Terms Of Service – October 31, 2012
Terms and Conditions Check Box
By checking off the ‘I Accept Terms and Condition’ box during the order process, you acknowledge you have read, understood, and are agreeing to all the terms and conditions associated with our service.
ThinkNRG, Inc. (“AppNRG”) provides a website (http://www.appnrg.com) (the “Website”) and platform for the creation of mobile applications, tablet applications, and mobile website services (“App” or “Apps”), and App development services, as well as hosting and other ancillary services (collectively the “Services”). By using the AppNRG website or the Services, you are agreeing to be bound by the following terms and conditions (the “Terms of Service”). Any new features that modify the Website or the Services, including the release of new tools or resources, shall be subject to these Terms of Service.
AppNRG reserves the right to change the Terms of Service at any time. Continued use of the Website or other Services after such change shall constitute your consent to such changes and your agreement to be bound by the Terms of Service as modified. You can view the current version of the Terms of Service at any time at: http://appnrg.com/app-nrg-terms-of-service/. Violation of the Terms of Service will result in the termination of your Account with AppNRG, and may result in damages to AppNRG.
You may create an account with AppNRG (“Account”) by signing up online and providing your full legal name, a valid email address, and other information requested by AppNRG (“User Information”). The requirements for creating and maintain an Account are as follows:
- You must be 13 years or older to use this Services.
- You must be a human. Accounts registered using automated methods are prohibited.
- You must promptly notify AppNRG of changes to your User Information.
- You must maintain the security of your account. AppNRG cannot and will not be liable for any loss or damage from your failure to do so.
- You are responsible for all Content posted and activity that occurs under your Account, even if posted by others.
- You may not use the Website or Services for any illegal or unauthorized purpose, including violation of any laws in your jurisdiction (including without limitation intellectual property laws).
- AppNRG will be the sole publisher of your App with any mobile platform provider including, but not limited to, for the Android Market, but excluding Apple Computer, Inc. (“Apple”). Such mobile platform providers are referred to in these Terms of Service as “Providers” and you may not use your own Account to publish an App with any such Providers. As noted above, Apple is not considered a Provider under these Terms of Service and consequently, if you use the Service to develop a Mobile Application for the platforms and operating systems for the mobile devices of Apple then you must enter into a separate agreement with Apple directly in this regard to become an Apple application developer and you and not AppNRG will be the publisher of your Apps for Apple mobile devices. Notwithstanding the foregoing, you agree, to provide AppNRG with full access to the account you create with Apple by providing AppNRG with your Apple account login details (e.g. email address/password) so that AppNRG may (i) initially publish your App, (ii) upgrade your Apps when AppNRG releases new versions of the Service, and (iii) track all revenue by you relating to such Apple Mobile Application and account for such revenues in the context of the Service.
Hours of Operation
Our Client Success Department is here to help, and we want your experience to be Fast, Friendly and Easy. You can reach us by phone at 800-632-8331 option 2 between the hours of 7am – 4pm PST Monday through Friday or by email at firstname.lastname@example.org. We will do everything in our power to respond to your needs as soon as possible, with after-hours messages received by our associates being responded to 24-48 hours following the next business day.
30-Day Free Trial
[Do-It Yourself Product]
We want you to experience our Do It Yourself product risk free, that’s why we give you 30 days to try us out. You may cancel during this trial period by simply contacting the Client Success Department. Following your free trial, you’ll be billed $99 each month based on your original order date.
[We Build It For You Product]
We take pride in what we do and work diligently with our clients to ensure their requirements and expectations are met when developing their app. Should you want us to build your mobile app, please be advised we require a one-time, non-refundable set up fee in order to commence work. We’ll make sure you’re pleased with the end result. You will however have no monthly fee for the first 30 days.
Your monthly subscription fee is automatically billed every 30 days to the credit card you have on file. The order date of your service is considered Day 1 within the billing cycle. If you request cancellation of your service before the end of the current billing cycle (up to Day 29), you will not be charged again.
You are solely responsible for any overdraft fees incurred within or associated with your account.
You may submit your request to cancel your service by phone at 800-632-8331 between the hours of 7am – 4pm Monday through Friday or by email at email@example.com.
