Appcelerator® Platform Terms of Use

Last Updated: October 1, 2015

Please read these terms and conditions (these "Terms") carefully as they form a contract between you ("Subscriber" or "you") and Appcelerator, Inc., with its principal place of business at 1732 N. 1st Street, Suite 150, San Jose, CA 95112, USA ("Appcelerator", we", "us", or "our") that governs your access and on-demand use of: (i) the Appcelerator Platform provided by Appcelerator for the development and publishing of mobile applications ("Applications"), (ii) storage and processing of runtime code, files, materials, data, text, audio, video, images or other content (collectively, "Content") on the Appcelerator Cloud ("Cloud"); and (iii) Application analytics (collectively the "Platform"). Unless Appcelerator agrees otherwise in a signed writing between the parties, these Terms governs your use of the Platform except to the extent all or any portion of the Platform: (a) is the subject of a separate written signed agreement; or (b) is governed by a third party licensor’s terms and conditions. Capitalized terms have the definitions in Section 2 or as otherwise indicated below.

By registering or using the Platform you agree to be bound by these Terms (including your corresponding subscription plan) and any modifications to these Terms that may be made from time to time. If you are using the Platform on behalf of an organization, you are agreeing to these Terms for that organization and promising to Appcelerator that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Platform. You may use the Platform only in compliance with these Terms and only if you have the power to form a contract with Appcelerator and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE PLATFORM. Should you have any questions concerning these Terms, please contact LEGAL@APPCELERATOR.COM

Please note that Appcelerator doesn't provide warranties for the Platform. This contract also limits our liability to you. See Sections 17 (NO WARRANTY) and 19 (LIMITATION OF LIABILITY) of these Terms for details.

1. MODIFICATION OF TERMS.

We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Appcelerator website. Any changes will be effective upon posting the revised version of these Terms (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Platform and/or by email to the email address associated with your account. Notice of other changes may be provided via http://www.appcelerator.com (the "Site") or related Appcelerator blogs. Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Platform constitutes your acceptance of such changes. If you don't agree to any of the changes, we're not obligated to keep providing the Platform, and you must cancel and stop using the Platform.

2. DEFINITIONS.

"Account" means a unique account established by Subscriber to enable its Registered Users to access and use the Platform on a Subscription basis.

"API Call" shall mean a network request made by the Application to Appcelerator's servers to store data, retrieve data, and/or trigger Communication Events.

"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.

"Runtime" shall mean Appcelerator’s proprietary compiler code necessary to run an Application.

"Subscription" means the right to access and use the Platform for a specified period in exchange for a periodic fee, subject to the Plan restrictions and requirements that are used to describe the selected Plan on the Site. Restrictions and requirements may include any or all of the following: (a) number of Seats that a Subscriber may use per month or year for a fee; (b) monthly API calls; (c) Content storage capacity; (d) analytics data retention period; (e) service level agreement; and (f) support package.

"Seat" means an active Registered User listed in the membership of an Account at any one time. No two individuals may log onto or use the Subscription Service as the same Registered User, but Subscriber may unregister or deactivate Registered Users and replace them with other Registered Users without penalty, so long as the number of active Registered Users registered at any one time is equal to or less than the number of Seats purchased.

3. ACCESS TO THE PLATFORM.

You may use the Platform, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws

4. YOUR ACCOUNT.

To obtain access to the Platform, you may be required to obtain an account with Appcelerator (become a "Registered User"), by completing a registration form and designating a user ID and password. Until you apply for and are approved for an account your access to the Platform will be limited to the areas of the Platform, if any, that Appcelerator makes available to the general public. When registering with Appcelerator you must: (a) provide true, accurate, current and complete information about yourself as requested by the Platform's registration form (such information being the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Appcelerator may deny approval or withdraw such approval at any time in its sole discretion, with or without cause. The Platform may make Internet connections to remote servers to authenticate that you are a Registered User.

Only you may use your Appcelerator account. You must keep your account and passwords confidential and not authorize any third party to access or use the Platform on your behalf, unless we provide an approved mechanism for such use. Appcelerator will not be liable for any loss or damage arising from any unauthorized use of your accounts.

If a third party such as an employer gave you your account, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read or store Content in your account. If you are an individual Registered User of the Platform, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between Appcelerator and such organization and controlled by such organization.

5. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.

By registering with Appcelerator, you understand that we may send you communications or data regarding the Platform, including but not limited to: (a) notices about your use of the Platform, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding Appcelerator's products and services, via electronic mail. We give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.

6. APPLICATIONS.

a. Except for material that we license to you, we don't claim any ownership of Application(s) that you develop and publish using the Platform.

b. You will: (a) be solely responsible for the nature and quality (including the storage or transmission thereof) of your Application(s); (b) ensure that your Application(s) complies with these Terms and any and all applicable laws and regulations including those laws and regulations designed to protect against the unauthorized use and disclosure of c. You hereby grant Appcelerator and its contractors the right to publish, d. If you develop Applications for an unrelated third party ("End personally identifiable information; (c) promptly handle and resolve any notices and claims relating to your Application(s); (d) maintain appropriate security, protection and backup copies of the your Application(s). Appcelerator will have no liability of any kind for or as a result of your Application(s).

c. You hereby grand Appcelerator and its conractors the right to publish, transmit, and disclose your Application solely to the extent necessary to provide the Platform, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Appcelerator believes in good faith requires Appcelerator to disclose information to assist in preventing the death or serious bodily injury of any person.

d. If you develop Applications for an unrelated third party ("End Customer"), then any distribution of the Application(s) shall be accomplished under a license agreement ("Sublicense Agreement") between you and the End Customer. Any Sublicense Agreement must contain terms no less protective of Appcelerator under this Agreement. You will promptly notify Appcelerator of any violation of a Sublicense Agreement of which you become aware, and will take commercially reasonable efforts to enforce each Sublicense Agreement.

7. ANALYTICS.

Appcelerator may provide platform, timestamp, device identifier, model, manufacturer, operating system, Appcelerator Platform version and geolocation data (collectively "Analytics"), for the time period stated in the Plan, for each Application that is expressly enabled by you to collect such Analytics as part of the Platform. You expressly agree that you will not create any custom fields to collect and send personally identifiable information as part of the Analytics to Appcelerator. We don't claim ownership of any Analytics that is transmitted, stored, or processed by your Application(s). We also don't control, verify, or endorse the Analytics that you make available on the Platform via your Application. You hereby grant Appcelerator and its contractors the right to transmit, use and disclose your Analytics solely to the extent necessary to provide the Platform, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Appcelerator believes in good faith requires Appcelerator to disclose information to assist in preventing the death or serious bodily injury of any person. You represent and warrant that: (a) you have all the rights necessary for your Application to transmit the Analytics to Appcelerator and to grant the rights in this Section; and (b) the storage, use or transmission of the Analytics doesn't violate these Terms and any and all applicable laws and regulations including those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information. Depending on your Plan, the Analytics may be downloaded or made available via the Executive Insights tablet app. For avoidance of doubt, you may not use the Platform API or the Analytics export function to: build a competing analytics service, provide Analytics to third parties as a service, or to avoid purchasing sufficient licenses to access Analytics. Appcelerator shall have the right to use the Analytics in perpetuity and to compile and distribute statistical analyses and reports utilizing aggregated Analytics.

8. CONTENT IN THE CLOUD.

Except for material that we license to you, we don't claim ownership of any Content that is transmitted, stored, or processed in your account(s) or by your Application(s) in the Cloud. We also don't control, verify, or endorse the Content that you and others make available on the Platform, in the Cloud or via your Application.

You hereby grant Appcelerator and its contractors the right to transmit, use and disclose your Content solely to the extent necessary to provide the Platform, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Appcelerator believes in good faith requires Appcelerator to disclose information to assist in preventing the death or serious bodily injury of any person.

You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Platform and to grant the rights in this Section; and (b) the storage, use or transmission of the Content doesn't violate any law or these Terms.

You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws and regulations including those laws and regulations designed to protect against the unauthorized use and disclosure of personally identifiable information; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. Appcelerator will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.

You must immediately notify Appcelerator in writing of any unauthorized use of: (a) any Content (b) any account or (c) the Platform that comes to your attention. In the event of any such unauthorized use by any third party that obtained unauthorized access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Appcelerator with such cooperation and assistance related to any such unauthorized use as Appcelerator may reasonably request.

