Effective Date: August 6, 2024

Welcome to Appabul! Appabul Inc., and our affiliates and agents (collectively, “Appabul” or “us” or “we” or “our”) provide and operate one (1) or more websites, including the website at www.Appabul.com (collectively, “Website”) and content and application management software-as-a-service platform (“Appabul Platform”), which provides merchants with tools and integrations designed to transform their Shopify or other e-commerce platform online stores into iPhone or Android mobile applications (each, an “Merchant App”).PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE” or “TERMS”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF Appabul AND THE INFORMATION ON IT ARE CONTROLLED BY Appabul. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND Appabul PLATFORM AND APPLY TO ALL USERS VISITING OR ACCESSING THE WEBSITE OR Appabul PLATFORM IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR THE Appabul PLATFORM, AND ANY PROFESSIONAL SERVICES (AS DEFINED BELOW) MADE AVAILABLE BY Appabul PURSUANT TO AN ORDER FORM. THE TERMS OF USE ARE ENTERED INTO BETWEEN Appabul AND THE ENTITY OR ORGANIZATION THAT (I) HAS EXECUTED AN ORDER FORM THAT REFERENCES AND INCORPORATES THE TERMS OF USE BY REFERENCE OR (II) IS NAMED AS THE USER AS PART OF THE REGISTRATION PROCESS. AN “ORDER FORM” MEANS ANY WRITTEN ORDER FORM OR OTHER ORDERING DOCUMENT SIGNED BY Appabul AND THE ENTITY TO BE BOUND. THE TERMS OF USE (INCLUDING ANY SUPPLEMENTAL TERMS AS DEFINED BELOW) AND ORDER FORM CONSTITUTE THE COMPLETE UNDERSTANDING BETWEEN THE PARTIES ON THE SUBJECT MATTER HEREOF AND IS EFFECTIVE ON THE EARLIER OF (A) THE DATE THAT THE ORDER FORM IS FULLY EXECUTED BY THE PARTIES) OR (B) YOUR INITIAL ACCESS TO AND USE OF THE WEBSITE, Appabul PLATFORM, OR SERVICES OR (C) YOUR CLICKING ON THE “I AGREE” BUTTON WHEN COMPLETING THE REGISTRATION PROCESS.  BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING THE Appabul PLATFORM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH Appabul, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY OR ORGANIZATION YOU HAVE NAMED AS THE USER OR THAT IS NAMED AS THE CUSTOMER ON THE ORDER FORM, AND TO BIND THAT ENTITY OR ORGANIZATION TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE OR Appabul PLATFORM. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
Your use of, and participation in, certain Services (including Custom Blocks) may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. Any such terms and conditions will be identified when you first access or use the applicable Service, and by accessing or using such Service, you agree to be bound by and comply with such terms and conditions included in the Supplemental Terms.
If the terms herein are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the applicable Service for which the Supplemental Terms have been provided.  Each of the Supplemental Terms is incorporated into this Terms of Use.
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1. Use of the Services and Appabul Properties.
The Appabul Platform, the Website, the Professional Services, and other Services, as well as the information and Content available on the Website and in the Appabul Platform (including the Appabul Tools), (collectively, the “Appabul Properties”) are protected by copyright laws throughout the world.
1.1. Description of Services.
Appabul makes available the Website, the Appabul Platform, including tools, designs, templates, and layouts, to create and publish Merchant Apps through the Apple App Store or Google Play Store (“Appabul Tools”), the Professional Services (if any), and the information, Content, and resources made available through all of the foregoing (collectively, the “Services”) in accordance with the terms of this Terms of Use and the applicable Order Form(s). The Services are collectively designed to help you build, design, and launch Merchant Apps for your Shopify store(s).
1.2. Appabul License Grant.
Subject to your compliance with the Terms of Use (including any additional restrictions set forth on any applicable Order Form), Appabul grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to (a) access and use the features and functionality of the Appabul Properties for the purposes of creating and managing your Merchant Apps and (b) develop and manage your Merchant Apps.
1.3. Updates.
You understand that Appabul Properties are evolving. As a result, Appabul may require you to accept updates to Appabul Properties that you have installed on your computer or mobile device.
1.4. Professional Services. From time to time, Appabul may perform certain.
implementation or other professional services (“Professional Services”), as agreed upon by the parties under an Order Form. Appabul will provide such Professional Services in accordance with the terms set forth herein and in the Order Form, subject to your payment of the applicable fees, as set forth on the Order Form.
