AppMaker Terms and Conditions

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AppMaker Terms and Conditions

AppMaker is a product name of Namesco Limited and Namesco Limited is a third party reseller of Refresh Mobile Limited.

By using AppMaker, you ("You", "Your") are agreeing to be bound by this Agreement. If you do not wish to be bound, please exit this site and do not use the AppMaker service.

Refresh Mobile Limited ("Refresh", "Us") may modify any of the terms and conditions contained in this Agreement at its sole discretion without prior notice to you. It is your responsibility to check these terms and conditions on a regular basis as your continued usage of the service will be deemed by Refresh to be acceptance of the amended terms and conditions. All changes will be effective once posted on this site.

Service Description and General Use Provisions

1.

Refresh provides users a solution via their reseller, Namesco Limited, called AppMaker that enables individuals and businesses to use web-based software tools to create mobile applications for delivery to mobile telephony devices (the "Services").

2.

Refresh shall provide You with access to Refresh's web-based software tools that will allow You to design mobile applications via the Service.

3.

You agree that if you use the AppMaker service, or any part thereof, you possess all rights to use and distribute any Content provided to the Service.

4.

You agree that if you use the AppMaker service, or any part thereof, Refresh have permission to install mobile applications created by the Service on your device, devices to which you and others share the mobile application and devices that download the application from Refresh or any 3rd party site where the application URL is exposed.

5. Distribution.

Mobile Applications built using AppMaker will be available to download from the Apple app store and Google Play and, depending on your subscription package, the Apple App Store and Google Play. All applications will be submitted either into the Namesco Apple Account in the case of Apple Apps and the Customers own individual account in the case of Google Play Apps. By purchasing the AppMaker product The Customer consents to Namesco using the Customer details to either enter the Customers details to its Namesco Apple App Store account or to creating a Google Play account on behalf of the Customer. In the case of GooglePlay accounts the Customer will be subject to the additional Terms of Service and Privacy policies of Google found at https://www.google.co.uk/intl/en/policies/terms/regional.html and https://www.google.co.uk/intl/en/policies/privacy

Namesco cannot guarantee the acceptance of a mobile application in to any application store. If applications are rejected you will be refunded the appropriate amount.

You are responsible for the promotion and marketing of Your mobile application.

6. Support.

Namesco Limited will provide first line support for AppMaker.

7. Managed Service

Refresh shall procure, build and maintain an App for You to use to provide the Managed Services. This includes build of Your app taking into account your instructions and design and content cues from Your website and/or Facebook pages. The Managed Service also manages all updates of Your apps. Refresh will respond to Your request for the Managed Service within 48 hours and build Your App within 4 working days of an order for the Managed Service being placed and paid for. You will have an opportunity to review the App and changes to the App can be made on no more than 3 separate occasions. Once the App has been built Refresh will provide ongoing support directly to You as part of the Managed Service.

8. Your Obligations.

a. You shall not include in the Content any material that we reasonably believe:

i. constitutes or encourages child pornography or is otherwise obscene, sexually explicit or morally repugnant;

ii. is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;

iii. is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;

iv. is defamatory or violates a person's privacy;

v. creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement bodies;

vi. improperly exposes trade secrets or other confidential or proprietary information of another person;

vii. is intended to assist others in defeating technical copyright protections;

viii. infringes another person's trade or service mark, patent, or other property right;

ix. is discriminatory in any way, including by way of sex, race, or age discrimination;

x. facilitates any activity or conduct that is or may be defamatory, pornographic, obscene, indecent, abusive, offensive or menacing;

xi. involves theft, fraud, drug-trafficking, money laundering or terrorism;

xii. is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to us; and

xiii. is otherwise malicious, fraudulent, or may to result in retaliation against us by offended viewers.

xiv. promote a service which can be reasonably classified as a competitor of the AppMaker service

b. You shall not:

i. attempt to duplicate, modify or distribute any portion of the AppMaker Service;

ii. without the prior written consent of Refresh, use all or any part of the Services to provide services to third parties; or

iii. transfer, temporarily or permanently, all or any of its rights hereunder.

