General Terms of Use

APEX General Terms

These APEX General Terms (“General Terms”), along with any applicable Module Specific Terms (see Section 1.2 below) (which, together with the General Terms, constitute the “Terms”) govern your use of and access to our websites, web-based applications and products, customer support, and other APEX services (collectively, the “Services”), and installation or use of any software that we include as part of the Services, including, without limitation, mobile and desktop applications, scripts, instruction sets, and related documentation (collectively, the “Software”).

By accessing or using any of our Services or Software, you accept and agree to the Terms on behalf of the company or other legal entity for which you are acting (for example, as an employee or contractor); or, if there is no company or legal entity, on behalf of yourself as an individual (in either case, “you,” “your” or “Client”). You represent and warrant that you have the legal right and authority (as well as the capacity – for example, you are of sufficient legal age) to act on behalf of and bind such entity (if any) and yourself.

IF YOU DO NOT AGREE TO THE TERMS, OR IF YOU ARE NOT AUTHORIZED TO ACCEPT THE TERMS ON THE CLIENT’S BEHALF, THEN YOU MAY NOT USE THE SERVICES OR ACCESS THE SOFTWARE.

1. Your Agreement with APEX

1.1 The Parties. By accepting the Terms, you are forming a legal agreement with Apex Analytix, LLC, a Delaware limited liability company located at 1501 Highwoods Blvd., Ste. 200A, Greensboro, NC 27410 (together with its subsidiaries and affiliates, “APEX,” “we,” “us,” or “our”).

1.2 Module Specific Terms. Our Services and Software are licensed, not sold, to you, and may be subject to additional terms and conditions specific to a distinct APEX offering (the “Module Specific Terms”). If there is a conflict between these General Terms and the Module Specific Terms, then the Module Specific Terms will govern as to the specific APEX offering to which the Module Specific Terms relate.

1.3 Governing Law; Venue. These Terms, and any dispute, claim, or controversy arising out of or relating to these Terms, the Services or Software shall be governed by and construed in accordance with the laws specified below, without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. You consent to the exclusive jurisdiction and venue of the courts specified below, and waive any objection to such jurisdiction or venue, including any claim of inconvenient forum:

1.4 Updates to the Terms. We reserve the right to make changes to the Terms from time to time. We may need to make changes to, for example, fix typos, align provisions in the Terms to new or updated APEX policies, or comply with applicable law. We will notify you of any important changes to the Terms. Any changes to the Terms will not apply to any pre-existing disputes between you and APEX. Please review the Terms regularly. If you do not agree with the amended Terms, you must stop using the Services and Software and, as applicable, cancel your subscription.

2. Privacy, Security & Data Processing

2.1 Privacy. We are committed to protecting your privacy and letting you know what APEX will do with your personal data. The APEX Privacy Policy (<privacylink>) sets forth how we collect, use, store and process personal data, and how you (or a data subject) may request access to or deletion of personal data.

2.2 Data Security. We maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality and availability of your Client Data (defined in Section 5.1 below).

2.3 Data Processing. The APEX Data Processing Addendum (“DPA”) (<DPAlink>) sets forth our obligations as a data processor and service provider (as applicable) for personal data under existing privacy regulations. The DPA is incorporated by reference into the Terms.

2.4 Sensitive Personal Information. You must not collect, process, or store any Sensitive Personal Information using the Services or Software, except as directly authorized by us or as may be permitted by any Module Specific Terms. You agree not to transmit, disclose, or make available Sensitive Personal Information to us or our third-party providers, as applicable. “Sensitive Personal Information” means an individual’s financial information, data concerning an individual’s sexual behavior or sexual orientation, medical, or health information protected under any health data protection laws, biometric data, personal information of children protected under any child data protection laws (such as the personal information defined under the U.S. Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws.