As a general rule, Set Up and Monthly Subscription fees are not refundable or prorated.
Developer License Responsibility
You are solely responsibility to apply for a Developers License under your/your business name in order to publish your app and agree to pay the yearly fee associated with the Apple and/or Google publishing platforms. Further, in order for us to publish your app when ready, you agree to reveal your Developer License credentials to us prior to submitting your app for publishing.
AppNRG reserves the right to suspend or cancel your account from our platform due to non-payment. A $50 processing fee will be imposed to reinstate cancelled or suspended accounts upon AppNRG approval.
AppNRG provides the Services, which allow users to create mobile websites and/or Apps (collectively “Mobile Product(s)”). You agree not to reproduce, duplicate, copy, sell, resell, transmit, provided access to, or exploit any portion of the Website or the Services, use of the Website or the Services, or access to the Website or the Services without the express written permission of AppNRG.
Free Services: AppNRG provides certain Services (the “Free Services”) without charge, including a platform for you to build a free mobile website (the “Free Mobile Website”). By using the Free Services, you agree (i) not to include any advertising material of any kind on the Free Mobile Website, and (ii) to allow AppNRG in its sole and exclusive discretion to include any and all advertising on the Free Mobile Website and not to interfere in any way with such advertising (either directly or through third parties).
Paid Services: AppNRG makes available certain services for a fee, including a one-time Setup Fee and recurring Monthly Fees (“Paid Services”). Information on the scope of the Paid Services and pricing is available http://appnrg.com/pricing/.
The Setup Fee for Paid Services shall be due and payable as soon as you agree to have AppNRG provide Paid Services to you. The Monthly Fee shall be due and payable on the day you agree to have AppNRG provide Services to you, and on the same day in each month thereafter, until your Account is terminated. All fees are exclusive of all taxes, levies, or duties, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
A valid credit card is required to begin using the Paid Services. All payments shall be made to by credit card, and will be automatically billed to the credit card provided by you. If, at any time, your bank or credit card company declines, rejects, or refuses to pay any payable fee, or if AppNRG is unable to process a payment owed for any reason (e.g., overdraft, insufficient balance, account closure or credit card expiration) this will be considered a breach of your obligation hereunder, your Account will automatically be terminated, and you will be charged a $35 processing fee. Your use of the Services will not resume until you re-subscribe for any such Services and pay any outstanding amounts owed (including unpaid fees and the processing fee).
There will be no refunds or credits for Setup Fees or Monthly Fees (including without limitation partial months of service). In order to treat everyone equally, no exceptions will be made.
Changes to Services: AppNRG reserves the right at any time to modify, supplement or discontinue the Services (or any part thereof) or the Website at any time for any reason or no reason, including without limitation the scope of the Services provided or the price of the Services, with or without notice. From time to time, AppNRG may issue updates to the Website or any Mobile Products, which may add, modify, and/or remove features or functionality. These updates may be made automatically with little or no notice. AppNRG reserves the right to transfer all or any portion of the Services to another party, upon thirty (30) days written notice.
If you decide to distribute your App through a Provider, we will collect from the Provider the revenue share resulting from (i) the sale of the App (total sales revenue, as determined by the Provider, less revenue share retained by the Provider) (“Application Sales Revenue”), and retain twenty percent (20%) of Application Sales Revenue, and/or (ii) payments made by App users for activities within the App (total revenue for such in-application payments, as determined by the Provider, less revenue share retained by the Provider) (“In-Application Revenue”) and retain twenty percent (20%) of such In-Application Revenue. We will remit to you the remainder amount of such Application Sales Revenue and In-Application Revenue within thirty (30) days of our receipt of the Provider’s payment thereof. By way of illustration, if the Provider’s revenue share is thirty percent (30%) and the total Application Sales Revenue is one dollar (1$), the Provider will retain 30¢, AppNRG will retain 20¢, and you will be entitled to 50¢.
If you decide to sell any digital media (including music, videos or other content) through the App by using iTunes, Amazon, or 7digital (“Stores”), you may only use straight links to the Stores (i.e., you are not allowed to use any affiliate links). You acknowledge and agree that AppNRG may use affiliate links to the Stores and retain 100% of the applicable affiliate revenue. You may use affiliate links to any other store, other than the Stores, through which you sell your App.
