cloud agreement

7/28/2019 Cloud Agreement

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APP EXPLORE LICENSE AGREEMENT FOR APPCELERATOR TITANIUM STUDIO

Last updated October 10, 2012

THIS IS A LONG AGREEMENT OF LEGALESE THAT NOBODY IN THEIR RIGHT MIND WOULD READWITHOUT BEING BRAIN DAMAGED OR JAILED FOR LIFE. WE CANT CHANGE IT RULES ARE RULES SO WERE MAKING IT LOOK REALLY BORING, COMPLEX AND OVERLY IMPORTANT BY USING SMALL FONTS AND CAPITALIZED WORDS HERE AND THERE.

For clarification, this Agreement expressly does not cover the use or license ofTitanium SDK. Titanium SDK, Titanium CLI and Alloy are licensed under the Apache License, Version 2.0, see http://www.apache.org/licenses/LICENSE-2.0.html, andmay be found on Github at http://github.com/appcelerator/titanium_mobile, http://github.com/appcelerator/titanium and http://github.com/appcelerator/alloy respectively.

Titanium Studio at the App Explore level is a free closed-source commercial product subject to the terms herein. Use of Studio under App Explore is provided absolutely free of charge. Use of the Appcelerator Analytics and/or Appcelerator Cloud Services is free up to a certain tier found at http://www.appcelerator.com/plans-pricing. You may incur fees or have certain usage disabled or reduced for usage beyond the free App Explore tier as set forth on the Appcelerator website. No support or other services will be available from Appcelerator under the termsof this Agreement at the App Explore level.

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT BEFORE INSTALLING OR USING TITANIUMSTUDIO (STUDIO) . BY INSTALLING OR USING STUDIO, CUSTOMER SIGNIFIES ITS ASSENT TOTHIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE STUDIO.

This Software License Agreement (Agreement) is between Appcelerator, Inc. (Appcelerator) and the user of Studio that accepts the terms of this Agreement (Customer or ou). The effective date of this Agreement (Effective Date) is the earlier of the date that Customer downloads or uses Studio.?????1. FEEDBACK

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about Studio (Submissions), ?provided by You to Appcelerator are non-confidential and Appcelerator will be entitled to the unrestricteduse and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. Nothing in this Agreement will, or is intended to, limit Appcelerators ability to develop or enhance Studio and in any manner whatsoever, including use of residual knowledge.2. LICENSE GRANT2.1 Rights Granted to Customer. Subject to the terms and conditions of this Agreement, Appcelerator grants to Customer a non-transferable, non-exclusive, world-wide license to install and use Studio on a computer owned or leased by Customerand to access and use Studio solely to develop Applications and to include the

Runtime as part of the Applications. Studio may make Internet connections to remote servers to (a) check for updates; and (b) provide developer usage statisticsregarding Studio (Studio Analytics) used by Appcelerator to improve Studio. Studio may also connect to the Internet at any time to confirm compliance with this Agreement.

2.2 Delivery of Studio. Appcelerator shall deliver Studio and Documentation to Customer ex works via electronic download.

2.3 License Restrictions. Customer is granted no rights in Studio other than tho


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se limited rights expressly set forth in this Agreement and Appcelerator expressly reserves to itself all rights not granted to Customer. Studio and the Documentation are licensed, not sold. Customer acknowledges that Studio is protected bycopyright, patent, trademark, trade secret or other proprietary rights and laws. Accordingly, except as expressly permitted in this Agreement, Customer agreesnot to and shall not allow any third party to: (a) modify, adapt, alter, recast,transform, translate or create derivative works from Studio; (b) use (or causeor permit to be used) Studio for rental, lease, service bureau or application service provider, as part of a software as a service offering; (c) distribute, sublicense, lease, rent, sell, loan or otherwise transfer Studio to any third party; (d) reverse engineer, decompile, or disassemble Studio, except to the extent such activities are permitted under applicable mandatory laws that may not be limited by contract, potentially including, without limitation, laws implementing EU Directive 91/250/EEC provided, however, that Customer shall not exercise any such rights without giving Appcelerator thirty (30) days prior written notice andan opportunity to provide interoperability information or other items to Customer to alleviate the need to engage in the activities that are prohibited under this Agreement ; (e) Studio may not be copied or otherwise reproduced; (f) remove, alter or obscure in any way any copyright or other proprietary rights on or within Studio and or the Documentation; (g) build a product or service competitiveto Studio utilizing Appcelerators Confidential Information (as defined below); (i) incorporate Studio with third party products or services to create a combinedoffering; or (j) copy any features, functions or graphics of Studio. Customer understands and agrees that under no circumstances shall Customer re-sell, re-dis