3. Use of the Services & Software

3.1 Licensed Rights. For any Services and Software that we make available to you, and subject to your compliance with the Terms and all payment obligations, including any taxes and other fees, we grant to you, and any Authorized Users (defined below) associated with your account, a non-exclusive, limited, revocable right (as set forth herein) to access and use the Services and Software solely (a) during the applicable subscription term, as specified in your ordering document(s); (b) subject to any Module Specific Terms, as applicable; and (c) subject to any parameters, thresholds or defined limitations on use, as specified in your ordering document(s). The version(s) of the Services and Software available at your renewal date may be different from the version(s) available when you first licensed them from us. You agree that your decision to use, access, or license the Services and Software is not contingent on our delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features. An “Authorized User” means (i) you (if you are an individual); and (ii) identified individuals (such as your individual employees, consultants, contractors or other individuals) for whom you have authorized access to the Services or Software through your account. If a Service allows you to designate Authorized Users for such Service, you will be responsible for providing notice to, and obtaining agreement from, any such Authorized Users regarding the application of these Terms to their access to and use of such Services (or Software, as applicable) prior to their access and use. “Ordering document(s)” means any order form, statement of work, service schedule, or similar document or instrument (including any exhibits or addenda thereto), whether in written, electronic, or digital form, that is entered into between the parties and specifies the Services, Software, or other offerings to be provided, including any pricing, term, or usage parameters. Ordering document(s) include any orders placed through an online ordering page, portal, click-through interface, or other electronic ordering mechanism made available by us and accepted by you.

3.2 Prohibited Uses. We consider many of the elements of the Services and Software to be our confidential information. As a condition of using the Services and Software, you and your Authorized Users must not, directly or indirectly: (a) attempt to undermine the security or integrity of our computing systems or networks; (b) use, or misuse, the Services and Software in any way which may impair the functionality of the Service and Software, or other systems used to deliver the Services and Software, or impair the ability of any other user to use the Services and Software; (c) attempt to gain unauthorized access to any materials, data or content other than those to which you have been given express permission to access or to the computer system on which the Services and Software are hosted; (d) use the Services and Software to transmit any Client Data that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use); (e) attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services and Software; or (f) otherwise attempt to interfere with the proper working of the Services and Software. We reserve the right to suspend your access to and use of the Services and Software if you violate (or if we have reason to believe you have violated) any of the prohibited uses described herein.

3.3 APEX’s Intellectual Property. We remain the sole owner of all rights, title, and interest in and to: (a) the Services and Software; (b) our APIs; (c) any materials or other information based on, derived from, or otherwise using any of the foregoing (including, without limitation, Anonymized Data); and (d) all rights under trade secrets, copyrights, trademarks, patents, and any other intellectual property or proprietary rights relating to any of the foregoing. We reserve all rights not expressly granted to you under the Terms.

3.4 Beta Offerings. We may provide Services or Software (or related features or functionalities) designated as “beta,” “trial,” “evaluation,” “pre-release,” “not for resale,” or similar (each, a “Beta Offering”). Unless otherwise stated in applicable documentation: (a) Beta Offerings may be used solely for non-commercial evaluation; and (b) access is limited to you individually or, if you are an entity, to your designated employees. Notwithstanding anything to the contrary, Beta Offerings are provided “as is,” with no commitment to continue, support, or make them generally available. Beta Offerings may contain errors or defects that could result in data loss or system failure. We may modify or discontinue any Beta Offering at any time without notice.

3.5 Third-Party Services & Software. We may make third-party software and services (including plug-ins and extensions) available to you through the Services and Software as a convenience. Third-party software and services are not Services and Software as defined by these Terms and your acquisition and use of such third-party software and services is solely between you and the third party. You are solely responsible for complying with all applicable third-party terms.

