Last Updated: August 25, 2022
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
ACCEPTANCE OF THESE TERMS
PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY USING THE PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE PLATFORM.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity, its directors, officers, employees, and agents.
ADDITIONAL TERMS AND POLICIES
“Content” means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Pro Services requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform.
“Customer” means the person that submitted their contact information via form on the website or email.
“Platform” means all Apex websites, mobile or other applications, software, processes and any other services provided by or through.
“Pro Services” means the services listed, quoted, scheduled, offered or provided by Apex, or sought, scheduled or received by Customers, through the Platform.
ELIGIBILITY, CUSTOMER REPRESENTATIONS, WARRANTIES, AND USE OF THE PLATFORM
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
By registering or using the Platform to offer, post, or provide Pro Services, Customers represent and warrant that they, and the employees, agents, contractors, and subcontractors who may perform work for them, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their Pro Services and in relation to the specific job they are performing. Customers otherwise agree to comply with all applicable laws, including the Illinois Consumer Privacy Act, in their use of the Platform and any personal information obtained from the Platform.
Apex is not in the business of providing Pro Services. Customers understand and agree that by creating and maintaining an account on the Platform, they receive only the ability to use the Apex Platform to access persons interested in receiving Pro Services and related tools, including but not limited to the ability to message those persons or schedule appointments, that facilitate the provision of Pro Services. For example, Customer may use the Platform to intentionally interact with Customers regarding Pro Services. Customers understand and agree that using the Platform does not guarantee that anyone will engage them for Pro Services.
Customers understand and agree that they are customers of Apex, and are not Apex employees, joint venturers, partners, or agents. Customers acknowledge that they set or confirm their own prices, provide their own equipment, and determine their own work schedule. Apex does not control, and has no right to control, the services a Customer provides (including how the Customer provides such services) if the Customer is engaged by a Customer Member or any other person, except as specifically noted herein.
Apex, as permitted by applicable laws, obtains reports regarding Customers, which may include history of criminal convictions or sex offender registration, and we may limit, block, suspend, deactivate, or cancel a Customer’s account based on the results of such a check. As a Customer, you agree and authorize us to use your personal information, such as your full name and date of birth, to obtain such reports from Apex’s vendors.
YOUR LICENSE TO USE THE PLATFORM
Subject to your compliance with these Terms, Apex grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. The Platform and Collective Content are provided to you AS IS. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Apex or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to Apex a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform or Pro Services, or for any other purpose in our sole discretion, except that the contents of private messaging through the Platform will not be used by Apex in public advertising. In the interest of clarity, the license granted to Apex shall survive termination of the Platform or your Account. Apex does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to Apex the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Apex’s use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. While it has no obligation to do so, you agree that Apex may proofread, summarize or otherwise edit and/or withdraw your User Content, and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms.
Apex reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform or users, or for any other reason.
As a user of the Platform, you may not:
- Use another person’s Account, misrepresent yourself or Pro Services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate category or areas on the Platform;
- Use any automated system including but not limited to robots, spiders, offline readers, or scrapers to access the Platform for any purpose without Apex’s prior written approval; provided, however, that the operators of public search engines may use spiders or robots to copy materials from the Platform for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material (Apex reserves the right to revoke these exceptions either generally or in specific cases);
- In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate Platform information or Content including but not limited to, for use on a mirrored, competitive, or third-party site;
- Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
- Take any action that (a) may unreasonably encumber the Platform’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypasses measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm Apex or users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (g) circumvents or manipulates Fee (defined herein) structure, billing, or Fees owed;
- As a Customer, use the Platform in any manner that circumvents your obligation to pay Apex for access to services provided by the Platform;
- As a Customer, notwithstanding anything to the contrary contained in these Terms, “sell” any personally identifiable data (as that term is defined by the Illinois Consumer Privacy Act), including but not limited to information related to Customer Members;
- Collect, harvest, or publish any personally identifiable data including but not limited to names or other account information, from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms, including commercial solicitation purposes;
- Recruit, solicit, or contact in any form Customers or Customer Members for employment or any other use not specifically intended by the Platform;
- Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law;
- Violate any key Apex policiesthat govern your use of the Platform and our interactions with you and third parties;
- Advertise or solicit a Pro Service not related to or appropriate for the Platform including, but not limited to any Pro Service that (a) is not in supported categories or provides only products; (b) provides directories or referrals; (c) offers lending; (d) offers rental space; (e) promotes events (such as a party or professional convention); (f) competes with the business of Apex; (g) is based outside the United States; (h) promotes or offers Ponzi schemes, junk mail, spam, chain letters, pyramid schemes, affiliate marketing or unsolicited commercial content, discount cards, credit counseling, online surveys or contests, raffles, prizes, bonuses, games of chance or giveaways; or (i) offers a Pro Service not reasonably available to a Customer Member or other individual in that Customer Member or individual’s location;
- Submit User Content that damages the experience of any user including but not limited to (a) requests to download non-Apex mobile applications and/or links that direct the user to mirrored websites where the user must enter information that is redundant with what has already been entered on Apex, (b) offers to purchase a Pro Service or any other service outside of Apex, or (c) using a profile page or user name to promote services not offered on or through the Platform;
- Take any action that may undermine the efficacy or accuracy of reviews or ratings systems;
- Fail to perform Pro Services purchased from you as promised, unless the Customer Member or other individual fails to materially meet the terms of the mutually agreed-upon agreement for the Pro Services or refuses to pay, or a clear typographical error is made, or you cannot authenticate the Customer Members or other individual’s identity;
- Engage in fraudulent conduct including but not limited to offering to make money transfers with intent to request a refund of any portion of the payment or soliciting users to mail cash or use other payment methods prohibited by Apex;
- Sign up for, negotiate a price for, use, or otherwise solicit a Pro Service with no intention of following through with your use of or payment for the Pro Service;
- Agree to purchase a Pro Service when you do not meet a Customer’s requirements;
- Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform; and
- Attempt to indirectly undertake any of the foregoing.
APEX BUDGET, FEES, AND TAXES
Customers can pay Fees to Apex in order to receive certain services on the Platform, including but not limited to being matched with and receiving contacts from Customer Members or other individuals. As a Customer, Apex will automatically charge your stored payment method when those Customer Members or other individuals contact you. Fees for additional products or services, including ongoing products or services, will be presented to you before you use such products or services. In order to use Apex, you must have at least one valid payment method stored on file. As described more fully below, you may also be required to set a weekly spending limit or Budget (as defined below) for at least one service category (which may also apply to contacts in jobs related to your preferences). Except as otherwise described herein, all sales on Apex are final and non-refundable.
Budget for Customers. As a Customer, Apex may require you to set one or more weekly spending limits (“Budgets”) for how much you are willing to spend on certain Fees over a specific period (“Budget Period”). The types of leads or other Fees that count against your Budget will be disclosed to you at the time you set your Budget. You understand that Apex may charge your stored payment method in excess of your Budgets if such charges relate to Fees not covered by your budget, or if you otherwise give Apex permission to do so. You will not be charged the Budget amount upfront or automatically – your Budget is not a subscription. Rather, you will be charged Fees (as further described below) and the types of Fees covered by a Budget will not exceed such Budget without your permission. While Apex may provide an estimate for the number of customers who may contact you if you set a particular Budget for a particular Budget Period, you acknowledge and agree that any such estimate is not a guarantee, that Apex does not and cannot control any Customer Member or other individual’s interest in contacting or hiring you, and that actual results will vary.
We will identify the length of the Budget Period when you set your Budget. The length of the Budget Period will not change within a given Budget Period but may be changed for subsequent Budget Periods. If a Budget Period length changes, you can adjust your Budget. If you do not do so, Apex will automatically pro-rate your then-current Budget to the length of the new period. For example, if you indicate you are willing to spend $100 for a one-week Budget Period, the Budget Period shifts to two weeks, and you do not make changes manually, your Budget will automatically be adjusted to $200 for the two-week Budget Period.
Similarly, if Apex merges two or more categories of services for which you have set a Budget or changes your Budget structure to apply across all categories you offer services in, your Budget for the newly combined category or aggregated Budget, respectively, will be the sum of the Budgets for the two or more categories prior to the merger. You will be able to adjust how much you are willing to spend in the newly combined Budget for future Budget Periods. If Apex reverts any such combination, your original Budgets will be restored using your then current aggregate Budget and your pro rata distribution among categories existing immediately prior to such combination.
You can change your Budget for a Budget Period at any time, including in the middle of a Budget Period. If you adjust your Budget upward, the new Budget will take effect immediately. If you adjust your Budget downward, the new Budget will only take effect at the beginning of the next Budget Period. If you do not change your Budget in advance of a subsequent Budget Period, your Budget from the then-current Budget Period will automatically be used for that subsequent Budget Period, subject to the foregoing.
