Date of update: April 1, 2019
APEX Delivery Terms and Conditions
These Terms and Conditions (“T&C“) set forth the terms and conditions APEX Mobile App LLC, a Delaware corporation (“APEX”) requires you to accept if you want to use or receive any APEX services (collectively, “Services“), or download, install or use any associated application which purpose is to enable you to use the Services (“App”). The terms and conditions stated or referenced herein constitute a legal agreement between you and APEX. By using or receiving any Services, or downloading, installing or using any App, you hereby expressly acknowledge and agree to be bound by the terms and conditions contained herein, and any future amendments and additions to these T&C as published from time to time at https://www.apexmobileapp.com or through our Services. Upon such using or receiving our Services or App you become a “User” of APEX’s Services and App as further described herein.
You may only access the Services using the App or other specifically authorized means. It is your responsibility to check to ensure you download the correct App for your mobile, tablet, computer or similar device (“Device“). APEX is not liable if you do not have a compatible Device or if you have downloaded the wrong version of the App for your Device. APEX reserves the right to terminate your use of our Services or App if you do so with an incompatible or unauthorized Device.
APEX reserves the right to modify the terms and conditions of these T&C or any of its policies relating to our Services or App at any time, effective upon posting of an updated version of the T&C on our website www.apexmobileapp.com and on our App. APEX will use reasonable efforts to inform its Users of material changes via email, but you are still responsible for regularly reviewing these places for any updates to the T&C. Continued use of our Services or App after any updates shall constitute your consent to such all changes to the T&C contained in such update.
Our Services for Drivers and Vendor/Merchants
Our App and Services make possible a connection between those individuals and/or businesses that want to contract with someone to pick-up, carry and/or deliver personal property and goods (“Vendor/Merchants“) and those individuals and/or businesses seeking to perform pick-up, carrying and delivery services (“Drivers“). The performance of pick-up, carrying and delivery services by a Driver, the time period in which these services are performed by a Driver, as well as the item(s) of personal property and goods being picked-up, carried and/or delivered by a Driver, are collectively referred to as a “Pack.” Drivers and Vendor/Merchants together are referred to as “Users“.
Our App and Services connect third party Drivers who want to deliver Packs for third party Vendor/Merchants, and give Vendor/Merchants a way to find those Drivers and schedule their Packs. Drivers are self-employed/independent contractors who choose to make deliveries for Vendor/Merchants posting on our platform. APEX does not control whether a Driver chooses to offer for a particular Pack on our platform, or whether or not a Driver makes a business out of providing delivery services, either using our platform or otherwise. Accepting deliveries through the APEX platform does not preclude a Driver from providing delivery services under another platform, or for other persons simultaneously.
APEX IS A PLATFORM AND DOES NOT PROVIDE TRANSPORTATION SERVICES. WE ARE NOT A TRANSPORTATION CARRIER. IT IS THE THIRD PARTY DRIVER’S SOLE DECISION WHETHER TO SHOW INTEREST FOR AND PROVIDE THE PICK-UP, CARRY AND DELIVERY SERVICES REQUESTED BY VENDORS/MERCHANTS.
APEX Not Responsible for Performance of its Drivers or its Vendor/Merchants.
Our Services and App enable connections between our Users to contract for Packs; however APEX has no control over and is not responsible for the performance, actions or inactions of any User, whether identified through our Services, our App, in public, private, or offline interactions, or otherwise. That’s why we rely on YOU, our Users, to follow some rules to keep the APEX community safe, friendly and helpful for all!
Most importantly, you need to know that every time you use the App or Services, you expressly agree, represent and warrant that, at the time of each such use:
VENDORS/MERCHANTS SHOULD ALWAYS CHECK A DRIVER’S IDENTIFICATION AND MATCH IT TO THE DRIVER’S INFORMATION IN THE APP PRIOR TO HANDING OVER THEIR PACK.
ALL USERS ACKNOWLEDGE AND AGREE THAT BY USING OUR APP AND SERVICES, THEY MAY BE EXPOSED TO UNKNOWN THIRD-PARTIES AND CONTENTS IN PACKS THAT MAY BE OR ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE.
Restrictions on Pack Contents
Vendor/Merchants are prohibited from including in any Pack, and all Drivers are prohibited from knowingly accepting, picking-up, carrying or delivering any Pack containing the following “Prohibited Items”:
ANY DRIVER DISCOVERING A PROHIBITED ITEM IN A PACK SHALL IMMEDIATELY NOTIFY APEX AT SUPPORT@APEXMOBILEAPP.COM FOR FURTHER DIRECTION.