tribute or re-package Studio to another third-party. For the avoidance of doubt,redistribution of the Application which may include the Appcelerator Cloud Services in a third-party application marketplace (such as Apple iTunes) or to the Customers End User is expressly granted.

2.4 Advertisements. Appcelerator expressly reserves the right to serve ads in Studio itself but not the right to serve ads in any Customer Applications unless Customer has given express consent. If and only if Customer has expressly signedup for ad delivery in its Application via separate third party ad vendors (see ad-modules available in Appcelerators Open Mobile Marketplace), then Customer grants Appcelerator the right to include ads on Customers behalf in the Applicationsdeveloped with Studio.

2.5 Open Source Software. The Open Source Software is licensed under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses directory, the Documentation or other materials accompanying Studio. Copyrights to the Open Source Software are held by copyright holders indicated in the copyright notices in the corresponding source files or inthe open_source_licenses file (or similarly named file such as CREDITS) or other materials accompanying Studio.3. USE OF THE APPCELERATOR CLOUD SERVICES (ACS)

ACS is designed to provide Customer with optional backend technology for cloud services enablement for your Application. If You choose to deploy ACS in your Application, then ACS terms posted at www.appcelerator.com/legal/legal-agreements/acs shall apply to the Applications use of ACS and are expressly incorporated into

this Agreement by reference. In case of a conflict between the ACS terms and the terms of this Agreement, the terms of the ACS shall control solely as to the provision of the ACS only. Use of ACS beyond the allocated free tier provided under App Explore shall incur a charge as set forth at http://www.appcelerator.com/plans-pricing.4. OWNERSHIPTitle to Studio shall not pass from Appcelerator to Customer. Studio shall at all times remain the sole and exclusive property of Appcelerator. Subject to the foregoing, Customer shall own all right, title and interest in and to the Application and user content contained in the Application.


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5. TERM OF AGREEMENTUnless otherwise terminated earlier in accordance with the terms of this Agreement, the initial term of this Agreement shall begin on the Effective Date.6. TERMINATION AND BREACH6.1 Termination for Cause Either party may terminate this Agreement, effective immediately upon written notice, if either party materially breaches any term ofthis Agreement and such breach has not been cured within thirty (30) days afterthe other party has given written notice of such breach, the non-breaching partymay terminate this Agreement. ??

6.2 Termination for Convenience. You may terminate this Agreement for any reasonby providing Appcelerator notice. Appcelerator may terminate this Agreement forany reason by providing You thirty (30) days advance notice.

6.3 Effect of Termination. Upon termination or expiration of this Agreement, theStudio license granted hereunder shall terminate, and Customer shall immediately discontinue use of and de-install Studio. Customer shall destroy all Appcelerator Confidential Information. Notwithstanding the foregoing, Customer is granteda perpetual license to use the Runtime as part of the Application(s) created using Studio. Customer remains responsible for all fees and charges that is has incurred through the date of termination, including fees and charges for Appcelerator Cloud Services and Appcelerator Analytics as applicable.