2. Registration.
2.1. Registering Your Account.
In order to access certain features of Appabul Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website or Appabul Platform (“Account”), and has a valid Shopify or other compatible third-party e-commerce platform account through which you may connect to the Website or Appabul Platform (each such account, a “Third-Party Account”).
2.2. Connecting your Third-Party Account.
In order to complete your implementation with Appabul and the Appabul Properties, you will need to connect your Third-Party Account by providing Appabul with access to your developer account within such Third-Party Account. By completing this implementation step,  you are allowing Appabul to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant Appabul access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Appabul to pay any fees or making Appabul subject to any usage limitations imposed by such third-party service providers. By granting Appabul access to any Third-Party Accounts, you understand that Appabul may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Appabul Properties that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through Appabul Properties and/or your Merchant Apps, via your Account. Unless otherwise specified in the Terms, all Third-Party Account Content shall be considered to be Your Content (as defined below) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Appabul Properties and/or your Merchant Apps. Please note that if a Third-Party Account or associated service becomes unavailable or Appabul’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through Appabul Properties (including through your Merchant App). PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND Appabul DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Appabul makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Appabul is not responsible for any Third-Party Account Content.
2.3. Merchant Apps.
You will be the designated owner of your Merchant Apps within the applicable App Store and you will be responsible for providing the necessary terms of use and privacy policy to your end users of the Merchant App(s) and fulfilling the applicable legal requirements (including with respect to auto-renewal subscription laws and the Digital Millennium Copyright Act) and other requirements of the applicable App Store in connection therewith, as well as all the activities occurring through such Merchant Apps. Except to the extent of the foregoing, and notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in any Merchant App (other than with respect to Your Content), and you further acknowledge and agree that, except with respect to Your Content, all rights in and to and to the Merchant Apps are and shall forever be owned by and inure to the benefit of Appabul. However, should you develop your own mobile application to work independently of the Appabul Properties (“Independent App”), you shall retain all rights and ownership or other property interest, including but not limited to, any intellectual property interest, in and to such Independent App.
2.4. Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to Appabul Properties, including but not limited to, a mobile device that is suitable to connect with and use Appabul Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Appabul Properties.
3. Responsibility for Content.
3.1. Types of Content.
You acknowledge that all files, materials, data, text, templates, audio, video, images or other content, including Appabul Properties (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Appabul, are entirely responsible for all Content that you or your end user customers upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Appabul Properties (“Your Content”), and that you and other users of Appabul Properties (including your Merchant Apps), and not Appabul, are similarly responsible for all Content they Make Available through Appabul Properties, including your Merchant Apps (“User Content”).
3.2. No Obligation to Pre-Screen Content.
You acknowledge that Appabul has no obligation to pre-screen Content (including, but not limited to, User Content), although Appabul reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Appabul pre-screens, refuses or removes any Content, you acknowledge that Appabul will do so for Appabul’s benefit, not yours. Without limiting the foregoing, Appabul shall have the right to remove any Content that violates the Terms of Use or is otherwise objectionable.
3.3. Storage.
Unless expressly agreed to by Appabul in writing elsewhere, Appabul has no obligation to store any of Your Content that you Make Available on Appabul Properties. Appabul has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Appabul Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Appabul retains the right to create reasonable limits on Appabul’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Appabul in its sole discretion.
4. Ownership.
4.1. Appabul Properties.
Except with respect to Your Content and User Content, you agree that Appabul and its suppliers own all rights, title and interest in Appabul Properties (including but not limited to, any Merchant Apps, computer code, themes, objects, users, usernames, stories, dialogue, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, chat transcripts, user profile information, recordings of users using a Merchant App, Appabul Platform, and Appabul software clients and server software), and all deliverables, work product, and other results and proceeds of Appabul’s Professional Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Appabul Properties.
4.2. Trademarks.
The Appabul name and logos, includingand other related graphics, logos, service marks and trade names used on or in connection with Appabul Properties or in connection with the Services are the trademarks of Appabul and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Appabul Properties are the property of their respective owners.
4.3. Other Content.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Appabul Properties.
4.4. Your Content.
Appabul does not claim ownership of Your Content. However, when you post or publish Your Content on or in Appabul Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5. License to Your Content.
Subject to any applicable account settings that you select, you grant Appabul a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating, providing, and only on a de-identified, aggregated basis, improving, Appabul Properties. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Appabul Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Appabul, are responsible for all of Your Content that you Make Available on or in Appabul Properties.
4.6. Feedback.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Appabul through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Appabul has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Appabul a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Appabul Properties.