3.6 APEX APIs. In connection with your use or access to the Services and Software, you may have access to standard application programming interfaces, software development kits, tools, libraries, scripts, sample source code and similar developer material (collectively, “APIs”). We may monitor your usage of the APIs to verify compliance with these Terms. Unless otherwise specified in Module Specific Terms (including any documentation associated therewith), you may use the APIs only: (a) for the Services and Software for which you have a subscription and for which the APIs are provided; (b) during the subscription period specified in your ordering document(s); (c) in accordance with our then-current API Terms of Use, as available; and (d) to develop applications, services, modules, or components solely for your internal business use.

4. Your Account

4.1 Account Information. You are responsible for all activity that occurs under your account even if that activity is not by you or is without your knowledge or consent. You may not: (a) share your account information (except with an authorized account administrator), whether intentionally or unintentionally; or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Services and Software.

4.2 Account Security. You are responsible for taking reasonable steps to maintain the security and control of your APEX account. We may require you to enable multi-factor authentication or an alternate email address for security purposes. We assume no responsibility for any loss that you may sustain due to a compromise of your account login credentials, or your failure to follow or act on any notices or alerts that we may send to your email address on file. You are responsible for keeping your email address up to date to receive any notices or alerts that we may send you, and you are also responsible for carefully reviewing any messages purporting to be from us to ensure they are legitimate. We assume no responsibility if you are unable to access your APEX account because you cannot provide the appropriate login credentials, such as a password or email address. If you suspect that your APEX account or any of your security details have been compromised, please contact us at support@apexanalytix.com.

4.3 Free Account Inactivity. You are responsible for keeping your APEX account active, which means you must sign in and use the account periodically to avoid any deletion of Client Data, disruption or loss of access to the Services and Software, or termination of your account. If you do not sign in to your account periodically, we reserve the right to assume your account is inactive and agree that we may permanently delete the Client Data stored in the account,or close your account entirely. Prior to permanently deleting your Client Data or closing your account for inactivity, we will attempt to provide you with notice. For clarity, this Section 4.3 (Free Account Inactivity) does not apply to paid accounts in good standing.

5. Client Data

5.1 Generally. “Client Data” means all of the electronic data (including, for example, your raw spend data or data about your suppliers, vendors and service providers), text, content or other materials, including personal data, that you provide to us, or submit to us in connection with your use of the Services and Software, as connected to your specific APEX account.

5.2 Ownership of Client Data. As between you and APEX, you retain all rights and ownership in and to your Client Data, and to the work product, results, reports, outputs or other items created or generated by or through your use of the Services as tied to your specific APEX account (collectively, “Outputs”). We do not claim any ownership rights in or to your Client Data or Outputs.

5.3 Rights to Use Your Client Data. In order for you to access and use our Services and Software, or for us to provide you with certain features or functionalities associated with the Services, you will need to provide us with Client Data. You represent and warrant to us that you have the necessary rights, licenses and permissions for us to use and process your Client Data. We will not use your Client Data except: (a) at your request, or with your consent; (b) in connection with providing and improving the Services and Software (including maintaining, securing, updating, or otherwise modifying the Services and Software); or (c) in connection with legal obligations, enforcement, investigations, or proceedings. We may block or remove your Client Data for any reason, including non-compliance with these Terms. When you provide or make accessible your Client Data, you expressly authorize us to use, reproduce, modify, create derivative works from, distribute and make available your Client Data in connection with providing you the Services and Software, and the other activities contemplated by the Terms.

5.4 Compliance with Applicable Law. You are responsible for ensuring that: (a) your Client Data and its use with any of our Services and Software comply with all applicable laws and regulations and these Terms; (b) your Client Data will not infringe or misappropriate any intellectual property or proprietary rights of any person; and (c) you secure backup copies of your Client Data at all times. You acknowledge that services provided online may suffer disruptions or outages, and you may not be able to retrieve your Client Data as a result.

5.5 Anonymized Data. You acknowledge and agree that we may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on “Anonymized Data,” defined as Client Data that is: (a) anonymized and not identifiable to Client or any person; (b) combined with the data of other clients or additional data sources; and (c) presented in a way which does not reveal your or your Authorized Users’ identity. We will be considered the exclusive owners of Anonymized Data and may use Anonymized Data for any lawful business purpose without a duty of accounting to you.