Timing of Charges for Customers on Apex. As a Customer using Apex, there are different points at which your payment method may be charged:
If You Lack Sufficient Purchasing History on Apex
If you are new to Apex or do not have a sufficient purchasing history on the Platform as determined in Apex’s sole and absolute discretion, your payment method may be charged each time you are contacted by a Customer Member or other individual and you do not have an adequate Apex balance to cover the cost of that contact.
If You Have a Sufficient Purchasing History On Apex
Once Apex determines, in its sole and absolute discretion, that you have sufficient purchasing history on Apex, Apex may charge your payment method periodically for the total Fees accrued when Customer Members or other individuals contact you. Specifically, Apex may charge your payment method each time (a) a specific time period has passed; and/or (b) within that time period, each time the total Fees accrued hit a certain dollar threshold. The frequency of charges may not match the Budget Period described above.
Apex may adjust both the specific time period and the dollar threshold that trigger charges in its sole and absolute discretion. Apex may also, in its sole and absolute discretion, revert to charging your payment method each time you are contacted by a Customer Member or other individual and you do not have an adequate Apex balance to cover the cost of that contact.
Default Payment Method. For ordinary charges of Customers, Apex will first attempt to charge the default payment method. In the event that Apex is unable to charge that payment method for any reason–including but not limited to exceeding a payment method’s credit limit, payment method cancellation, a payment method being out of date, or payment method details being incorrect–you agree that Apex may charge any other payment method associated with your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details in order to help prevent any interruption to the Pro Services. If Apex is unable to charge the default payment method, Apex will attempt to charge any other payment methods associated with your Account in the order in which they were most recently provided, used, or updated on the Platform, charging the most recently provided, used, or updated valid payment method first.
Penalty Fees for All Members. Apex may also charge penalty Fees for fraud, misconduct or other violations of these Terms, as determined in our sole discretion.
You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account. Charges shall be made to the payment method designated at the time you accrue a Fee. If you do not pay on time or if Apex cannot charge a payment method for any reason, Apex reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. If any Fee is not paid in a timely manner, or we are unable to process your transaction using the payment method provided, we reserve the right to terminate or suspend your Account.
You explicitly agree that all communication in relation to delinquent accounts or Fees due will be made by electronic mail or by phone. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. You agree to keep your contact information, including, but not limited to, email address and phone number current. Such communication may be made by Apex or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on any Account, you agree that Apex may charge such unpaid Fees to any payment method or otherwise bill you for such unpaid Fees.
Taxes. Payments required by these Terms may be stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Certain jurisdictions, however, may require us to collect Taxes from you in connection with the purchase of, payment for, access to, or use of the Pro Services, and you shall be responsible for and bear Taxes associated with the purchase of, payment for, access to, or use of the Pro Services. Charges are inclusive of applicable Taxes where required by law. You hereby confirm that Apex can determine your appropriate jurisdiction for tax purposes however it deems appropriate or as required by law, and you agree to pay taxes to Apex when Apex includes a charge for taxes on any invoice. You also understand and agree that you are solely responsible for determining your own tax reporting and sales and use tax collection requirements in consultation with your own tax advisers, and that we cannot and do not offer specific tax advice to either Customers or Customer Members.
In order to ensure appropriate charging of Fees and to enforce these Terms, Apex may track the occurrence of communications between Customer Members and Customers that occur off of the Platform via email, phone call, SMS text message, third-party websites, or any other means, whether initiated by a Customer Member or Customer. In order to track the occurrence of such communications, Apex may obscure Customer contact information in a Customer profile, replace Customer contact information in a Customer profile with a different piece of contact information that will forward to the Customer, or take any other step reasonably calculated to track the occurrence of such communications. Except as explicitly stated herein, we will not record or review the content of any communications that do not come into contact with the Apex Platform unless we first obtain your permission.
If you send text messages with a Customer Member or Customer using the telephone number for that Member available on the Platform, we may use a third-party service provider to track these text messages. We track these text messages for fraud prevention, to ensure appropriate charging of Fees, to enforce these Terms, and for quality and training purposes. As part of this process, Apex and its service provider will receive in real time and store data about your text message, including the date and time of the text message, your phone number, and the content of the text message.