For Apple Apps created using the Service you agree to pay to AppNRG the following: (i) twenty percent (20%) of any sales revenue you receive from Apple for sales of your App, (ii) twenty percent (20%) of payments made by App users for activities within the App that you receive from Apple, and (iii) if you decide to include any kind of advertising in such App using the AdWhirl service (or a similar service), twenty percent (20%) of any revenues you receive for such advertising. All such payments will be made either (a) directly via the Service for which fees AppNRG will charge your credit card or (b) by sending payments to AppNRG via wire transfer, in accordance with the terms that are set forth on the applicable invoice, which terms are incorporated herein by reference and form part of these Terms of Service.
Third-Party Developer Accounts
If you contract for Services that include publication of your Mobile Product on a third party platform, including the Apple Appstore or Google Play, AppNRG will use commercially reasonable efforts to have the application approved by the appropriate mobile platform provider. AppNRG does not and cannot guarantee acceptance. In order to publish your App in the Apple Appstore , you must enter a separate agreement with those services to create developer accounts. If you seek to have AppNRG publish your App on such platforms, you agree to enter such agreements and to create and maintain such accounts at your expense. For more information on creating such accounts, see:
- Apple: http://support.appnrg.com/customer/portal/topics/222949-apple-developer-accounts/articles
- Google: http://support.appnrg.com/customer/portal/articles/483044-how-do-i-register-for-my-android-developer-account-
You agree to provide AppNRG with full access to the your developer accounts and to provide AppNRG with your account information (e.g. email address and password), and authorize AppNRG to publish and update any Mobile Product on such platform. AppNRG is under no obligation to update such Mobile Products. AppNRG’s publication of your App is expressly conditioned on your successful creation and maintenance of developer accounts and your providing access to AppNRG.
100% Satisfaction Guarantee
If for whatever reason you are unsatisfied with your mobile application within the first month of service, AppNRG guarantees to refund the first Monthly Fee with no questions asked. AppNRG is backed by a 100% satisfaction guarantee.
This guarantee does not apply to requests made after a full month of service has passed and only applies to the initial month of service with AppNRG.
Content and Content Ownership
For purposes of this section, the term “Content” means any discoveries, developments, concepts, designs, ideas, know how, improvements, inventions, trade secrets and/or original works of authorship, whether or not patentable, copyrightable, or otherwise legally protectable, of any kind or in any form. Without limiting the generality of the foregoing, Intellectual Property includes any program, source or object code, product, machine, algorithm, method, procedure, process, technique, use, equipment, device, apparatus, system, composition, design, configuration, script, text, typeface, story, concept, animation, drawing, graphic, image, photograph, sound effect, music, or audio or video recording, in any form whatsoever.
AppNRG reserves all right, title and interest in any and all Content owned, licensed or developed by AppNRG or its agents, affiliates, or assigns, including without limitation Content included in a Mobile Product. You are not granted any right, title or interest in such Content. Conditional on your compliance with this Terms of Service and any other agreements between you and AppNRG (including without limitation any payment obligations), AppNRG hereby grants you a non-exclusive, royalty-free, fully paid up, perpetual, worldwide license to use, copy, publish, publicly perform or exhibit, display, sell, otherwise distribute, or sublicense (on the same terms set forth in this Paragraph), any Mobile Products created by you or created for you by AppNRG or any reproduction thereof. The license granted in this Paragraph shall terminate upon the termination of your Account, or upon your failure to comply with these Terms of Service or any other agreement between you and AppNRG.
User Supplied Content
AppNRG does not claim any right, title or interest in content submitted by you in connection with the Website, the Services or any Mobile Product (“User Supplied Content”). You hereby grant AppNRG an irrevocable, non-exclusive, transferable, royalty-free, full paid up, perpetual, worldwide license to use, access, adapt, modify, translate, exhibit, publish, publicly perform or display, copy, create derivative works or compilations from, sublicense (on the same terms set forth in this Paragraph), transmit, broadcast or otherwise exploit any User Supplied Content, or any reproduction or simulation thereof, in any form now existing or hereafter discovered, in connection with the Services, the Website or any Mobile Product, or for promotional and/or marketing purposes. This License shall survive the termination of your Account.