9. Use of Logos.

Refresh may display Your Logos in connection with the Service and on Refresh's website in a manner reasonably acceptable to Content Provider. Refresh agrees that, as between the parties this Agreement does not confer on Refresh any right of ownership in the Logos and all uses by Refresh of the Logos will inure to the benefit of the respective owners of the Logos.

10. Ownership.

You shall retain all right, title and interest in and to the Content and the Logos. Refresh or its licensors shall retain all right, title and interest in and to the Service, including the AppMaker Site and all content therein.

11. Warranty and Disclaimer.

a. You represents and warrants to Refresh that: (i) You have all necessary rights to grant the rights and licenses granted hereunder, including, without limitation, sufficient rights to Content provided by You; (ii) You has the power and authority to enter into and perform its obligations under this Agreement; (iii) You currently has no restrictions that would impair its ability to perform its obligations under this Agreement; (iv) Content does not and will not infringe upon third party intellectual property rights; (v) Content will not defame or otherwise injure any third party and (vi) Your performance of its obligations under this Agreement does not and will not infringe upon any third party privacy or publicity rights.

For the avoidance of doubt, nothing on the AppMaker website ("Site") or within the Service confer any license or ownership right in or to the content on the Site, or the Services offered, under any of Refesh's intellectual property rights,

b. Refresh represents and warrants to You that: (i) Refresh has the power and authority to enter into and perform its obligations under this Agreement and (ii) to the best of Refresh's knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement.

c. EXCEPT FOR THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

12. Confidentiality.

Each party agrees that all business, technical and financial information it obtains from the other party that is marked "Confidential" or "Proprietary," (or, if verbally disclosed, is disclosed in such a manner that a reasonable person would understand that such information is confidential) are the confidential property of the disclosing party ("Proprietary Information"). Except as expressly allowed herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party. The receiving party shall not be obligated under this Section with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without reliance on such Proprietary Information.

13. Limited Liability.

EXCEPT IN CONNECTION WITH THE SECTIONS RELATING TO CONFIDENTIALITY AND INDEMNITY HEREIN:

a. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR: (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; and

b. NEITHER PARTY'S LIABILITY WILL EXCEED THE FEES RECEIVED BY SUCH PARTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT DURING THE 12 MONTHS PRECEEDING ANY CLAIM.

14. Indemnity.

You shall defend, indemnify, and hold Refresh harmless from any liability, damages, costs and expenses, including reasonable attorneys' fees, relating to a third party claim that is related to or in connection with your breach of any representation or warranty in this Agreement. Refresh will promptly notify you in writing of any such claim. Refresh shall give you sole control over the defence and/or settlement of any such claim, except that you will not agree to any settlement or compromise that would require Refresh to make any payments or bear any obligations unless you obtains Refresh's prior written approval.

15. Termination.

a. This Agreement may be terminated by either party in the event the other party materially breaches a provision of this Agreement and fails to cure such breach within fourteen (14) days after receiving written notice of such breach from the non-breaching party. Refresh may terminate this Agreement at any time, without cause, upon thirty (30) days prior written notice.

b. Sections 5 and 7 through 15 of this Agreement shall survive termination or expiration of this Agreement. Termination of this Agreement shall terminate the licenses granted hereunder. Upon termination of the Agreement, Refresh shall return or destroy the Content received by Refresh prior to such termination.

16. Miscellaneous.

Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns, and personal representatives. Content Provider shall not assign this Agreement in whole or part without the prior written consent of Refresh. This Agreement contains the entire understanding of the parties regarding its subject matter and supersedes all other agreements and understandings, whether oral or written. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. If any portion of this Agreement is held to be illegal or unenforceable, that portion shall be restated, eliminated or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the parties and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of England and Wales without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys' fees.