6. Fees & Payments

6.1 Fees. You agree to pay us all fees specified in your ordering document(s). Fees are quoted and payable in U.S. dollars. Once paid, fees are non-refundable. If you fail to pay any of our fees when due, and we have to take action against you to collect on those amounts, you agree to pay our reasonable attorneys’ fees, court costs and other reasonable collection expenses incurring in recovering the unpaid fees.

6.2 Taxes. Our fees are exclusive of any taxes, including applicable sales, excise, value-added, use, or similar taxes, duties, or government charges (“Taxes”). If you are located in the U.S., we will calculate and include Taxes in your invoice. It will be your responsibility to pay all Taxes. We do not require you to pay any Taxes based on our net income.

6.3 Payment Authorization. If you choose to pay with a credit card or bank draft, you authorize us to store your payment method and use it in connection with your payment for Services and Software. To avoid interruption of the Services, we may participate in programs supported by your card provider to try to update your payment information. You authorize us or (our authorized payment processor(s)) to continue billing and charging your account for amounts owed with the information that we obtain.

7. Term & Termination

7.1 Term. Your subscription to the Services and Software will run: (a) for the duration of the term described in your ordering document(s); or (b) if no term is listed, until the subscription is cancelled in accordance with these Terms, or our agreement with you ends or expires. You acknowledge that certain subscriptions may renew automatically, as described in your ordering document(s).

7.2 Termination by You. Unless stated in your ordering document(s) or in the Module Specific Terms, you may cancel your subscription and terminate your use of the Services and Software at any time. Cancellation or termination of your account does not relieve you of any obligation to pay any outstanding fees associated with your subscription, including, but not limited to, early cancellation fees.

7.3 Termination by Us. Unless stated in the Module Specific Terms, we may, at any time, immediately terminate or suspend your right to use and access the Services and Software if in our sole discretion:

(a) you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);

(b) you fail to make the timely payment of fees for the Services and Software, if any;

(c) continuing to provide the Software or Services to you would violate any applicable law;

(d) we elect to discontinue the Services and Software, in whole or in part if it becomes impractical for us to continue offering Services in your region due to change of law, or other reason; or

(e) there has been an extended period of inactivity in your free account.

If we terminate the Terms or your use of the Services and Software for reasons other than for cause (as listed in subparts (a), (b) and (e) above), we will make reasonable efforts to notify you via the email address you provide to us at least thirty (30) days prior to termination with instructions on how to retrieve your Client Data. If we terminate your use of the Services and Software for reasons listed in subparts (c) or (d), we may, in our sole discretion, provide you with a pro rata refund for any prepaid, unused fees for that Service or Software. Upon termination by us, you may lose access to your Client Data.

7.4 Effect of Termination. Upon termination or expiration of the Terms for any reason: (a) your account, your subscription(s), and your and your Authorized Users’ right to use the Services and Software will immediately terminate; and (b) the effects described above will apply to all subscriptions and other Services and Software tied to your account. In connection with the expiration or termination of a subscription: (i) as a convenience to you for some of the Services, we may provide you with a brief period (for example, 30 days) in which you may retrieve your Client Data after expiration or termination of the Services, if you are in compliance with these Terms and pay the applicable fees, if any; and (ii) otherwise, we may delete, without notice, any or all of your Client Data and Outputs, including backup and other copies thereof.

7.5 Survival. In addition to this Section 7, the following parts of these General Terms will survive termination or expiration for any reason: Section 1.3 (Governing Law; Venue); Section 3.3 (APEX’s Intellectual Property); Section 3.4 (Beta Offerings); Section 3.5 (Third-Party Services & Software); Section 3.6 (APEX APIs); Section 5 (Client Data); Section 8 (Indemnification); Section 9 (Warranty Disclaimer); Section 10 (Limitation of Liability); Section 11 (Export Control Compliance); Section 12 (Government Terms); Section 16 (Feedback); and Section 17 (General Legal).