AppNRG does not pre-screen User Supplied Content and is not responsible for such Content, which remains the sole responsibility of the user. You agree not to submit any content that is abusive, threatening, illegal, pornographic, obscene, offensive, libellous or defamatory, that violates any intellectual property rights of any person or entity, or that violates these Terms of Service or any other agreement between you and AppNRG or any third party. AppNRG may remove any Content that it determines, in its sole discretion, to be unsuitable from the Website or any Mobile Product, and may terminate your Account as a result of your supplying such content. Although AppNRG reserves the right to remove offensive, obscene or unsuitable content from the Website or Mobile Products, users may nevertheless be exposed to such material, and use the Website and Mobile Products at their own risk.
Look and Feel of Service
The look and feel of the Service is copyright 2012 ThinkNRG, Inc. All rights reserved. You may not copy, transmit, broadcast, perform or exhibit, or otherwise use any portion of the HTML/CSS, visual design, graphics, design elements, or text in any form without express written permission from AppNRG.
You agree not to engage in any of the following activities in connection with the AppNRG website or the Services (“User Misconduct”):
- Modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with any website or service offered by AppNRG or its affiliates.
- Upload, post, host, or transmit unsolicited email, SMS, or “spam” messages.
- Transmit any viruses, worms or any other destructive or malicious code or programs.
Your engaging in any User Misconduct will result in immediate termination of your Account with AppNRG.
Cancellation and Termination
You are responsible for properly cancelling your Account. Account cancellation requests must be submitted in writing to support @ appnrg (dot) com. Cancellations by phone or sent to any other email address will not be considered valid. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again. All of your User Supplied Content may be deleted by AppNRG upon cancellation. This Content cannot be recovered once your Account is cancelled.
AppNRG, in its sole discretion, reserves the right to refuse service to anyone and to suspend or terminate any Account for any reason or no reason at any time. Such termination will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all User Supplied Content in your Account.
You agree to promptly take all actions and execute all documents reasonably necessary to implement these Terms and Conditions and to allow AppNRG to carry out the Services specified herein or in any other agreements between you and AppNRG, as may be requested from time to time by AppNRG.
Disclaimers; Limitations on Liability
Your use of the WEBSITE Or acceptance of the services is at your own risk. The website and the services are provided on an “as is” and “as available” basis, without warranties of any kind, express or implied. YOU Assume the entire risk of defects in the website, the services, or any mobile product, and the entire cost of repair or replacement of any mobile product. Appnrg SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES of non-infringement, merchantability and fitness for a particular purpose of the website, the services or any mobile product. In no event shall APPNRG be liable for any damage whatsoever to YOU or to any third party arising out of the SERVICES, the WEBSITE, or any mobile product, including without limitation damages arising from the use or inability to use THE services, website or any MOBILE PRODUCT, or CHANGES TO SERVICES, the website or any mobile product. Without limiting the generality of the foregoing, APPNRG will not be liable for incidental or consequential damages of any kind, even if appnrg has been informed of the possibility thereof.
IN THE EVENT THAT appnrg IS, NEVERTHELESS, FOUND LIABLE TO you OR any third party for any claim related to this AGREEMENT, the services, the website, or any mobile product, appnrg’s total liability SHALL BE LIMITED TO the price of the services paid by you IN THE twelve (12) months before such claim arose, OR, in the case of free services, $100. This Limitation of liability shall not limit liability for intentional, willful or GROSSLY NEGLIGENT conduct.
You agree to defend, indemnify, and hold AppNRG, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Website, the Services or any Mobile Product; (ii) your violation of these Terms of Service; or (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right by you or your Mobile Products. You agree to advance any expenses and/or costs associated with any such claim as incurred.