The Apex platform may facilitate payments between Customer Members and Customers (“Marketplace Payments”) through our payment processing partner Stripe, but Apex is not a party to any such Marketplace Payments and does not handle funds on behalf of its Members. Customers who receive Marketplace Payments from Customer Members on Apex must agree to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. As a Customer, by agreeing to these terms or continuing to operate as a Customer on Apex, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as those agreements may be modified by Stripe from time to time. As a condition of receiving payment processing services through Stripe, you agree to provide Apex with accurate and complete information about you and your business, and you authorize Apex to share this information and transaction information related to your use of the payment processing services provided by Stripe.
As a Customer Member making a Marketplace Payment through Stripe, you agree to pay all amounts you owe when due using your preferred payment method. You further authorize Stripe to charge your preferred payment method for amounts you owe when they are due, whether they are recurring or one-time payments. You must keep all payment information you provide us up-to-date, accurate and complete. Do not share your payment card, bank account or other financial information with any other Member. We take steps to secure all payment method and other personal financial information, but we expressly disclaim any liability to you, and you agree to hold us harmless for any damages you may suffer as a result of the disclosure of your personal financial information to any unintended recipients.
Apex may enable you to make Marketplace Payments using credit, debit, or prepaid cards, by linking your bank account, or by any other payment method we support. We reserve the right to cancel your ability to make payments with one or more of the payment methods you have authorized in our sole and absolute discretion.
If you choose your bank account as your Marketplace Payment method, you authorize Stripe to make Automated Clearing House (“ACH”) withdrawals from your bank account, and to make any inquiries we consider necessary to validate any dispute involving payments you make to us or to a Member, which may include ordering a credit report and performing other credit checks or verifying the information you provide us against third-party databases. You authorize Apex or its provider to initiate one or more ACH debit entries (withdrawals) or the creation of an equivalent bank draft for the specified amount(s) from your bank account, and you authorize the financial institutions that holds you bank account to deduct such payments. You also authorize the bank that holds your bank account to deduct any such payments in the amounts and frequency designated in your Account.
If your full order is not processed by us at the same time, you hereby authorize partial debits from your bank account, not to exceed the total amount of your order You agree to pay any ACH fees or fines you or we incur associated with transactions you authorize. This return fee will vary based on which state you are located in. The return fee may be added to your payment amount and debited from your bank account if we resubmit an ACH debit due to insufficient funds. We may initiate a collection process or legal action to collect any money owed to us. You agree to pay all our costs for such action, including any reasonable attorneys’ fees. Federal law limits your liability for any fraudulent, erroneous, or unauthorized transactions from your bank account based on how quickly you report it to your financial institution. You must report any fraudulent, erroneous or unauthorized transactions to your bank no more than 60 days after the disputed transaction appeared on your bank account statement. Please contact your bank for more information about the policies and procedures that apply unauthorized transactions and the limits on your liability.
Marketplace Payment Disputes: All requests for Marketplace Payment chargebacks, errors, claims, refunds and disputes (“Payment Disputes”) will be subject to review by Apex in accordance with the rules applicable to the payment method you used to make the Marketplace Payment and will be in Apex’s absolute discretion. Apex is not liable to you under any circumstances for Payment Disputes we are unable to resolve in your favor. We will normally process your valid written Payment Dispute request within thirty (30) days after we receive it, unless a shorter period is required by law. You may file a Payment Dispute by emailing it to Apex support at email@example.com. If you close or deactivate your Account before we adjudicate your Payment Dispute, we will not be able to issue you any amounts you are owed. We will attempt to pay you any Payment Disputed amounts you are owed using the method with which you made the disputed payment, but we cannot guarantee that we will be able to do so if your payment method information is inaccurate, incomplete, or has been cancelled.
If you fail to make Marketplace Payments you owe when due, or if Apex is unable to charge one of your payment methods for any reason, Apex reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or overdue payments will be made by electronic mail or by phone. Such communication may be made by Apex or by anyone on its behalf, including but not limited to a third-party collections agent.
Apex may, from time to time, place a hold on any of your payment methods. Any such hold will be temporary and will not mature into a charge on your payment method. Payment method holds are intended to prevent failed payments.
You may receive certain offers from Apex (“Promotions”), including but not limited to discounted or free use of the Platform for a limited period. Any Promotions are offered at Apex’s discretion, and may be revoked at any time and for any reason.
You are only eligible for any benefits described in the Promotion if (a) you received a communication directly from Apex offering you that Promotion, (b) you satisfy all the requirements identified in that communication; and (c) you maintain an account in good standing with Apex. We may condition receipt of a benefit described in a Promotion in any manner we see appropriate, including limiting eligibility to a subset of Members, to specific categories, or to certain dates. To be eligible for a benefit described in a Promotion, you may need to take a specific action (including but not limited to signing up for a service) or make a payment for specific services.
