APEXTI TERMS OF USE AGREEMENT
Last Updated Date: January 9, 2025
Introduction: Welcome and thank you for your interest in Apexti (“Apexti”, “we”, “us” or “our”). This Terms of Use Agreement (“Terms of Use”, and together with all applicable Supplemental Terms (as defined in Section 1.6 (Supplemental Terms)), the “Agreement”) describes the terms and conditions that apply to your use of (i) the website located at https://apexti.com, https://subkeys.io and its respective subdomains (collectively, the “Website”), (ii) any software and associated documentation that is made available via the Website or Service (“Software”), and (iii) the products, services, content, and other resources available on or enabled via our Website or Software, including Apexti’s proprietary platform for issuing, using, and managing virtual API keys (collectively, with our Software and Website, the “Service”). If you use the Service pursuant to a separate enterprise services agreement (“Enterprise Agreement”) between Apexti and any Apexti customer (each, a “Customer”), including as an Admin User or Access User (defined below) of any such Customer, you acknowledge and agree that the terms of such Enterprise Agreement shall govern your access to and use of the Service.
Your Agreement to These Terms of Use: PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ENTERING INTO AN ORDER FORM, ACCESSING OR USING THE SERVICE IN ANY WAY, DOWNLOADING OR ACCESSING ANY SOFTWARE, OR BROWSING THE WEBSITE, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH APEXTI, (3) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF YOU ARE ACCESSING OR USING THE SERVICE ON BEHALF OF AN ENTITY, ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
Subscription Autorenewal**: IF YOU SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SERVICE FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT APEXTI’S THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6.4(a) (AUTOMATIC RENEWAL) BELOW.**
Updates: THE AGREEMENT IS SUBJECT TO CHANGE BY APEXTI IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 12.6 (Agreement Updates). When changes are made, Apexti will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated herein or in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Apexti may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE. IF YOU CONTINUE USING THE SERVICE WITHOUT PROVIDING CONSENT TO THE UPDATED AGREEMENT AS SPECIFIED BY APEXTI, APEXTI RESERVES THE RIGHT TO SUSPEND YOUR ACCESS TO THE SERVICE AT ANY TIME.
USE OF THE SERVICE. The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless otherwise specified by Apexti in a separate license, your right to access any and all Services is subject to this Agreement.
Description of Service. The Service provides an administrative platform and related Software through which Customers can issue and manage unique virtual API keys (each, a “Virtual Key”) in order to track, monitor, and control their access and use of third-party products and services offered via API (each, an “API Service”). The Service also includes, without limitation, a webapp (“Web App”) that enables Customer and its Admin Users to issue, track, and manage Virtual Keys, and Access Users’ access and use of the applicable API Services via Virtual Keys, and view analytical information, such as reports, with respect to such use (“Reports”). Each Customer shall have an Account (defined below) for such Customer on the Service, and each such Customer Account may have multiple authorized administrative users (“Admin Users”).
Admin Users and Access Users. Customers can designate one or more Admin Users, as defined below, to manage Customer’s access to and use of the Service. Admin Users may have certain administrative capacities, as designated by Customer through the Service, including without limitation the ability to issue Virtual Keys to employees, agents, or clients of Customer (each, a “Access User”) to enable such Access Users to access and use Customer’s instance of the applicable API Service. Each Customer acknowledges and agrees that it is directly responsible for the actions and omissions of its Admin Users and Access Users, whether or not such actions or omissions have been directed or authorized by such Customer. Access Users may, but are not required to, hold an Account on the Service as authorized by a Customer in order to access and/or use any Virtual Key.
Third-Party Services. Certain features of the Services may incorporate, link to, or rely on third-party websites, services, technology, or applications accessible or otherwise connected to the Services but not provided by Apexti, including without limitation any API Service (each, a “Third-Party Service” and, collectively, “Third-Party Services”). Notwithstanding anything to the contrary in these Terms of Use, you acknowledge and agree that (i) you, and not Apexti, are solely responsible for ensuring that any use of the Service by you in connection with a Third-Party Service complies with the terms applicable to your use of such third-Party Service; (ii) Apexti shall not be liable for any damages, liabilities, or other harms in connection with your use of and/or any inability to access the Third-Party Services; and (iii) Apexti shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of Third-Party Services or any other circumstances beyond Apexti’s control, including without limitation the failure of any API Service. The Service includes tools that enable you to export information, including Your Content, to Third-Party Services. By using one of these tools, you agree that Apexti may transfer that information to the applicable Third-Party Service. Apexti is not responsible for any Third-Party Service’s use of your exported information.
