Please read these Terms of Service (the “Terms”) carefully. These Terms govern your access to and use of the website located at apex.sh (the “Site”) and the hosted products and services available via the Site, including the proprietary software “Apex Ping”, that are offered by Apex Software Inc. (“Apex”). The Site and the hosted products and services are referred to collectively throughout these Terms as the “Services”.
YOU AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE SERVICES, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH APEX. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES.
Wherever used in these Terms, “you”, “your” or similar terms means the person or legal entity accessing or using the Services. If you are accessing or using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.
Apex reserves the right to modify, supplement or replace these Terms, effective upon posting the changes on the Site or notifying you otherwise. Your continued use of the Services following the posting of changes to these Terms or receipt of notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Services.
1.1. Subscription. Subject to the terms of this Agreement, Apex shall use commercially reasonable efforts to provide you with the Services. The Services are available on a free or paid subscription basis. You must select a subscription plan at the time of registration detailing the Services to be provided by Apex, along with any applicable fees and payment terms (the “Subscription Plan”).
1.2. Registration. In order to access and use the Services, you must register for a user account by providing log-in information for a user account with a third party service provider accepted by Apex. You agree that Apex may access and retain your user account information with the third party service provider for the purposes of managing your user account with Apex and providing you with the Services.
1.3. Updates and Functionalities. You acknowledge that from time to time Apex may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content), and you agree to such changes. Without limiting the foregoing, Apex may, in its sole discretion, change the functionality associated with certain Subscription Plans, including but not limited to discontinuing all or part of the Services offered on a free subscription basis.
1.4. Permitted Uses. You are responsible for your own conduct when using the Services. You agree that you will only use the Services for lawful purposes and in a manner consistent with these Terms and any applicable rules, policies and guidelines established by Apex in respect of the Services. Misuse or unauthorized use of the Services and its related systems or networks, or of any information or material available through the Services is strictly prohibited and Apex reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend or terminate access by any user who is using, or who Apex reasonably believes is using, the Services in violation of these Terms.
1.5. Prohibited Uses. Without limiting Section 1.4, you agree not to use the Services to: (i) engage in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol; (ii) communicate, transmit, upload or post information that is inaccurate, incomplete, misleading, false or libellous; (iii) communicate, transmit, upload or post information or material that infringes intellectual property rights, privacy rights, rights of publicity or any other rights of any person; (iv) communicate, transmit, upload or post material that is obscene, vulgar, pornographic, abusive, defamatory, threatening, racist, sexist or otherwise objectionable; (v) attempt to interfere with or gain unauthorized access to the Services or its related systems or networks; (vi) advertise, solicit or otherwise promote the sale or other distribution of products or services, including products or services that compete with those offered through the Services, without Apex’s consent; (vii) use or attempt to use the Services to gain unauthorized access to any person’s data or network; or (vii) otherwise use the Services in a manner that could, in the opinion of Apex, adversely affect the ability of other users to use the Services or the Internet, including post or transmit information or data containing worms, viruses, Trojan horses or other disruptive components.
1.6. Third Party Products and Services. The Services may enable you to access, interact with or purchase products or services provided by third parties, including from third party websites or applications linked to or accessible through the Services (“Third Party Services”). Apex provides access to Third Party Services as a convenience only, and such access does not imply any warranties, representations, endorsements, approvals or verification by Apex of such Third Party Services. You acknowledge that the use of Third Party Services may be subject to the terms and conditions of such Third Party Services, and that any contract entered into or transaction completed through Third Party Services is between only you and the relevant third party.
2.1. Apex Services. Apex is the owner of the Services and all intellectual property rights related to the Services. All rights, title, and interest in and to the Services not expressly granted under these Terms are reserved by Apex. Without limiting the generality of the forgoing, Apex owns the trademarks and design marks, trade dress, domain names, service names, logos and associated designs (“Trademarks”) used in connection with the Services and any unauthorized use of the Trademarks is strictly prohibited.
