APPGENIE has created this refund policy to describe the circumstances when APPGENIE will
issue a refund, the process for claiming a refund against an order and the liabilities
of APPGENIE related to a transaction ending in a refund claim. By registering for any of
APPGENIE services, you are stating that you have read and accept all of the terms and
conditions outlined in this refund policy.
1. Duties and Responsibilities
APPGENIE shall serve as an independent contractor of Buyer, and shall design, develop,
and implement an application according to the agreed scope and related information, if
any, and incorporated herein by reference ("Specifications") and as more fully set forth
in this Agreement (“the Software”). APPGENIE has been contracted for this specific task
only, and it will report all findings and make all recommendations directly to the
management of Buyer or as otherwise directed by Buyer. The Software, including all
versions in either source code or object code form, shall be delivered to Buyer as soon
as the Beta version is approved by the Buyer for the launch. APPGENIE will deliver an
updated version of the Software, to the extent one exists, to Buyer at the end of the
warranty period.
2. Ownership of Software
The development of the Software is "work for hire" within the meaning of the Copyright
Act of 1976, as amended from time to time, and the Software shall be the sole property
of Buyer once it is completed and paid for by Buyer as herein provided. APPGENIE hereby
assigns to Buyer, without further compensation, all of its rights, title and interest in
and to the Software and any and all related patents, patent applications, copyrights,
copyright applications, trademarks and trade names for the Software. All versions of the
Software shall contain Buyer's conspicuous notice of copyright. Buyer will purchase the
publishing accounts and other appropriate licenses and provide the respective
credentials to APPGENIE . APPGENIE will upload and publish the Software under the
Buyer’s name unless otherwise directed by Buyer.
3. Independent Contractor
APPGENIE is acting as an independent contractor with respect to the services provided to
Buyer. Neither APPGENIE nor the employees, consultants or contractors of APPGENIE
performing services for Buyer will be considered employees or agents of Buyer. Buyer
will not be responsible for APPGENIE ’s actions or the actions of APPGENIE ’s employees
while performing services under this Agreement. Nothing contained in this Agreement
shall be construed to imply a joint venture, business, partnership or principal-agent
relationship between the parties, and neither party, by virtue of this Agreement, shall
have any right, power or authority to act or create any obligation, express or implied,
on behalf of the other party.
4. General
Client may not assign or subcontract this Agreement, or any rights or obligations
hereunder, whether by operation of contract, law, or otherwise, except with the express
written consent of APPGENIE , and any attempted assignment in violation of this Section
shall be void.
5. Limitation of Liabilities
APPGENIE shall not be liable for any special, exemplary, consequential, incidental,
indirect or punitive damages whatsoever (including but not limited to damages related to
(i) Loss of business, anticipated revenues or profits, or any other pecuniary loss, (ii)
Damages for loss of data, personal or confidential information or privacy. This
limitation shall be effective if any remedy fails of its essential purpose.
6. Development Staff-Monitoring
APPGENIE will utilize employees and/or contractors capable of designing and implementing
the Software to be developed per this Agreement. All work shall be performed in a
professional and workmanlike manner. APPGENIE shall arrange for such employees and/or
contractors, if any, to execute and deliver any document or instrument reasonably
requested by Buyer to reflect Buyer's ownership of the Software or in connection with
any application for patent or copyright.
7. Change in Specifications
Buyer may request that changes be made to the Specifications, other aspects of the
Agreement, or tasks associated with this Agreement. If Buyer requests any such changes,
APPGENIE will use its best efforts to implement the requested changes at no additional
expense to Buyer and without delaying delivery of the Software. In the event that the
proposed change will cause a delay in delivery of the Software or additional expense to
Buyer, then Buyer and APPGENIE shall confer, and Buyer shall, in its discretion, elect
either to withdraw its proposed changes or agree that APPGENIE may deliver the Software
with the proposed changes subject to a new delivery schedule and Buyer’s payment to
APPGENIE of any additional expense. If Buyer’s proposed change does not affect the then
current phase of the project, then the proposed change will be considered after the
completion of that then current phase.
8. Confidentiality
A. APPGENIE acknowledges that all material and information supplied by Buyer which has or
will come into APPGENIE ’s possession or knowledge in connection with APPGENIE ’s
performance hereunder, is to be considered Buyer's confidential and proprietary
information. By way of illustration, but not as a limitation. Confidential Information
includes the Software, trade secrets, processes, data, know-how, program codes,
documentation, flowcharts, algorithms, marketing plans, forecasts, unpublished financial
statements, budgets, licenses, prices, costs, and employee and customer lists. APPGENIE
’s undertakings and obligations under this Section will not apply, however, to any
Confidential Information that: (i) is or becomes generally known to the public through
no action of APPGENIE , (ii) is generally disclosed to third parties by Buyer without
restriction on such third parties, or (iii) is approved for release by written
authorization of Buyer. Upon termination of this Agreement or at any other time upon
request with reasonable advance notice given, APPGENIE will deliver to Buyer all notes,
memoranda, notebooks, drawings, records, reports, files, documented source codes and
other documents (and all copies or reproductions of such materials) in its possession or
under its control, whether prepared by APPGENIE or others, which contains Confidential
Information to the extent that such material exists. APPGENIE acknowledges that
Confidential Information is the sole property of Buyer. APPGENIE agrees that disclosure
of such information to, or use by, third parties, either during or after this Agreement,
will in the strictest confidence, not to make use of it other than for the performance
of this Agreement. APPGENIE agrees to use best efforts to release Confidential
Information only to the APPGENIE employees or contractors with a need to know such
information and not to release or disclose Confidential Information to any other party.