6.4 Survival of Certain Conditions. Notwithstanding anything to the contrary con

tained in this Agreement, Sections 1 (Feedback), 2.3 (License Restrictions), 4 (Owship), 6.3 (Effect of Termination), 6.4 (Survival of Certain Conditions), 7 (Injue Relief), 8 (Disclaimer of Warranty), 9 (Indemnity), 10 (Confidential Informatio(Limitation of Liability; Allocation of Risk), 12 (Fees) 13 (Miscellaneous Proviss) and 14 (Definitions) shall in all cases survive any expiration or termination ofthis Agreement.7. INJUNCTIVE RELIEFCustomer understands and agrees that Appcelerator may suffer irreparable harm inthe event that Customer fails to comply with any of its obligations hereunder,and that monetary damages in such event may be inadequate to compensate Appcelerator. Consequently, in such event Appcelerator may be entitled, in addition to such monetary relief as may be recoverable by law, to such temporary, preliminaryand/or permanent injunctive relief as may be necessary to restrain any continui

ng or further breach by Customer.8. DISCLAIMER OF WARRANTYSTUDIO, THE DOCUMENTATION, AND ANY SERVICES (PROVIDED IN APPCELERATORS SOLE DISCRETION) ARE PROVIDED AS IS WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. APPCELERATOR DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF STUDIO, OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, OR OTHERWISE. APPCELERATOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN STUDIO WILL MEET THE REQUIREMENT OF CUSTOMER OR ANY CUSTOMER OF CUSTOMER OR THAT THE OPERATION OF STUDIO WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES THE ENTIRERISK AS TO THE RESULTS AND PERFORMANCE OF STUDIO. APPCELERATOR MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHA

NTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPCELERATOR, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTYOR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.9. INDEMNITYCustomer shall defend, indemnify and hold Appcelerator harmless from and againstall judgments, penalties, damages, settlements, costs and expenses (including reasonable legal fees and costs), losses or liabilities which may arise or resultfrom: (a) any violations of this Agreement by Customer; (b) any Application; (c) Customers breach of Section 13.7 (Compliance with Laws) of this Agreement; and/


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or (d) Customers violation of any rights of another.10. CONFIDENTIAL INFORMATIONAs used herein, Confidential Information means non-public information of Appcelerator that is disclosed to Customer, including but not limited to information about Studio and Documentation. Appcelerator may disclose to Customer certain Confidential Information and Customer agrees that the Confidential Information is thesole and exclusive property of Appcelerator (or a third party providing such information to Appcelerator). The disclosure of the Confidential Information to Customer does not confer upon Customer any license, interest or rights of any kindin or to the Confidential Information. Customer shall hold in confidence and will not, directly or indirectly, use, reproduce, distribute, reverse engineer, decompile, transfer, or disclose the Confidential Information or any portion thereof other than as necessary to perform its obligations or exercise its rights under this Agreement. Customer shall destroy all Confidential Information, togetherwith all copies and material relating thereto (a) upon termination or expirationof this Agreement for any reason, or (b) upon request by Appcelerator. Customersobligations with regard to the Confidential Information shall remain in effectduring the term of this Agreement and for a period of five (5) years thereafter.11. LIMITATION OF LIABILITY; ALLOCATION OF RISK11.1 Limitation of Liability. APPCELERATORS TOTAL AGGREGATE LIABILITY AND CUSTOMERS 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 APPCELERATORS SOLE NEGLIGENCE, IN AN AMOUNT NOT TO EXCEED FIVE DOLLARS

(US $5).

?11.2 Exclusion of Damages. TO THE FULL EXTENT ALLOWED BY LAW, APPCELERATOR EXCLUDES ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF APPCELERATOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