9. CONTENT STORED IN THE UNITED STATES.

The Platform is provided from the United States. By using and accessing the Platform, you understand and consent to the storage and processing of the Content and any other personal information in the United States. Appcelerator may change the location at any time and will use commercially reasonable efforts to provide you with at least 30 days notice of any such changes in the location. Appcelerator also reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide you with at least 30 days notice of any such changes in the processing location.

10. SUSPENSION AND TERMINATION OF USE OF THE PLATFORM.

We reserve the right, to temporarily suspend or terminate your access to the Platform at any time in our sole discretion, with or without cause, with or without notice, and without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Platform for: (a) the actual or suspected violation of these Terms; (b) the use of the Platform in a manner that may cause Appcelerator to have legal liability or disrupt others' use of the Platform; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity, APIs, or bandwidth; or (f) unplanned technical problems and outages. If, in Appcelerator's determination, the suspension might be indefinite and/or Appcelerator has elected to terminate your access to the Platform, Appcelerator will use commercially reasonable efforts to notify you through the Platform and/or by email to the email address associated with your account. You acknowledge that if your access to the Platform is suspended or terminated, you may no longer have access to the Content that is stored with the Platform.

You must remove all of your Content before expiration of your Subscription. Otherwise, any Content you have stored with the Platform or accessed by your Application(s) will not be retrievable, and we will have no obligation to maintain any data stored in your account.

In addition to other termination provisions, if your account it not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (a) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User; or (b) you do not engage in any activity in your account for any period of one hundred and twenty (120) consecutive days. In the event of such termination, any Content you may have stored will be lost.

11. ACCEPTABLE USE.

You must not use the Platform to harm others or to create Applications to harm others or the Platform itself. For example, you must not use the Platform to harm, threaten, or harass another person, organization, or Appcelerator and/or to build a similar service. You must not: damage, disable, overburden, or impair the Platform (or any network connected to the Platform); resell or redistribute the Platform or any part of it; use any unauthorized means to modify, reroute, or gain access to the Platform or attempt to carry out these activities; or use any automated process or Platform (such as a bot, a spider, or periodic caching of information stored by Appcelerator) to access or use the Platform. In addition, you promise that you will not and will not encourage or assist any third party to:

  1. modify, alter, tamper with, repair or otherwise create derivative works of any Software;
  2. reverse engineer, disassemble or decompile the software used to provide or access the Platform, including the Software, or attempt to discover or recreate the source code used to provide or access the Platform, except and only to the extent that the applicable law expressly permits doing so;
  3. use the Platform in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any user guides or any other policy, instruction or terms applicable to the Platform that are available on the Platform ("Policies");
  4. sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Platform to any third party;
  5. remove, obscure or alter any proprietary rights notice pertaining to the Platform;
  6. access or use the Platform in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
  7. use the Platform in connection with the operation of nuclear facilities, aircraft navigation, communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Platform could lead to death, personal injury, or physical property or environmental damage;
  8. use the Platform to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
  9. interfere with or disrupt servers or networks used by Appcelerator to provide the Platform or used by other users' to access the Platform, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of any Software or the Platform;
  10. access or attempt to access Appcelerator's other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
  11. cause, in Appcelerator's sole discretion, inordinate burden on the Platform or Appcelerator's system resources or capacity; or
  12. share passwords or other access information or devices or otherwise authorize any third party to access or use the Software or the Platform.

Appcelerator reserves the right, in its sole discretion, to deactivate, change and/or require you to change your Appcelerator user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Platform for any reason or for no reason. Appcelerator may exercise such right at any time, with or without prior notice. We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right, in our sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint. We will not assume or have any liability for any action or inaction with respect to any Content.

12. UPDATES TO THE PLATFORM.

Appcelerator reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Platform at any time. We may add or remove functionalities or features, and we may suspend or stop a Platform altogether. All updates will be licensed pursuant to these Terms. The Platform may make Internet connections to remote servers to check for updates.

13. SOFTWARE.

If you receive Software from us, its use is governed in one of two ways: If you're presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software.

We may automatically check your version of the Software. We may also automatically download to your computer or device new versions of the Software.

Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Platform Subscription ends. You must then discontinue use of and uninstall the Software, or we may disable it. Notwithstanding the foregoing, you are granted a perpetual license to use the Runtime for Application(s) published during the Subscription Term. You must not work around any technical limitations in the Software.

The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Platform without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's compliance list at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern. You represent and warrant that you're not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.

Open Source Software used in the Platform 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 Platform. 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 Platform. The Open Source Software terms may be found at http://www.appcelerator.com/opensource.

14. THIRD PARTY SERVICES AND CONTENT.

All transactions using Appcelerator's services are between the transacting parties only. The Platform may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that we are not responsible for such content or services. We may also provide some content to you as part of the Platform. However, Appcelerator is not an agent of any transacting party, nor or we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Platform, and you irrevocably waive any claim against us with respect to such sites and third-party content. Appcelerator shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Platform, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breaches.

15. APPCELERATOR PROPRIETARY RIGHTS.

As between Appcelerator and you, Appcelerator or its licensors own and reserve all right, title and interest in and to the Platform and all hardware, software and other items used to provide the Platform, other than the rights explicitly granted to you to use the Platform in accordance with this Terms. No title to or ownership of any proprietary rights related to the Platform is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Appcelerator. In the event that you provide comments, suggestions and recommendations to Appcelerator with respect to the Platform (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Platform) (collectively, "Feedback"), You hereby grant to Appcelerator a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Platform.

16. PRIVACY.

In order to operate and provide the Platform, we collect certain information about you and your Application(s). As part of the Platform, we may also automatically upload information about your Application(s), computer or device, your use of the Platform, and Platform performance. We use and protect that information as described in the privacy policy located at http://www.appcelerator.com/privacy/ ("Privacy Policy"). You further acknowledge and agree that we may access or disclose information about you, including the Content, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Appcelerator or our customers, including the enforcement of our agreements or policies governing your use of the Platform; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Appcelerator employees, customers, or the public.

We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Platform as part of our efforts to protect the Platform, protect our customers, or stop you from breaching these Terms.

17. NO WARRANTY.

APPCELERATOR PROVIDES THE PLATFORM "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPCELERATOR MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

18. INDEMNIFICATION.

To the extent permitted by law, You will defend Appcelerator against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, Application(s) created by you or your use of the Platform, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Appcelerator's actions); or (b) violates applicable law or these Terms. Appcelerator will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

19. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL APPCELERATOR, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF APPCELERATOR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF APPCELERATOR AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE PLATFORM WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL TO THREE MONTHS OF YOUR SUBSCRIPTION FEE FOR THE PLATFORM OR FIVE DOLLARS ($5.00). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

20. CONTRACTING PARTY; GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES.

You are contracting with Appcelerator, Inc. with an address at 1732 N. 1st Street, Suite 150, San Jose, CA 95112, USA. The laws of the State of California, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Santa Clara County, California, USA, for all disputes arising out of or relating to these Terms. Appcelerator may assign this contract to another entity at any time with or without notice to you.

21. NOTICES.

We may send you, in electronic form, information about the Platform, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Platform or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Platform. You may provide legal noticed to us via email to legal@appcelerator.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Appcelerator, Attn: General Counsel, 1732 N. 1st Street, Suite 150, San Jose, CA 95112, USA. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.

22. FEES & PAYMENTS.

a. Fees

The fees applicable for the Platform ("Fees") are available on the Site and/or in Appcelerator’s then-current published price list. The price stated for the Platform excludes all taxes and charges, unless stated otherwise. You're responsible for any taxes and for all other charges incidental to using the Platform (for example, data charges and currency exchange settlements). You will pay the Fees in the currency Appcelerator quoted for your account. Appcelerator reserves the right to change the quoted currency at any time.