5. Restricted Conduct.
As a condition of your use of the Appabul Properties, you agree not to use Appabul Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Appabul Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Appabul’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Appabul; (vi) interferes with or attempt to interfere with the proper functioning of Appabul Properties or uses Appabul Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Appabul Properties, including but not limited to violating or attempting to violate any security features of Appabul Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Appabul Properties, introducing viruses, worms, or similar harmful code into Appabul Properties, or interfering or attempting to interfere with use of Appabul Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Appabul Properties.
Further, you will not, and will not permit any other party (including your customers) to: (a) allow any third party to access the Appabul Properties, except as expressly allowed herein; (b) modify, adapt, alter or translate the Appabul Properties; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Appabul Properties for the benefit of any unauthorized third party, except as contemplated herein; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Appabul Properties, except as permitted by law; (e) interfere in any manner with the operation of the Appabul Properties or the hardware and network used to operate the Appabul Properties; (f) modify, copy or make derivative works based on any part of the Appabul Properties; (g) access or use the Appabul Properties to build a similar or competitive product or service; (h) attempt to access the Appabul Properties through any unapproved interface; or (i) otherwise use the Appabul Properties in any manner that exceeds the scope of use permitted under the Terms of Use or in a manner inconsistent with applicable law or this Terms of Use.
6. Monitoring.
Appabul may, but is not obligated to, monitor or review Appabul Properties and Content at any time. Without limiting the foregoing, Appabul shall have the right, in its sole discretion, to (a) remove any of Your Content for any reason (or no reason), including if such Content violates the Terms of Use, the rights of any third party, or any applicable laws, rules, or regulations and/or (b) suspend and/or terminate your Account or any Merchant App.
7. Interactions with Other Users.
7.1. User Responsibility.
You are solely responsible for your interactions with other users and any other parties with whom you interact through the Services or your Merchant Apps, including your customers; provided, however, that Appabul reserves the right, but has no obligation, to intercede in such disputes. You agree that Appabul will not be responsible for any liability incurred as the result of such interactions.
7.2. Content Provided by Other Users.
Appabul Properties may contain User Content provided by other users. Appabul is not responsible for and does not control User Content. Appabul has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
8. Third-Party Services.
8.1. Third-Party Websites, Appabul Platforms & Ads.
Appabul Properties may provide access to and/or contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Appabul Platforms”) and advertisements for third parties ( “Third-Party Ads”). When you click on a link to or otherwise access a Third-Party Website, Third-Party Appabul Platform or Third-Party Ad, we will not warn you that you have left Appabul Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Appabul Platforms and Third-Party Ads are not under the control of Appabul. Appabul is not responsible for any Third-Party Websites, Third-Party Appabul Platforms or Third-Party Ads. Appabul provides these Third-Party Websites, Third-Party Appabul Platforms and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Appabul Platforms or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Appabul Platforms and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Appabul Platforms, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2. App Stores.
You acknowledge and agree that the availability of the Appabul Platform, the Services, and any Merchant Apps, is dependent on the third party from whom you received the Appabul Platform or Merchant App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms of Use are between you and Appabul and not with the App Store. Appabul, not the App Store, is solely responsible for Appabul Properties, including the Appabul Platform, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Appabul Platform, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Appabul Properties, including the Appabul Platform or any Merchant App. You agree to comply with, and your license to use the Appabul Platform and any Merchant Apps is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Appabul Properties, including the Appabul Platform. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
9. Fees and Purchase Terms.
9.1. General Purpose of Terms: Sale of Service, not Software.
The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Appabul’s software, and, furthermore, any use of Appabul’s software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
9.2. Payment.
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Except as otherwise set forth on an Order Form, all invoices will be billed to your Third-Party Account and will be payable within thirty (30) days from issuance thereof.
9.3. Service Subscription Fees.
You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your subscription package (each, a “Service Commencement Date”). Except as set forth in the Terms of Use, all fees for the Services are non-refundable. No contract will exist between you and Appabul for the Services until Appabul executes an Order Form or accepts an order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
9.4. Professional Services Fees.
Fees for Professional Services will be set forth on the Order Form. Except as otherwise set forth on the Order Form, the fees you pay will be a flat rate based on an advance purchase of a specified number of Professional Services hours. In the event you desire Professional Services beyond such specified number of hours, you will be required to purchase an additional Professional Services package. All such fees will be billed and payable in advance, at the time of purchase. Each month, Appabul will provide you with an email summary of the Professional Services performed in the prior month (if any), along with the corresponding hours consumed of the Professional Services package purchased. You will not be entitled to a refund of any unused hours.
9.5. Taxes.
Appabul’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms of Use are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Appabul, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Appabul for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Appabul is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.6. Automatic Renewal.
