSTANTIALLY CONFORM TO THE DESCRIPTION CONTAINED IN THE APPLICABLE DOCUMENTATION (“WARRANTY PERIOD”). IF DURING THE WARRANTY PERIOD THE MODULE DOES 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 ITS OPTION TO, CORRECT THE DEFECTS IN THE MODULE OR, IF APPCELERATOR IS UNABLE TO CORRECT THE DEFECT, APPCELERATOR WILL ACCEPT THE RETURN OF THE DEFECTIVE MODULE IN CUSTOMER’S POSSESSION AND APPCELERATOR WILL REFUND THE LICENSE FEES PAID BY CUSTOMER FOR SUCH DEFECTIVE MODULE. THE REMEDIES DESCRIBED IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND APPCELERATOR’S SOLE OBLIGATION FOR BREACH OF THE LIMITED WARRANTY FOR NON-CONFORMITY SET FORTH IN THIS SECTION.
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 5, THE MODULE, THE DOCUMENTATION AND INSTRUCTIONS FOR USE 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 MODULE, OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE. APPCELERATOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY MODULE WILL MEET THE REQUIREMENT OF CUSTOMER OR ANY END USER OF CUSTOMER OR THAT THE OPERATION OF ANY SUCH MODULE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE MODULE.
6. Customer Identity
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 You; (b) any modifications or enhancements to a Module made by or on behalf of Customer; (c) any Application; (d) Customer’s breach of Section 9.7 (Compliance with Laws) of this Agreement; or (e) Customer’s violation of any rights of another.
7. Confidential Information
Appcelerator may disclose to Customer certain Confidential Information (defined below). Customer agrees that the Confidential Information is the sole and exclusive property of Appcelerator (or a third party providing such information to Appcelerator) and that Appcelerator or such third party owns all worldwide rights therein under patent, copyright, trade secret, confidential information, or other proprietary rights. 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 return to Appcelerator 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. As used herein, “Confidential Information” means non-public information of Appcelerator that is disclosed to Customer, including but not limited to the Module and Documentation. Appcelerator is free to use and incorporate into its products and services any general ideas, know-how, and or techniques that are inherently disclosed to Appcelerator by Customer under this Agreement. 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.
8. Limitation Of Liability; Allocation Of Risk
8.1 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 THE SUBSCRIPTION FEES PAID BY CUSTOMER TO APPCELERATOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
8.2 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.
8.3 Allocation of Risk
Appcelerator and Customer agree that the foregoing Section 8.1 and Section 8.2 on limitation of liability and the Section 5 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 8 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
9. Miscellaneous Provisions
9.1 Entire Agreement
This Agreement contains the entire understanding of the parties hereto relating to the Module and Documentation, supersedes any prior or contemporaneous written or oral agreement or understandings between the parties with respect to the Module, 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 Module 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.
9.2 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.
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.
9.4 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.
Customer agrees that Appcelerator may use the Customer name, logos, and screen shots of Customer Applications for marketing and promotional materials. Customer grants Appcelerator the right to link to Customer’s website.
9.6 Compliance with Laws
Customer shall 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. Appcelerator shall develop and provide the Module in accordance with all applicable laws and regulations, including (without limitation) 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 Module. 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 the Module in violation of any U.S. export embargo, prohibition or restriction.>
9.7 Government Licensee
The Module 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 Module and related Documentation are provided to all U.S. Government end-users with only those rights set forth in this Agreement.
9.8 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.
9.9 Force Majeure
Except for the obligation to pay fees, 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.
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 Appcelerator at the address set forth above 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.
9.11 Data Privacy
10.1 "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.
10.2 "Application(s)" shall mean the software application that Customer will develop using the Appcelerator Titanium and Module.
10.3 "Documentation" shall mean the end-user guides and manuals customarily provided by Appcelerator to developers for use with the Module.
10.4 "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.
10.5 "Error" shall mean a failure of the Module to conform in all material respects with the applicable Documentation.
10.6 "Named Contact" shall mean a trained employee of Customer entitled to contact Appcelerator for Appcelerator Module and/or Support Services.
10.7 "Named Users" shall mean the named users who are authorized to access and use the Module on behalf of Customer. 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 by providing Appcelerator with at least five (5) business days prior written notice.
10.8 "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.
10.9 "Module" shall mean the licensed Appcelerator software module or any Upgrades thereto.
10.10 "Release" shall mean a change in the first digit of the Module version (e.g. 2.x, 3.x, 4.x).
10.11 "Specifications" shall mean Appcelerator’s published specifications for the Module contained in the applicable Documentation.
10.12 "Upgrade" shall mean a Release, Version or Maintenance Fix to the Module that Appcelerator makes generally available to licensees of the Module.
10.13 "Version" shall mean generally commercially released code corrections, patches, and minor version releases of the same Module 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).