We'll notify you in advance, either through the Platform or to the email address you have most recently provided to us, if we change the price of the Platform. If there's a specific length and price for your Platform offer already in effect, that price will remain in force for that time. After the offer period ends, your use of the Platform will be charged at the then-current price. If your Platform is on a period basis (for example, monthly) with no specific length, we'll notify you of any price change at least 30 days in advance. If you don't agree to these changes, you must cancel and stop using the Platform no later than thirty (30) days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, your Platform ends at the end of your current Platform period or payment period. If you fail to cancel in accordance with these Terms, we will automatically renew the Platform at the then-current price and for the same subscription period and will charge your credit card on file with us commencing on the first day of the renewal of the subscription period.

b. Payment

You must be authorized to use the credit card that you enter when you create a billing account. You authorize us to charge you for the Platform using your credit card and for any paid feature of the Platform that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Platform. Also, we may charge you up to the amount you've approved, and we'll notify you in advance of the difference for recurring subscription Platform. We may bill you simultaneously for more than one of your prior billing periods. We may automatically renew your Platform and charge you for any renewal term. All paid accounts are due the date the invoice is posted on your account. Except as specifically set forth in this section, all Fees are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable. This includes accounts that are renewed.

You must keep all information in your billing account current. You can access and modify your billing account information using the Site. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for the Subscription, we may cancel your Subscription. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.

Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your access to the Platform if you fail to pay in full on time.

23. SUBSCRIPTION PERIOD.

You may elect one of the following subscription plans and billing options, as applicable to your subscription plan and available on the Site:

a. A monthly subscription plan ("Monthly Subscription Plan"). The subscription period for the Monthly Subscription Plan will be one month and will automatically renew unless you cancel your Monthly Subscription Plan in accordance with these Terms at least thirty (30) days prior to the renewal date. You will be billed monthly for the Monthly Subscription Plan on or about the same day each month until such time that you cancel your Monthly Subscription Plan.

b. An annual subscription plan ("Annual Subscription Plan"). The subscription period for the Annual Subscription Plan will be one year and will automatically renew each year on the anniversary of your Annual Subscription Plan unless you cancel your Annual Subscription Plan in accordance with these Terms at least thirty (30) days prior to your renewal date. You will be billed annually for the Annual Subscription Plan on or about the same day each year until such time that you cancel your Annual Subscription Plan. For the avoidance of doubt, please note, you will not be permitted to cancel, reduce the number of seats, or downgrade the Appcelerator Platform you have selected until the anniversary of your Annual Subscription Plan. There will be no refunds for Annual Subscription Plan payments. Please be certain you are committing to a one (1) year period if you select the Annual Subscription Plan. If you are not certain, we recommend choosing the Monthly Subscription Plan.

c. If you select the Monthly Subscription Plan, you can switch to the Annual Subscription Plan at any time. If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Subscription Plan.

24. MISCELLANEOUS.

a. Severability; Entire Agreement

These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Platform. It supersedes any prior contract or oral or written statements regarding your use of the Platform.

b. Assignment and transfer

We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Platform.

c. Independent Contractors; No third-party beneficiaries

Appcelerator and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.

d. Claims

Claims must be filed within one year. You must bring any claim related to these Terms or the Platform within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.

e. Waiver

The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

f. Government Use

If you are a U.S. government entity, you acknowledge that any Software and user guides that are provided are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

25. COPYRIGHT COMPLAINTS AND REMOVAL POLICY.

Appcelerator does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable Content alleged to violate these Terms and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement is:

Attn: DMCA Copyright Agent
Appcelerator, Inc.
1732 N. 1st Street, Suite 150
San Jose, CA 95112
USA
legal@appcelerator.com

Federal law requires your DMCA Notice to include the following information:

  1. Identification of the copyrighted work that you claim has been infringed;
  2. Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it;
  3. Your address, telephone number, and e-mail address;
  4. A statement declaring under penalty of perjury that (a) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in your notice is accurate, and (c) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and
  5. Your physical or electronic signature.

26. INTELLECTUAL PROPERTY NOTICES.

All contents of the Site and Platform including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright ® Appcelerator, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.

Appcelerator and the Appcelerator logo are including without limitation, either trademarks, service marks or registered trademarks of Appcelerator, Inc., and may not be copied, imitated, or used, in whole or in part, without Appcelerator's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.

Appcelerator may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Platform. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Platform does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.

27. MARKETING.

You agree that Appcelerator may use your pre-approved name and logos for marketing and promotional materials. You grant Appcelerator the right to link to your website. You agree to use reasonable efforts to arrange for appropriate personnel to be available to serve as references for the Platform and Appcelerator in the event of an inquiry from any member of the press, any industry analysts or any potential customer. You agree to work with Appcelerator to prepare a case study/reference testimonial about the Platform.