To the extent you are eligible for multiple promotions that discount a Fee, we will apply those promotions sequentially. For instance, if you are eligible for both a 15% and 10% discount on a $10 Fee, you will pay $7.65.
Any benefits from participating in the Promotion, requirements of accepting the offer, and any other conditions to receive any benefit described in the Promotion will be disclosed to you. After a Promotion ends, regardless of whether you have already satisfied the requirements, you will be ineligible to receive those benefits. Notwithstanding anything to the contrary, Apex may revoke a benefit if we believe that you have not satisfied the Promotion requirements, including maintaining an Account in good standing.
Apex may publicly display advertisements, paid content, and other sponsored information. The manner, mode, and extent of such advertising are subject to change without specific notice to you. Customers may compensate Apex to “Promote” themselves in search results and therefore rank higher. Any such Customers will be clearly designated in applicable search results as “Promoted” or with a similar designation. Apex may impose certain quality-related standards for Customers to qualify as “Promoted”, which standards may be enforced and/or changed at any time.
DISPUTES BETWEEN OR AMONG USERS
Apex values our Pros and Customers, and we understand that occasionally disputes may arise between or among them. Our goal is to provide tools to help users resolve such disputes independently. In the rare event a dispute regarding an interaction related to the Platform cannot be resolved independently, you agree, at Apex’s request, to participate in good faith, to the extent you are reasonably able to do so, in a neutral resolution or mediation conducted by Apex or a neutral third-party mediator or arbitrator selected by Apex. Notwithstanding the foregoing, you acknowledge and agree that Apex is under no obligation to become involved in or impose resolution in any dispute between or among users or any third party.
INTELLECTUAL PROPERTY RIGHTS
Apex Content is protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in these Terms, Apex and its licensors exclusively own all right, title, and interest in and to the Platform and Apex Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of Apex used herein are trademarks or registered trademarks of Apex. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
By sending us any feedback, comments, questions, or suggestions concerning Apex or our services, including the Platform (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Apex and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account or the Platform.
We expect users to respect copyright law. In appropriate circumstances we will terminate the Account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright & DMCA Policy for more information.
Apex does not endorse any Member, user, or any Pro Services, and Apex is not a party to any agreements between or among users, Members, or third parties. No agency, partnership, joint venture, or employment is created as a result of the Terms or any user’s or Member’s use of any part of the Platform, including but not limited to any scheduling or other services. Neither Apex nor any Members or users of the Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. Members are required by these Terms to provide accurate information, and although Apex may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any user or their purported identity or background, regardless of the specific Apex services they are using or any involvement by Apex personnel in providing or scheduling those services.
Any reference on the Platform to a user being licensed or credentialed in some manner, or “badged,” “best of,” “top,” “background checked” (or similar language) designations indicates only that the user has completed a relevant account process or met user review standards, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Apex and is not verification of their identity and whether they or their Pro Services are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform. You should always exercise responsibility, due diligence and care when deciding whether to have any interaction with any other user. Apex offers a non-exhaustive list of safety tips to consider when hiring a Customer. Except as specifically described in the Apex Guarantee and including its exclusions and limitations, Apex has no responsibility for any damage or harm resulting from for your interactions with other users.
The Collective Content may contain links to third-party websites, offers, or other events/activities not owned or controlled by Apex. We do not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk.
By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from Apex with respect to such actions or omissions.
SANCTIONS FOR VIOLATIONS OF THESE TERMS
Without limiting any other rights reserved herein, Apex may, in its sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and Apex, including but not limited to removing User Content you posted, limiting your Account access, requiring you to forfeit certain funds or paid Fees, assessing monetary penalties or costs, terminating your Account, notifying other Members of the termination of your Account and/or the violation of these Terms, decreasing your status or search rank, canceling quotes or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution.
ACCOUNT SUSPENSION OR TERMINATION
We may, in our discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, deactivate or cancel your Apex Account in whole or in part. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from Apex support teams; (b) if appropriate in our sole discretion, we may communicate to other users that your Account has been terminated, blocked, suspended, deactivated, cancelled, or otherwise penalized in any way, and why this action has been taken; and (c) you will not be entitled to any compensation for Platform services or Pro Services cancelled or delayed as a result of Account termination. You may cancel your use of the Platform and/or terminate your Account at any time by following the “Settings” link in in your profile, clicking “Account,” and clicking “Deactivate Account.” Please note that if your Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Platform, including, but not limited to, any reviews.
ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Apex agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Apex as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Apex’s support department at firstname.lastname@example.org. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Apex support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Where the relief sought is $10,000 or less and you do not wish to bring the claim in small claims court, the arbitration will be conducted online by an online arbitration provider of our choosing in accordance with their applicable Arbitration Rules & Procedures effective at the time a claim is made. Currently, to start, you may initiate arbitration proceedings on the FairClaims website. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
Where the relief sought is $10,001 or more, resolution shall be in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. To start an arbitration with JAMS, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover; (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, Cook County, Illinois 94111; and (c) send one copy of the Demand for Arbitration to Apex at 111 Marquardt Dr, Wheeling, IL 60090, ATTN: Legal. You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, Apex will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of Illinois, United States of America. You and Apex further agree to submit to the personal jurisdiction of any federal or state court in Cook County County, Illinois in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND APEX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on Apex) written notice of your decision to opt out to email@example.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the later of the Effective Date of these Terms or your first use of the Platform; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Apex also will not be bound by them.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Platform.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.
Third-Party Beneficiary: You and Apex acknowledge that any third party consumer reporting agency that Apex uses to perform background checks on Customers is an express and intended third party beneficiary of this arbitration provision and as such, the terms of this Arbitration provision will inure to the benefit of the consumer reporting agencies and may be enforced by them. Accordingly, you agree that any dispute that arises between you and a consumer reporting agency that relates to or arises out of this Agreement or any aspect of your relationship with Apex will be resolved by binding arbitration. If any court or arbitrator determines that this third-party beneficiary subsection is void or unenforceable for any reason, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the remainder of the section shall remain enforceable, meaning that the class action waiver and the mutual obligation to resolve disputes between you and Apex through binding arbitration remains enforceable.
The Terms and the relationship between you and Apex shall be governed in all respects by the laws of the State of Illinois, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against Apex that is not subject to arbitration must be resolved by a court located in Cook County, Illinois, or a United States District Court, Northern District of Illinois, located in Cook County, Illinois, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Cook County County, Illinois or the United States District Court, Northern District of Illinois located in Cook County, Illinois, for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.
YOUR USE OF THE PLATFORM, PRO SERVICES, OR COLLECTIVE CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT APEX DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) FOR ANY PERMISSIBLE PURPOSE, CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING BUT NOT LIMITED TO CUSTOMERS AND CUSTOMER MEMBERS. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, APEX AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE PRO SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT. APEX MAKES NO WARRANTY THAT THE PLATFORM OR PRO SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. APEX ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. APEX SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM APEX OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR MEMBERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY CUSTOMER MEMBERS, CUSTOMERS OR SERVICE RECIPIENTS. YOU UNDERSTAND THAT APEX DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY PRO SERVICES. APEX MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE PRO SERVICES. APEX EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PROVIDING PRO SERVICES OR REQUESTING OR RECEIVING PRO SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF APEX OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER APEX NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT APEX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, PRO SERVICES OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERING OR PROVIDING PRO SERVICES OR REQUESTING OR RECEIVING PRO SERVICES THROUGH THE PLATFORM.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF APEX AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, PRO SERVICES, AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY PRO SERVICES OR INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO APEX BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
INDEMNIFICATION AND RELEASE
You agree to release, defend, indemnify, and hold Apex and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your violation of these Terms; (b) your User Content; (c) your interaction with any Member or user; and (d) the request or receipt or offer or provision of Pro Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such Pro Services.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Apex and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a Illinois resident, you waive Illinois Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a Illinois resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Force Majeure: Other than payment obligations, neither Apex nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Contacting You and E-SIGN Consent: You agree that Apex may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Platform. With your consent, Apex, Customer Members, Customers, or other individuals may also contact you by telephone or through text messages. If you have agreed to receive text messages or telephone calls from Apex, Customer Members, Customers, or other individuals you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by sending an email to firstname.lastname@example.org with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (a) a device (such as a computer or mobile phone) with a web browser and Internet access; and (b) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, send an email to email@example.com with contact information and the address for delivery.
Waiver: No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Apex’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Pro Services offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Section Headings: The section headings in these Terms are for convenience only and have no legal or contractual effect. Contact Information: If you have any questions about these Terms or the Platform, please contact us by sending an email to firstname.lastname@example.org, or by writing to Apex Window Werks, Inc., 111 Marquardt Dr, Wheeling, IL 60090.