Reports. Subject to this Agreement, Apexti hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right, for Customer’s internal business purposes only, to access, download copy, and display any Reports.
Apexti Software. Use of any Software is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. Unless you agree to the terms of such license agreement, you shall not use, download, or install any Software that is accompanied by or includes a license agreement. At no time will Apexti provide you with any tangible copy of our Software. Apexti delivers access to the Software via electronic transfer or download and does not use or deliver any tangible media in connection with the (i) delivery, installation, updating or problem resolution of any Software (including any new releases); or (ii) delivery, correction or updating of documentation. For the purposes of this section, tangible media shall include, but is not limited to, any compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement takes precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If you and Apexti have not entered into a separate license agreement with respect to your use of the Software or if no license agreement accompanies use of the Software, use of the Software will be governed by this Agreement and, subject to your compliance with this Agreement, Apexti grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the Service in the manner permitted by this Agreement. Some Software may be offered under an open source license that we will make available to you upon your written request, and in the event of a conflict between this Agreement and such open source license, the terms of the open source license will govern with respect to the applicable Software.
Supplemental Terms. Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms (“Supplemental Terms”), including without limitation those terms set forth on any Enterprise Agreement. Such Supplemental Terms will either be set forth in the applicable supplemental Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Service; provided that in the event of a conflict between any Enterprise Agreement and these Terms of Use, the Enterprise Agreement shall always control.
Updates. You understand that the Service is evolving. As a result, Apexti may require you to install updates to the Software that you have installed on the devices through which you access or use the Service (“Device”). You acknowledge and agree that Apexti may update the Service with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update or other addition to the Service shall be subject to this Agreement.
REGISTRATION.
Registering Your Account. In order to access certain features of the Service, you may be required to register an account on the Service (“Account”) or have a valid account on a compatible Third-Party Service through which you can connect to the Service.
Registration Data. You represent that you are (i) at least eighteen (18) years old; and (ii) not a person barred from using the Service under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You agree to notify Apexti immediately of any unauthorized use of your Account or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Apexti has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Apexti has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by Apexti, or if you have been previously banned from any of the Services. You acknowledge and agree that Apexti will use all data provided by you hereunder in accordance with its Privacy Policy.
Necessary Equipment and Software. You must provide all Devices and other equipment or software (excluding Software) necessary to access or use the Service. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.
INTELLECTUAL PROPERTY.
Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Apexti, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”). Subject to any applicable Enterprise Agreement, you grant Apexti a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, and display Your Content (in whole or in part) for the purposes of operating and providing the Service to you and to our other users. When you make Your Content available through the Service, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in this Section 3.1.
Storage. Unless expressly agreed to by Apexti in writing elsewhere, Apexti has no obligation to store any of Your Content. Apexti 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 the Service. Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting. You agree that Apexti retains the right to create reasonable limits on Apexti’s use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Service and as otherwise determined by Apexti in its sole discretion.
The Service. Except with respect to Your Content, you agree that Apexti and its suppliers or licensors own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, concepts, artwork, sounds, methods of operation, moral rights, documentation, and Apexti software). You shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Service.
Trademarks. Apexti and all related stylizations, graphics, logos, service marks and trade names used on or with the Service are the trademarks of Apexti and may not be used without permission in connection with your, or any third-party’s, products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Apexti, whether through its support channels, customer service and sales interactions, suggestion, feedback, forum, or similar pages or other channels (“Feedback”) is at your own risk and that Apexti 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 Apexti 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 the Service and/or Apexti’s business.
USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Apexti’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of Apexti; (viii) interfere with or attempts to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service; or (ix) take any action or make available any Content on or through the Service that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Apexti’s prior written consent. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Service terminates the licenses granted by Apexti pursuant to this Agreement.
INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT. Apexti may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content, at any time. You hereby provide your irrevocable consent to such monitoring.
FEES AND PURCHASE TERMS.