2.2. Feedback. If you submit any suggestions, comments or other feedback (“Feedback“) to Apex regarding the Services, you agree that Apex shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited and fully paid-up right and license to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its products, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes. For greater certainty, you agree that Apex may use and exploit any Feedback in any way at our discretion, without compensation or obligation to you or to any other party.
2.3. Subscriber Content. You retain ownership of all information and content (including text, images, video, audio and other material) that you upload, publish, transmit, link to or otherwise make available through the Services (“Subscriber Content”). You grant to Apex a non-exclusive, royalty-free, perpetual, irrevocable, transferable, world-wide license, with the right to sublicense, to access, use, reproduce, modify, publish, translate, create derivative works from, distribute, disseminate, perform, transmit, display, store, index and archive Subscriber Content or to incorporate it in other works in any form, media, or technology, for the full term of any rights that may exist in such Subscriber Content, for any purpose and without compensation or obligation to you or any other party. You are solely responsible for Subscriber Content that you upload, publish, transmit, link to or otherwise make available through the Services. If you are posting Subscriber Content belonging to or generated by or on behalf of a third party, you warrant that you are authorized to act on behalf of that third party and to bind them to these Terms.
3.1. Billing. If you are purchasing a paid subscription for the Services, you must provide Apex with a valid credit card or other form of payment instrument approved by Apex to pay for the subscription fee set out in the Subscription Plan. You agree that Apex has permission to retain and/or share with financial institutions and payment processing firms your submitted payment information in order to process your purchase. You agree that Apex may bill your credit card or other form of payment instrument approved by Apex in advance and on a periodic basis in accordance with the Subscription Plan.
3.2. Account Changes and Cancellation. You may cancel, upgrade or downgrade your subscription at any time. (For details on the account change and cancellation procedure, please refer to the instructions available at https://apex.sh/docs/ping/. Following an upgrade or downgrade of your subscription, you will be charged or issued a credit, as applicable, for the difference in fees between your old and new subscriptions prorated for the number of days remaining in the subscription period. Following the cancellation of your subscription, the service will remain active for number of days remaining in the subscription period.
3.3. Late Payment. If any amounts due under these Terms are not received by Apex by the due date set out in the Subscription Plan, Apex may: i) charge interest on such amounts at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date payment was due until the date paid, and/or ii) suspend your access to the Services or cancel your subscription.
4.1. Support for the Services is available via the website https://apex.sh/docs/ping/ (or any subsequent website designated by Apex), and via firstname.lastname@example.org.
6.1. “Confidential Information” means any information or materials of Apex that is reasonably considered in the circumstances to be confidential or proprietary, including, but not limited to, trade secrets, hardware, software (source code and object code), specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, pricing policies and price lists, and financial information or other business and/or technical information and materials, whether in oral, written, electronic, graphic or machine-readable form. You agree to keep strictly confidential the Confidential Information and to not use or disclose the Confidential Information for any purpose other than as required for your use of the Services.
7.1. Term. These Terms shall commence on the date on which you first register for, access or use the Services and shall continue until your subscription is cancelled.
7.2. Termination. You may cancel your subscription in accordance with Section 3.3, above, and discontinue your use of the Services at any time. If you violate these Terms or any applicable rules, policies or guidelines established by Apex in respect of the Services, or create any legal risk for Apex through your use of the Services, Apex reserves the right, in its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend your account or cancel your subscription.
7.3. Effects of Termination. Upon termination of these Terms for any reason: i) you shall immediately discontinue your use of the Services, ii) any rights and licenses granted to you under these Terms will terminate, and iii) you shall immediately pay to Apex any amounts that are outstanding.
7.4. Survival. The following will survive termination of these Terms: Sections 2, 3.2, 3.4, 5, 6, 7.3. 7.4, 8, 9, 10, 11.1, 11.2, and 11.3.