8. Indemnification

8.1 Your Indemnity Obligations. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim(s), demand(s), loss(es), or damage(s), including reasonable attorneys’ fees, arising out of, or related to: (a) your Client Data; (b) your use of the Services and Software (as applicable); or (c) your violation of the Terms (an “Third-Party Claim”). We have the right to control the defense of any Third-Party Claim subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any Third-Party Claim.

8.2 Our Indemnity Obligations. Subject to these Terms, we will defend you against any claim brought against you by a third party alleging that the Services or Software infringes such third party’s patent, copyright, trademark, or trade secret rights (“IP Claim”), and we will pay damages finally awarded against you (or any settlement amount agreed to in writing by us) as a result of the IP Claim, provided you: (a) promptly notify us of the IP Claim; (b) give us sole control of the defense and settlement of the IP Claim; and (c) promptly provide us with any assistance and cooperation requested by us in connection with the defense and settlement. These defense and payment obligations do not apply if: (i) the IP Claim arises from, or is based on, the use or combination of the Services or Software with any software, hardware, data, material, or service not provided by us; (ii) the IP Claim covers any method or process not fully embodied in the Services or Software; (iii) there is available an update, upgrade or enhancement that avoids the infringement alleged in the IP Claim; or (iv) you have been in breach of these Terms. If we receive information about an infringement claim related to any of our Services or Software, we may, in our discretion: (1) modify or replace the Services or Software (or the portion of the Services or Software that is the subject of the IP Claim); (2) obtain a license for your continued use of the Services or Software; or (3) terminate your subscription for the Services or Software and refund any prepaid fees covering the remainder of the term of the terminated subscription. This Section 8 states our sole obligations and your exclusive remedy for any infringement of any third-party intellectual property rights.

9. Warranty Disclaimer

Unless stated in the Module Specific Terms, the Services and Software are provided “As Is.” To the maximum extent permitted by law, APEX and its affiliates (“Covered Parties”) disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. The Covered Parties make no commitments about the content within the Services. The Covered Parties further disclaim any warranty that (A) the Services and Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (B) the results obtained from the use of the Services and Software will be effective, accurate, or reliable; (C) the quality of the Services and Software will meet your expectations; or (D) any errors or defects in the Services and Software will be corrected.

10. Limitation of Liability

Unless stated in the Module Specific Terms, in no event shall the Covered Parties be liable to you or anyone else for any special, incidental, indirect, consequential, moral, exemplary or punitive damages whatsoever, regardless of cause, including losses and damages: (a) resulting from loss of use, data, reputation, revenue or profit; (b) based on any theory of liability, including breach of contract or warranty, negligence, or other tortious action; or (c) arising out of or in connection with your use or access to the Services and Software. Nothing in the Terms limits or excludes our liability for gross negligence, fraud, willful misconduct, or death or personal injury caused by us or one of our employees.

Our total liability in any matter arising out of or related to the Terms is limited to the greater of $100 USD or the aggregate amount that you paid for access to the Services and Software during the one-month period preceding the event giving rise to the liability.

The limitations and exclusions in this Section 10 apply to the maximum extent permitted by law, even if (i) a remedy does not fully compensate you for any losses or fails of its essential purpose; or (ii) the Covered Parties knew or should have known about the possibility of damages.

11. Export Control Compliance

When you obtain, access or use the Services and Software, you will comply with the export control and international trade laws and regulations of the United States and of any other country whose laws apply to you or your Client Data. You will not access or use any of the Services or Software from within a U.S. sanctioned location or if you appear on any U.S. government restricted parties list. You will obtain U.S. government and any other required authorization before you obtain, access or use, or allow any person or entity to obtain, access or use, any of the Services or Software for a U.S.-restricted end use. You may not upload or otherwise provide us with any content or materials (including your Client Data) that constitute classified information or that are subject to the International Traffic in Arms Regulations (“ITAR”) or its foreign counterparts. You are solely responsible for compliance with all export control requirements applicable to your Client Data and you may not use any of the Services or Software to make your Client Data or any other content or materials available to any country, entity or other party that cannot legally receive them under U.S. and other applicable law.