Fees. By entering into this Agreement, each Customer agrees that it shall pay all fees or charges (“Fees”) to such Customer’s Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. Fees applicable to your use of the Service may be set forth on the Website, in the applicable Enterprise Agreement, or in a separate order form provided by Apexti and mutually executed by Apexti and the applicable Customer (“Order Form”). Fees include a Service Subscription Fee (defined below) and may also include usage-based Fees, including without limitation a Fee assessed based on each unique request to use a Virtual Key processed through the Service (collectively, “Usage Fees”), and Fees related to data storage on or through the Service (“Data Storage Fees”).
Third-Party Service Provider. Apexti uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). If you make a purchase on the Service, you will be required to provide your payment details and any additional information required to complete your payment directly to our Third-Party Service Provider. You agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consent and authorize Apexti and Stripe to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
Payment. By providing Apexti and/or our Third-Party Service Provider with your payment information, you agree that Apexti and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Apexti hereunder and that no additional notice or consent is required. You shall immediately notify Apexti of any change in your payment information to maintain its completeness and accuracy. Apexti reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Apexti and/or our Third-Party Service Provider or our inability to collect payment constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.
Subscriptions. Access to certain features and functionality of the Services is billed on a time-limited basis (a “Subscription”), and the Fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular intervals thereafter in accordance with your elections at the time of purchase. Apexti reserves the right to change the timing of our billing. Apexti reserves the right to change the Subscription pricing at any time in accordance with Section 12.6 (Agreement Updates). If changes to the Subscription price occur that impact your Subscription, Apexti will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 6.4(b). Apexti is not obligated to provide the Service to you until Apexti accepts your order by a confirmatory email or other appropriate means of communication.
Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew on an annual basis thereafter at Apexti’s then-current price for such Subscription until terminated in accordance with this Agreement. By subscribing to any Subscription, you authorize Apexti to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription period (each, a “Renewal Term”). Upon renewal of your Subscription, if Apexti does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that Apexti may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method 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).
Cancelling Subscriptions. You may cancel your Subscription 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, you must contact Apexti at support@apexti.com, or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page.
Effect of Cancellation. If you cancel your Subscription, (i) your access to the applicable Service will terminate immediately; (ii) your Subscription will not be renewed after your then-current term expires; and (iii) you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period.
Upgrades and Downgrades. If you choose to upgrade your Subscription in the middle of a Subscription period, such upgrade will take effect immediately and any incremental Fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Term, the Fees will reflect any such upgrades. If you choose to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Term. Downgrading a Subscription may cause loss of content, features, or capacity of the applicable Service as available, and Apexti does not accept any liability for such loss.
Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Service provided under this Agreement. If Apexti determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Apexti shall collect such Sales Tax in addition to the Fees. If any services, or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Apexti, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Apexti for any liability or expense Apexti may incur in connection with such Sales Taxes. Upon Apexti’s request, you will provide it 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” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You shall make all payments of Fees to Apexti free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Apexti shall be your sole responsibility, and you shall provide Apexti with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Free Trials and Promotional Access. Any free trial or other promotion that provides users access to paid tiers of the Service must be used within the specified time of the trial. At the end of the trial or promotional period, if so stated in the terms applicable to such trial or promotion, your use of the Service will automatically roll into a paid Subscription at our then-current Service Subscription Fees and you will be charged for such Subscription as set forth in Section 6.4 (Subscriptions) if you do not cancel prior to the Subscription Service Commencement Date.
INDEMNIFICATION. You shall indemnify and hold Apexti, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Apexti Party” and collectively, the “Apexti Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) Your Content; (ii) your use of, or inability to use, the Service; (iii) your violation of this Agreement; (iv) your violation of any rights of another party, including any API Service; (v) the actions or omissions of any of your Admin Users or Access Users, and (vi) your violation of any applicable laws, rules or regulations. Apexti 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 Apexti in asserting any available defenses. This provision does not require you to indemnify any of the Apexti Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Service.
DISCLAIMER OF WARRANTIES.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE APEXTI 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 SERVICE.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE APEXTI PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS OR INFORMATION OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY REPORTS, IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. YOU ACKNOWLEDGE AND AGREE THAT (1) REPORTS ARE GENERATED BASED ON DATA PROVIDED BY API SERVICES, (2) APEXTI IS NOT RESPONSIBLE FOR THE ACCURACY, TIMELINESS, OR COMPLETENESS OF SUCH DATA, (3) YOU ARE RESPONSIBLE FOR INDEPENDENTLY VERIFYING THE CONTENTS OF ANY REPORT, AND (4) YOU RELY ON ANY REPORT AT YOUR OWN RISK.