APPGENIE further agrees not to release such information to any employee or contractor
who has not signed a written agreement between APPGENIE and the employee expressly
binding the employee not to use or disclose the Confidential Information, except as
expressly permitted in this Agreement.
B. APPGENIE agrees to keep these negotiations with Buyer and performance of APPGENIE ’s
obligations hereunder confidential and not to disclose that information to any third
party or entity without the prior written permission of Buyer.
9. Training
APPGENIE shall provide Buyer’s employees with training on how to use the Software at no
additional cost to Buyer as may reasonably be requested by Buyer from time to time after
acceptance of the Software by Buyer. All training that APPGENIE provides hereunder shall
be performed at such locations and at such times as are mutually agreed to by the
parties. Upon the expiration of the Training Period of 15 days after deployment and upon
Buyer's request, APPGENIE will provide support services necessary to assist Buyer with
the use of the Software. Such services will be performed on a time and material basis at
APPGENIE ’s then current hourly rates for such services.
10. Warranties
A. APPGENIE warrants that for a period of three months following acceptance, the Software
will operate according to the Specifications.
B. If during the warranty period the Software does not operate according to the
Specifications, APPGENIE shall, at its expense, fix the Software so that it operates to
the Specifications, which will be Buyer’s sole and exclusive remedy hereunder. If
APPGENIE cannot fix the Software to operate according to the Specifications or fails to
develop and deliver the Software as agreed herein, Buyer’s sole and exclusive remedy is
to reimburse the cost that it paid to APPGENIE for the Software to date, and under no
circumstances will APPGENIE be liable to Buyer for and Buyer express waives and releases
APPGENIE from any incidental, consequential, punitive, exemplary, lost sales, lost
profits or any other type or nature of any alleged damages, fees, costs or claims except
for the limited reimbursement remedy provided herein. If APPGENIE fails to complete and
deliver the Software, and Buyer would like to keep the work then completed, Buyer will
be entitled only to a partial refund based on the phase completed.
C. APPGENIE warrants that the Software will not infringe upon any copyright, patent,
trade secret or other intellectual property interest of any third party. APPGENIE will
indemnify and hold Buyer harmless from and against any infringement claims, losses,
suits and damages arising from the Software including, but not limited to, attorney's
fees and costs, and shall promptly following any bona-fide claim of infringement correct
the Software so as not to be infringing, or secure at its own expense the right of Buyer
to use the Software without infringement. For APPGENIE ’s indemnification obligation
pursuant to this Section to arise, Buyer must give APPGENIE notice of any such
infringement allegation and give APPGENIE the opportunity to take over and direct the
defense against any such allegations. Buyer must get APPGENIE ’s approval of any
settlement of any such infringement allegations.
11. Terms and Termination
A. This Agreement shall commence when both parties have signed the document and buyer has
paid the project mobilization fee and continue until all of the obligations of the
parties have been performed or until earlier terminated as provided herein.
B. APPGENIE ’s appointment as a contractor pursuant to this Agreement and this Agreement
shall terminate upon the occurrence of either of the following events:
- A party defaults on any material obligation owed to the other party pursuant to this
Agreement, and the default is not cured following at least forty-five (45) days
written notice to the defaulting party.
- Either party becomes bankrupt or insolvent, or bankruptcy or insolvency proceedings
are instituted against a party and the proceeding is not dismissed within forty-five
(45) days after commencement.
- Section 2, Ownership of Software, and Section 7, Confidentiality, shall survive the
expiration or termination of this Agreement.
12. Entirety of Agreement
In case of cancellation by Buyer without good cause no amount will be refunded, and
APPGENIE may, at its discretion, consider this Agreement terminated, null and void.
This is the full and complete agreement of the parties with respect to the subject matter
of it, which supersedes any and all previous oral and written representations. No
changes to this Agreement shall be effective unless made in writing and signed by the
parties hereto.
13. Headings in this Agreement
The headings in this Agreement are for convenience only, confirm no rights or obligations
in either party, and do not alter any terms of this Agreement.
14. Severability
If any term of this Agreement is held by a court of competent jurisdiction to be invalid
or unenforceable, then this Agreement, including all of the remaining terms, will remain
in full force and effect as if such invalid or unenforceable term had never been
included.
15. Dispute Resolution
The parties must submit any and all disputes between them arising pursuant to or from
this Agreement to mediation. If the dispute cannot be resolved in mediation, any
remaining dispute must be submitted to mandatory arbitration to be administered by the
American Arbitration Association and its Commercial Arbitration Rules with the resulting
award to be confirmed by a court of competent jurisdiction. The Arbitration is to be
conducted in the English language in New York, NY (USA) and New York law shall apply
without regard to conflict of laws principles.
16. Eligibility of Refund
APPGENIE takes every project very seriously and ensures that the same is handled in a
professional manner and the client gets the result as per the terms and conditions of
the proposal. However, if the client is not happy with the outcome and has gone through
the dispute resolution process, we do consider refund requests as per the following
schedule which clearly lists the services and our refund policy related to each service.
17. Processing of Refunds
Refunds will be processed and mailed within 5 business days of the cancellation date and
will be made using the same method of payment as the original (refund by check or refund
to credit card).