12. Government Terms

If you are a U.S. government entity, or if the Terms are or become subject to the Federal Acquisition Regulations (FAR), then the Services and Software, provided under the Terms are “Commercial Product(s) or Commercial Service(s)”, as those terms are defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” and services related thereto, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Federal Government End Users (a) only as Commercial Products and Services; and (b) with only those rights as are granted to all other end users pursuant to the Terms. Unpublished rights are reserved under the laws of the United States.

13. Notices

13.1 Notice to You. Except as otherwise expressly stated in the Terms (including any Module Specific Terms), any notices by us to you will be provided: (a) by email to the registered email address associated with your account; (b) by posting to your account; (c) by posting within the Services or Software;(d) by postal mail or delivery service to the address associated with your account, or (e) in any other manner deemed reasonable by us that involves specific notification to you. Notices from APEX to you: (i) in the case of notices by email, be effective one day after being sent and (ii) in the case of other notices, five days after being posted or sent.

13.2 Notices to Us. Any notices by you to us will be sent by postal mail or delivery service to Apex Analytix, LLC, 1501 Highwoods Blvd., Ste. 200A, Greensboro, NC 27410, Attn: Legal Department. Such notices will be effective when received by us.

14. Assignment

You may not assign or otherwise transfer these Terms or your rights or obligations under these Terms (whether by operation of law or otherwise), and we may terminate these Terms (including your rights under these Terms) if you are acquired by, or come to be controlled by, any other person or entity (whether by acquisition of shares, merger, or other transaction) without our written consent. We may assign or otherwise transfer these Terms (without your consent or notice to you) as part of a reorganization, merger, sale of assets or other transaction that involves all or a portion of the Services and Software, or related business.

15. Feedback

You may choose to provide us with feedback regarding the Services and Software, including in the form of ideas, suggestions, proposals, improvements, or examples involving your Client Data (“Feedback”). In such event, you agree that we are free to use the Feedback for our business purposes, including by incorporation into the Services and Software without any payment or attribution or other obligation to you.

16. General Legal

16.1 Severability. If and to the extent any provision of these Terms is held unenforceable under applicable law: (a) such provision will be deemed modified to the extent reasonably necessary to conform to applicable law but to give maximum effect to the intent of the parties set forth in these Terms; and (b) such provision will be ineffective only as to the jurisdiction in which it is held unenforceable without affecting enforceability in any other jurisdiction.

16.2 Entire Agreement. These Terms, including any Module Specific Terms (which are incorporated by reference in these Terms), constitute the entire agreement between you and APEX (and merge and supersede any prior or contemporaneous agreements, discussions, communications, representations, warranties, advertising or understandings) with respect to the subject matter hereof. Any access to or use of the Services and Software is expressly conditioned on the application of these Terms, and any other terms are expressly rejected.

16.3 No Waiver. Failure to enforce or exercise any provision of these Terms is not a waiver of such provision, unless such waiver is specified in writing and signed by the party against which the waiver is asserted.

16.4 Interpretation. The English version of these Terms controls and will be used to interpret them. These Terms will not be interpreted against APEX just because we drafted them. Section headings are for convenience only and do not affect the meaning of the Terms. Unless the context requires otherwise, “and” and “or” should be read as “and/or,” singular words include the plural (and vice versa), and references to any gender include all genders.

16.5 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to APEX) under the Terms if the delay or failure is due to unforeseen events, which occur after the effectiveness of the Terms and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

16.6 Electronic Acceptance. You must accept the Terms electronically, including by clicking to accept, checking a box, or using any similar electronic method. Your electronic acceptance is legally binding and has the same force and effect as a handwritten signature.