Your subscription will continue indefinitely until terminated in accordance with the Terms of Use. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Appabul’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Appabul that your subscription will be automatically renewed, you will have thirty days from the date of the Appabul notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact help@Appabul.co, contact your Appabul Account Managers. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, except as otherwise set forth on an Order Form, you authorize Appabul to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Appabul does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Appabul may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.7. Disputes.
You must notify us in writing within thirty (30) days after receiving your credit card statement or invoice (as applicable), if you dispute any of our charges on that statement or invoice or such dispute will be deemed waived. Billing disputes should be notified to the following address: team@Appabul.co.
10. Indemnification.
You agree to indemnify and hold Appabul, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Appabul Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your violation of the Terms; (c) your violation of any rights of another party, including any of your customers; (d) your violation of any applicable laws, rules or regulations applicable to you and the provision of your Merchant Apps (including with respect to auto-renewal subscription laws and the Digital Millennium Copyright Act); and (e) your products or services made available through the Merchant Apps. Appabul reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Appabul in asserting any available defenses. This provision does not require you to indemnify any of the Appabul Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Appabul Properties.
11. Disclaimer of Warranties and Conditions.
11.1. As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF Appabul PROPERTIES IS AT YOUR SOLE RISK, AND Appabul PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. Appabul PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES OR APPS.
11.1.1. Appabul PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) Appabul PROPERTIES OR ANY MERCHANT APPS WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF Appabul PROPERTIES OR MERCHANT APPS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF Appabul PROPERTIES OR APPS WILL BE ACCURATE OR RELIABLE.
11.1.2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH Appabul PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS Appabul PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
11.1.3. THE SERVICES AND MERCHANT APPS MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Appabul MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
11.1.4. From time to time, Appabul may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Appabul’s sole discretion. The provisions of this section apply with full force to such features or tools.
11.2. No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT Appabul PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Appabul PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE SERVICES, INCLUDING ANY THIRD-PARTY ACCOUNT PROVIDER OR ANY OTHER OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3. No Liability for Conduct of Other Users or Customers.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF Appabul PROPERTIES OR ANY USERS OF YOUR MERCHANT APPS, INCLUDING YOUR CUSTOMERS. YOU UNDERSTAND THAT Appabul DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF Appabul PROPERTIES.
12. Limitation of Liability.
12.1. Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Appabul PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH Appabul PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT Appabul HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS (INCLUDING THE SERVICES AND THE APPS), OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF Appabul PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE Appabul PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH Appabul PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON Appabul PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO Appabul PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A Appabul PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A Appabul PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A Appabul PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2. Cap on Liability.
UNDER NO CIRCUMSTANCES WILL Appabul PARTIES BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO Appabul BY YOU FOR SERVICES DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A Appabul PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A Appabul PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A Appabul PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3. User Content.
EXCEPT FOR Appabul’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE Appabul’S PRIVACY POLICY, Appabul ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4. Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Appabul AND YOU.
13. Remedies.
13.1. Violations.
If Appabul becomes aware of any possible violations by you of the Terms of Use, Appabul reserves the right to investigate such violations. If, as a result of the investigation, Appabul believes that criminal activity has occurred, Appabul reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Appabul is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Appabul Properties, including Your Content, in Appabul’s possession in connection with your use of Appabul Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Appabul, its Users or the public, and all enforcement or other government officials, as Appabul in its sole discretion believes to be necessary or appropriate.
13.2. Breach.
In the event that Appabul determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Appabul Properties, Appabul reserves the right to:
13.2.1. Warn you via e-mail (to any e-mail address you have provided to Appabul) that you have violated the Terms;
13.2.2. Delete any of Your Content provided by you or your agent(s) to Appabul Properties;
13.2.3. Discontinue your registration(s) with the any of Appabul Properties, including any Services or any Appabul community;
13.2.4. Discontinue your subscription to any Services;
13.2.5. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
13.2.6. Pursue any other action which Appabul deems to be appropriate.
14. Term and Termination.
14.1. Term.
The Terms of Use commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Appabul Properties, unless terminated earlier in accordance with the Terms of Use.
14.2. Prior Use.
Notwithstanding the foregoing, if you used Appabul Properties prior to the date you accepted the Terms of Use, you hereby acknowledge and agree that the Terms of Use commenced on the date you first used Appabul Properties (whichever is earlier) and will remain in full force and effect while you use Appabul Properties, unless earlier terminated in accordance with the Terms of Use.