8.1. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APEX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APEX EXPRESSLY DISCLAIMS THAT: (I) THE SERVICES WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED. IN ADDITION, APEX EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO: (I) ANY CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY SUBSCRIBER CONTENT; (II) ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY THIRD PARTIES IN ASSOCIATION OR CONNECTION WITH THE SERVICES, INCLUDING ANY THIRD PARTY SERVICES; (III) ANY HACKING OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES; AND (IV) ANY DAMAGE TO YOUR SOFTWARE, COMPUTER SYSTEM OR OTHER PROPERTY CAUSED BY VIRUSES OR OTHER MALICIOUS CODE AS A RESULT OF YOUR ACCESS OR USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
9.1. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER BY STATUTE, CONTRACT, TORT OR UNDER ANY OTHER FORM OF LIABILITY, EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
9.2. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APEX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF APEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO: (I) THE USE OR THE INABILITY TO USE OR ACCESS THE SERVICES, INCLUDING ANY CONTENT, PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICES; (II) ANY ERRORS OR OMISSIONS IN THE SERVICES OR ANY CONTENT; (III) THE SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE SERVICES; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SITE OR FAILURE OF OUR SYSTEMS; (V) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (VI) UNAUTHORIZED ACCESS TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION; (VII) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING THE SITE; (VIII) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; OR (IX) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER PARTY’S USE OF THE SITE OR THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SERVICES, OR WITH ANYTHING RELATED TO THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
9.3. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF APEX WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
10.1. You agree to defend, indemnify and hold us, our affiliates and licensors, and each of their respective officers, partners, directors, employees and agents, harmless from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (i) your access to or use of the Services or any Subscriber Content; (ii) your violation of these Terms; or (iii) your violation of any third party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality. You will use your best efforts to cooperate with Apex in the defense of any claim. Apex reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
11.1. Governing Law. You agree that these Terms, and your use of the Services, are governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable therein (excluding conflicts and choice of laws principles). Any contract formed through the use of the Services will be deemed to have been formed and executed within the Province of British Columbia, Canada. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
(a) Means of Resolution. You and Apex agree that any disputes arising under these terms or otherwise in connection with your use of the Site will be resolved through arbitration under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, as amended from time to time. Arbitration will be held in Vancouver, BC, Canada, and conducted in the English language. Notwithstanding the foregoing, you agree that: (i) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and (ii) Apex may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.
(b) Class Waiver. You acknowledge and agree that you and Apex are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Apex otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable, then the entirety of this Section 11.2 will be deemed void.
11.3. Jurisdiction and Venue. If Section 11.2 is deemed void or is otherwise inapplicable, all disputes under these Terms will be resolved by a court of competent jurisdiction located in Vancouver, British Columbia, Canada, provided that the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief.
11.4. Force Majeure. Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from any cause beyond the reasonable control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable.
11.5. Assignment. You may not assign any of your rights or obligations under these Terms without our prior written consent. Apex may freely assign our rights and obligations under these Terms, either in part or in full, without notice to you.
11.6. Notice. Apex may communicate with you about the Services or these Terms, including any changes to these Terms, by email or by posting notices on the Site. Unless expressly prohibited by law, you consent to receive communications relating to the Services or our business relationship from Apex electronically, and agree that all notices, waivers, agreements, disclosures and other communications satisfy any legal requirements that such communications be in writing. You may provide legal notice to Apex at #405 787 Tyee Rd, Victoria BC, V9A 7R5.
11.7. Nature of Relationship. Nothing in these Terms or from your use of the Services will create or be deemed to create any partnership, joint venture, agency, franchise or other business relationship between you and Apex, even if your use of the Services is for a commercial purpose which has been authorized by us. You and Apex will, at all times, be and remain independent contractors.
11.8. Severability. The provisions of these Terms are severable. If any individual provision is held to be invalid, unenforceable or contrary to applicable law, such provision shall be construed, limited, altered or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict with applicable law while endeavoring to preserve the intention of these Terms, and all other provisions shall remain in full force and effect.
11.10. Waiver. The failure by Apex to exercise or enforce any right or remedy under these Terms will not constitute a waiver of such right or remedy.
11.11. Contact. If you wish to contact Apex with any questions, comments or concerns regarding the Services or these Terms, please contact email@example.com.