11.3 Allocation of Risk. Appcelerator and Customer agree that the foregoing Section 11.1 and Section 11.2 on limitation of liability and the Section 8 above onexclusion of warranties fairly allocate the risks in the Agreement between the p

arties. Appcelerator and Customer further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 11 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.12. FEES AND PAYMENT TERMSStudio is provided free of charge. Use of the Appcelerator Analytics and/or ACSmay incur fees for use beyond the free App Explore tier as set forth on the Appcelerator website http://www.appcelerator.com/plans-pricing. Use of the ACS by your Application may incur fees for use associated with storage space, per bandwidth charge, Communication Events (push/email), use of API Calls, and other services depending on the tier of services. Appcelerator calculates and bills fees andcharges monthly. Appcelerator may bill You more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pa

y Appcelerator the applicable fees and charges for use of the Appcelerator Analytics and/or ACS as described on the Appcelerator Site using one of the payment methods we support. All amounts payable under this Agreement will be made withoutsetoff or counterclaim, and without any deduction or withholding. Fees and charges for Appcelerator Analytics and/or ACS or new feature of a service will be effective when we post updated fees and charges on the Appcelerator website unlesswe expressly state otherwise in a notice. Appcelerator may increase or add newfees and charges for any existing Appcelerator Analytics and/or ACS by giving You at least 30 days advance notice. Appcelerator may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all lat


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e payments. All fees and charges payable by You are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide Appcelerator any information we reasonably request to determine whether we are obligatedto collect VAT from You, including your VAT identification number. If You are legally entitled to an exemption from any sales, use, or similar transaction tax,You are responsible for providing Appcelerator with legally-sufficient tax exemption certificates for each taxing jurisdiction. Appcelerator will apply the taxexemption certificates to charges under your account occurring after the date wereceive the tax exemption certificates. If any deduction or withholding is required by law, You will notify Appcelerator and will pay Appcelerator any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, You will provide Appceleratorwith documentation showing that the withheld and deducted amounts have been paidto the relevant taxing authority.13. MISCELLANEOUS PROVISIONS13.1 Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to Studio and Documentation, supersedes any prior or contemporaneous written or oral agreement or understandings between the parties withrespect to Studio, and cannot be changed or terminated orally. This Agreement may be amended only in writing signed by the authorized representatives of the parties hereto.

13.2 Severability; Waiver. If any provision in this Agreement is invalid or unen

forceable, that provision shall be reformed to the maximum extent allowed by lawto 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 partypurporting to make the waiver, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.

13.3 Assignment. Customer may not assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of Appcelerator. All rights and obligations arising out of this Agreement shall inure to the benefit of, and be binding on and enforceable by the parties and their respective permitte

d successors and permitted assigns.

13.4 Independent Contractors. Customer and Appcelerator shall perform their duties pursuant to this Agreement as independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or other joint relationship between Customer and Appcelerator. Neither party shall have the ability to incur any obligation on behalf of the other party.

13.5 Appcelerator Analytics from Application(s). When you use Studio, you have access to Appcelerator Analytics up to the allowed free App Explore tier. Appcelerator Analytics enables you to track how your End Users use your Applications toimprove your products and services. Appcelerator may collect certain information from End Users of your Applications, including, but not limited to platform, m

odel, manufacturer, operating system version of the device on which the End Useruses your application, the timestamps in which the End User launches and exitsyour application, Titanium SDK Version, and geolocation data (i.e., longitude and latitude of the location where the End User uses your Application) if geolocation APIs are used in Titanium SDK and if expressly granted by End User (Appcelerator Analytics). You may also create custom analytics events for your Applicationthat are collected according to the execution logic of the Application, howeverYou agree that you shall not create custom fields to collect and send personallyidentifiable information about your End Users to Appcelerator. Appcelerator Analytics is collected and sent back to Appcelerators servers. You can access this d


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ata up to the free App Explore tier, at any time by going to the my.appcelerator.com/apps page and clicking on the Analytics button for your Application. Usage ofAppcelerator Analytics beyond the free App Explore tier shall incur fees listedat http://www.appcelerator.com/plans-pricing. You may opt-out of Appcelerator Analytics for your Application by modifying the Applications tiapp.xml file to change the setting to false. CUSTOMER MUST DISABLE APPCELERATOR ANALYTICS IF REQUIREDBY APPLICABLE LAW. In addition, Appcelerator shall have the right to use Appcelerator Analytics to compile and distribute statistical analyses and reports utilizing aggregated data derived from this information.