14.3. Termination of Services by Appabul.
If timely payment is not made in accordance with the Terms of Use, if you have materially breached any provision of the Terms of Use, or if Appabul is required to do so by law (e.g., where the provision of the Website, the Appabul Platform, the Merchant Apps, or the Services is, or becomes, unlawful), Appabul has the right to, immediately and without notice, suspend or terminate any Services provided to you, including any Merchant Apps. You agree that all terminations for cause shall be made in Appabul’s sole discretion and that Appabul shall not be liable to you or any third party for any termination of your Account.
14.4. Termination of Services by You.
If you want to terminate the Services provided by Appabul, you may do so by (a) notifying Appabul at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Appabul’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION AS ALLOWED FOR UNDER THESE TERMS. You will not receive a refund of any fees or other amounts paid in the event you close your Account or cancel your subscription or otherwise terminate this Agreement.
14.5. Effect of Termination.
Termination of the Services includes removal of access to the Services, including any Merchant Apps developed through the Services, and barring of further use of the Service or Merchant Apps. Termination of all Services also includes deletion of your information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Appabul will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.6. No Subsequent Registration.
If your registration(s) with or ability to access Appabul Properties, or any other Appabul community is discontinued by Appabul due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Appabul Properties or any Appabul community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Appabul Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Appabul reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
15. International Users.
Appabul Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Appabul intends to announce such Services or Content in your country. Appabul Properties are controlled and offered by Appabul from its facilities in the United States of America. Appabul makes no representations that Appabul Properties are appropriate or available for use in other locations. Those who access or use Appabul Properties from other countries do so at their own volition and are responsible for compliance with local law.
16. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Appabul and limits the manner in which you can seek relief from us.
16.1. Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Appabul, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Appabul may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. IF YOU AGREE TO ARBITRATION WITH Appabul, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST Appabul ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE Appabul IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
16.2. Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at Corporation Service Company, Attention: Appabul, Inc., 251 Little Falls Drive, Wilmington, Delaware 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Appabul will pay them for you. In addition, Appabul will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Appabul will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3. Authority of Arbitrator.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Appabul. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4. Waiver of Jury Trial.
YOU AND Appabul HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Appabul are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5. Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 17.5.
16.6. Severability.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.7. Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Appabul.
16.8. Modification.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Appabul makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Appabul.
17. General Provisions.
17.1. Electronic Communications.
The communications between you and Appabul use electronic means, whether you visit Appabul Properties or send Appabul e-mails, or whether Appabul posts notices on Appabul Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Appabul in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Appabul provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2. Assignment.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Appabul’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3. Force Majeure.
Appabul shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4. Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to Appabul Properties, please contact us at: team@Appabul.co. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.5. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Appabul agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, California.
17.6. Governing Law.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
17.7. Notice.
Where Appabul requires that you provide an e-mail address, you are responsible for providing Appabul with your most current e-mail address. In the event that the last e-mail address you provided to Appabul is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Appabul’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Appabul at the following address: 1417 6th St, Floor 2, Santa Monica, CA 90401. Such notice shall be deemed given when received by Appabul by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.8. Waiver.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.9. Severability.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.10. Export Control.
You may not use, export, import, or transfer Appabul Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Appabul Properties, and any other applicable laws. In particular, but without limitation, Appabul Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Appabul Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Appabul Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Appabul are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Appabul products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.11. Accessing and Download the Appabul Platform from iTunes.
The following applies to any App Store Sourced Appabul Platform accessed through or downloaded from the Apple App Store:
17.11.1. You acknowledge and agree that (i) the Terms are concluded between you and Appabul only, and not Apple, and (ii) Appabul, not Apple, is solely responsible for the App Store Sourced Appabul Platform and content thereof. Your use of the App Store Sourced Appabul Platform must comply with the App Store Terms of Service.
17.11.2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Appabul Platform.
17.11.3. In the event of any failure of the App Store Sourced Appabul Platform to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Appabul Platform to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Appabul Platform. As between Appabul and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Appabul.
17.11.4. You and Appabul acknowledge that, as between Appabul and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Appabul Platform or your possession and use of the App Store Sourced Appabul Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Appabul Platform fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
17.11.5. You and Appabul acknowledge that, in the event of any third-party claim that the App Store Sourced Appabul Platform or your possession and use of that App Store Sourced Appabul Platform infringes that third party’s intellectual property rights, as between Appabul and Apple, Appabul, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
17.11.6. You and Appabul acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Appabul Platform, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Appabul Platform against you as a third-party beneficiary thereof.
17.11.7. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Appabul Platform.
17.12. Entire Agreement.
The Terms, together with the Order Form(s), are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. In the event of a conflict between these Terms and the Order Form, the Order Form shall govern, only to the extent of the conflict.