FROM TIME TO TIME, APEXTI 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 APEXTI’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE APEXTI PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE APEXTI PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT APEXTI DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. APEXTI MAKES NO WARRANTY THAT THE GOODS OR SERVICE PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS, BE COMPATIBLE WITH THE SERVICE, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. APEXTI MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICE, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY THIRD-PARTY SERVICE.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE APEXTI PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ANY APEXTI PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (v) ANY ALLEGATIONS THAT YOUR USE OF THE SERVICE IN CONNECTION WITH A THIRD-PARTY SERVICE BREACHES THE TERMS APPLICABLE TO YOUR OR ANY THIRD-PARTY’S USE OF SUCH THIRD-PARTY SERVICE, OR (vi) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A APEXTI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A APEXTI PARTY’S NEGLIGENCE; OR FOR (A) ANY INJURY CAUSED BY A APEXTI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE APEXTI PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) THE TOTAL AMOUNT PAID TO APEXTI BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (ii) $100; OR (iii) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO THE LIABILITY OF A APEXTI PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A APEXTI PARTY’S NEGLIGENCE; OR (B) ANY INJURY CAUSED BY A APEXTI PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. APEXTI 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.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APEXTI AND YOU.
TERM AND TERMINATION.
Term. The term of this Agreement commences on the earlier of (a) the date when you first used the Service, or (b) the date when you otherwise accept this Agreement (as described in the preamble above), and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.
Termination of Service by Apexti. Apexti has the right to, immediately and without notice, suspend or terminate any Service provided to you, at any time, in the event that (a) the Enterprise Agreement pursuant to which you use the Service is terminated; (b) you breach any provision of this Agreement; (c) Apexti determines that your use of the Service violates this Agreement, infringes any right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Apexti; or (d) Apexti otherwise determines in its sole discretion not to provide the applicable Service. You agree that all terminations shall be made in Apexti’s sole discretion and that Apexti shall not be liable to you or any third party for any termination of your Account.
Termination by You. If you want to terminate this Agreement, you may do so by (i) notifying Apexti at any time and (ii) closing your Account for the Service. Your notice should be sent, in writing, to Apexti’s address set forth below. ANY SUCH TERMINATION WILL BE EFFECTIVE AT THE END OF THE THEN-CURRENT TERM OF ANY AND ALL OF THE SUBSCRIPTIONS AS SET FORTH IN SECTION 6.4(a) (AUTOMATIC RENEWAL), WHICH WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 6.4(a) (AUTOMATIC RENEWAL).
Effect of Termination. Upon termination of the Service or the applicable feature or functionality thereof, your right to use the Service or the applicable feature or functionality thereof will automatically terminate, and we may delete Your Content associated therewith from our live databases. If we terminate your Account for cause, we may also bar your further use or access to the Service. Apexti will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
No Subsequent Registration. If this Agreement is terminated for cause by Apexti or if your Account or ability to access the Service is discontinued by Apexti due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Service through use of a different member name or otherwise.
INTERNATIONAL USERS. The Service may 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 Apexti intends to announce such service or Content in your country. The Service is controlled and offered by Apexti from its facilities in the United States of America. Apexti makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
GENERAL PROVISIONS.
Electronic Communications. The communications between you and Apexti may take place via electronic means, whether you visit the Service or send Apexti emails, or whether Apexti posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Apexti in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Apexti electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Apexti’s prior written consent. Apexti may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Apexti 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, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: info@apexti.com. 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.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Agreement Updates. When changes are made, Apexti will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated herein or in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Apexti may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Apexti agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in New York, NY.
Governing Law and Jurisdiction. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, 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 THE AGREEMENT.
Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
Notice. Where Apexti requires that you provide an email address, you are responsible for providing Apexti with a valid and current email address. In the event that the email address you provide to Apexti is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Apexti’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Apexti at the following address: 548 Market St, PMB 259187, San Francisco CA 94104-5401 United States. Such notice shall be deemed given when received by Apexti by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (i) into any United States embargoed countries, or (ii) 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 the Service, you represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service 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 Apexti 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 Apexti products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Entire Agreement. The Agreement is 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.