13.6 Data Privacy. Appcelerator collects certain personal data from the Studio Analytics and non-personally identifiable information from Appcelerator Analytics. Appcelerator shall have the right to compile and distribute statistical analyses and reports utilizing aggregated data derived both Studio Analytics and Appcelerator Analytics. Appcelerator shall use commercially reasonable efforts to comply with all applicable laws and regulations regarding the collection and use ofsuch personal data and personally identifiable information. Customer also agrees to use commercially reasonable efforts to comply with all applicable laws andregulations regarding the collection and use of such personal data and personally identifiable information and provide any notices or terms of services as may be required by any laws, statutes and regulations. Appcelerator has the right, for any purpose, to retain, use, and publish in an aggregate manner, information collected in both Studio Analytics and Appcelerator Analytics. Appcelerator willnot disclose to any third parties any information collected from the Studio Anal

ytics and/or Appcelerator Analytics in a manner that contains or reveals any personally identifiable information or is specifically attributable to Customer, Customers Applications or the End User. Customer will not (and will not allow any third party to) use Studio to track or collect personally identifiable information from its End Users, nor will Customer (or will Customer allow any third partyto) associate any data gathered from Customers Application with any personally identifying information from any source as part of Customers use (or such third parties use) of Studio. Customer must post a privacy policy and that policy must provide notice of Customers use of a tracking pixel, agent or any other visitor identification technology that collects anonymous data about End Users of Customers Applications. Appcelerators privacy policy is available at www.appcelerator.com/privacy and is incorporated into this Agreement by reference.

13.7 Compliance with Laws. Customer shall use and distribute the Application inaccordance with all applicable laws and regulations, including (without limitation) export laws and regulations and those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information. Appcelerator shall develop and provide Studio in accordance with all applicable laws and regulations, including (without limitation) export laws and regulations and those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information. Each party shallcomply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the ACS. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shallnot access or use ACS in violation of any U.S. export embargo, prohibition or r

estriction.

13.8 Government Licensee. Studio and related Documentation provided shall be commercial computer software and commercial computer software documentation, respectively, as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations (FAR) and its successors and 48 C.F.R. 227.7202 of the Department of DefenseFAR Supplement (DFARS) and its successors. In accordance with FAR 12.212 or DFARS227.7202, as applicable, Studio and related Documentation are provided to all U.S. Government end-users with only those rights set forth in this Agreement.


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13.9 Governing Law. This Agreement shall be governed and construed in accordancewith 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 claimor 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 Conventionon Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.

13.10 Force Majeure. A partys performance under this Agreement is excused if thatparty is unable to perform under this Agreement due to an event beyond its reasonable control, including without limitation, natural disasters, labor unrest, government restrictions, and the like.

13.11 Notices. All notices or other communications permitted or required to be given pursuant to this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, mailed first class mail, postage prepaid, sent by confirmed facsimile transmission or sent by express overnight courierservice to each partys corporate headquarters address, or to such other address as any such party may have designated by like notice forwarded to the other partyhereto.14. DEFINITIONS14.1 API Calls shall mean network request made by the Application to Appcelerators

servers to store data, retrieve data, and/or trigger communication events.

14.2 Application shall mean the software application Studios that Customer will develop using Studio.

14.3 Communication Events shall mean a push notification sent to an Application End Users mobile device, or an email sent to an Application End Users email account.A single API call made by the Application may trigger multiple communication events.

14.4 Documentation shall mean the end-user guides and manuals customarily providedby Appcelerator to developers for use with Studio.

14.5 End User shall mean a customer licensed to use the Application for its own internal business operations, but not for allowing further access, sublicensing ordistribution to third parties.

14.6 Open Source Software shall mean various open source software components licensed under the terms of applicable open source license agreements. Open Source Software is composed of individual software components, each of which has its owncopyright and its own applicable license conditions.

14.7 Studio or Studio shall mean the Appcelerator Titanium Studio software and tool.

14.8 Runtime shall mean the Appcelerator proprietary compiler code inserted into t

he Application through use of Studio needed to run the Application.

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