You and AppNRG agree that any dispute arising out of or relating to these Terms of Service or to the relationship between you and AppNRG (“Disputes”) will be settled by binding arbitration before the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Disputes of the AAA (“AAA Rules”) in effect at the time the Dispute arises; provided, however, that (i) you and AppNRG retain the right to bring an action in small claims court in Los Angeles, California; and (ii) that neither you nor AppNRG waives the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or other violation of a party’s intellectual property rights.
A party who seeks to initiate arbitration or other proceeding must provide notice to the other party at least five (5) business days before commencing such arbitration or proceeding, and attempt in good faith to resolve the Dispute without resort to such proceedings. If such negotiations do not resolve the Dispute, such party must provide the other party with a written Demand for Arbitration as provided in the AAA Rules. Any arbitration will be before either a retired judge or an attorney licensed to practice law in the state of California, who will be selected by the parties from the American Arbitration Association’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within five (5) business days of delivery of a Demand for Arbitration than the American Arbitration Association will appoint an arbitrator in accordance with the AAA Rules.
Any arbitration shall proceed in Los Angeles, California. If your claim does not exceed $10,000 the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, unless the arbitrator determines that a hearing is necessary. Any other claim will be determined in accordance with the AAA Rules. The arbitrator’s decision will be binding, and judgment thereon may be entered in any court having jurisdiction thereof. The arbitrator’s award for damages must be consistent with the Limitations on Liability set forth in these Terms of Service. Each party shall bear its own expenses in connection with any Dispute, including attorney’s fees, and shall bear one-half (1/2) of the arbitrator’s fees and costs; provided, however, that if the arbitrator determines that any party’s claim is frivolous, such party shall bear the entirety of the other party’s costs in connection with such Dispute (including without limitation expenses, attorney’s fees, and arbitrator’s fees and costs).
You expressly acknowledge and agree that you hereby waive your rights to pursue a class or representative proceeding or to participate in such a proceeding as a plaintiff, class member, or representative in any Dispute (whether in arbitration or otherwise). You further expressly acknowledge and agree that you hereby waive your right to a trial by jury in any Dispute.
Notwithstanding AppNRG’s right to modify these Terms of Service without notice, if AppNRG changes this Section after the date you first accepted these Terms of Service (or any subsequent modifications), AppNRG shall notify you of any changes to this Section. You may reject any such change by terminating your Account with AppNRG within thirty (30) days of delivery of such notice.
This section shall survive the termination of your Account.
You understand and acknowledge that AppNRG uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
These Terms of Service or any other agreement between you and AppNRG may not be modified by you, except in a writing signed by AppNRG. The failure of AppNRG to exercise or enforce any right under the Terms of Service or any other agreement between you and AppNRG, or any delay in enforcing such right, shall not constitute a waiver of such right or provision. Any waiver of any right of AppNRG must be in the form of a writing signed by AppNRG.
These Terms of Service constitute the entire agreement between you and AppNRG and govern your use of the Service, superseding any prior agreements, negotiations, representations or promises between you and AppNRG (including, but not limited to, any prior versions of the Terms of Service); provided, however, that such Terms of Service may be supplemented by an express written agreement between you and AppNRG signed by both parties.
The construction, performance, and enforcement of any Terms of Service and any other agreement between you and AppNRG, and any relationship created hereby or thereby, shall be governed by the laws of the State of California, without respect to principles of conflicts of laws. Any lawsuits or other proceedings arising under your relationship with AppNRG, created through these Terms of Service or otherwise (including without limitation proceedings to enter a judgment following arbitration), shall be brought in the state or federal courts located in Los Angeles, California; you submit to personal jurisdiction in such courts and agree that such courts are a convenient forum for a resolution of any disputes between you and AppNRG.
These Terms of Service and any other agreements between you and AppNRG are not intended to confer, and do not confer, any rights upon any third parties. You may not assign your rights under these Terms of Service or any such agreements to any third party under any circumstances, without the express written consent of AppNRG.
If any provision of these Terms of Service or any other agreements between you and AppNRG is deemed invalid or unenforceable, such provision shall be stricken, and remainder of the provisions in these Terms of Service or such other Agreement shall remain in full force and effect.
Questions about the Terms of Service should be sent to support @ appnrg. com.
Technical support is only available via email. The technical support email address is support @ appnrg (dot) com.