ANY DRIVER DISCOVERING AN UNDISCLOSED LIVE ANIMAL OR A PROHIBITED ANIMAL IN A PACK SHALL IMMEDIATELY NOTIFY APEX AT SUPPORT@APEXMOBILEAPP.COM FOR FURTHER DIRECTION.
It is every Driver’s and Vendor/Merchant’s duty and obligation to know and comply with all applicable federal and state laws relating to the pick-up and delivery locations of any Pack and all items contained in a Pack, whether a Special Item or not, including without limitation those laws governing the transportation of items over State lines, prohibiting the transportation or shipment of certain items both within a State and between States, restricting the amounts of certain items that can be shipped, and age restrictions. APEX has no liability or responsibility if a Driver or Vendor/Merchant fails to comply with these T&C or all applicable laws with respect to the inclusion or acceptance of any items contained in a Pack or during the performance of the Pack.
APEX is not responsible for the contents or loss of any Prohibited Item or any undisclosed Special Item. APEX reserves the right to dispose of any APEX Prohibited Item in its sole discretion and reserves all rights to instruct its Drivers on how to dispose of any APEX Prohibited Item, including delivery to the proper authorities.
APEX HAS AND TAKES NO RESPONSIBILITY OR LIABILITY TO EITHER DRIVERS OR VENDORS/MERCHANTS FOR THE INCLUSION OF ANY PROHIBITED ITEMS IN ANY PACK OR A VENDOR/MERCHANT’S FAILURE TO DISCLOSE A SPECIAL ITEM OR LIVE ANIMAL OR A DRIVER’S OR VENDOR/MERCHANT’S FAILURE TO COMPLY WITH ALL LAWS APPLICABLE TO IT.
Driver’s Obligations With Respect to Confidential Information
During the performance of Packs, Drivers will have access to the “Confidential Information” of many third-parties, including without limitation, the Confidential Information of APEX, Vendor/Merchants, and/or Pack recipients. “Confidential Information” means all information, whether oral, written, whether given via the Services, App, electronic media or otherwise, to which a Driver is given access to, or is made available to the Driver in connection with the performance of Packs, including without limitation names, addresses, telephone numbers and other information which may be used to specifically identify a person (“Personally Identifiable Information”), and health information protected under the Health Insurance Portability and Accountability Act (“HIPPA” and “Protected Health Information”). Confidential Information shall include, without limitation, all information regarding APEX’s personnel or customer information of APEX and/or Vendor/Merchants of which a Driver becomes aware.
APEX and Drivers have special obligations with respect to the protection Personally Identifiable Information and Protected Health Information and a Driver is responsible for both knowing those obligations and complying with the same. Failure to meet these obligations will result in the Driver’s permanent removal from the platform and the Driver shall be prosecuted to the fullest extent of the law.
Protected Health Information
If a Driver delivers Packs containing prescriptions, medicines or other medical documents, the Driver has access to Protected Health Information. APEX and Drivers are under a strict obligation not to use or disclose the Protected Health Information of anyone except as necessary to perform and deliver Packs. In addition, these Drivers and must comply with all federal, state and local laws, including the Health Insurance Portability and Accountability Act, as amended, and all regulations and agency guidance applicable to “business associates”. To learn more about complying with these regulations, please clink on the below link:
DURING THE PERFORMANCE OF PACK YOU, MAY AND/OR WILL GAIN KNOWLEDGE OF THIRD PARTIES’ CONFIDENTIAL, PROPRIETARY, PERSONALLY IDENTIFIABLE AND/OR PROTECTED HEALTH INFORMATION. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE SUBJECT TO A STRICT DUTY TO MAINTAIN THE ABSOLUTE CONFIDENTIALITY OF ALL SUCH INFORMATION AND YOU UNDERSTAND THAT YOU MUST NOT BE DISCLOSED TO ANY OTHER PERSON OR USED FOR ANY OTHER REASON THAN TO PERFORM PACK UNDER ANY CIRCUMSTANCES.
Other Driver’s Responsibilities
Permits, Auto Insurance and Health Insurance
Because Drivers act as their own employer in providing Services via the APEX App, APEX does not, and has no responsibility to, provide or pay for any permit, license or insurance a Driver may need or may be advisable, to perform services via the APEX App. Many states require a Driver to be a certain age, and have permits and/or licenses to carry certain Packs. Additionally, many insurance companies will require a Driver to have some level of commercial insurance if using a personal vehicle for business purposes.
Drivers also need to know that APEX does not provide health insurance or any other compensation to Drivers if they are hurt or injured while performing a Pack and all Drivers are required to have adequate health insurance prior to performing a Pack.
It is a Drivers’ responsibility to know what auto insurance, health insurance, licenses and permits are required or recommended and to procure the same prior to offering on Packs.
You expressly acknowledge that APEX does not provide automobile liability or health insurance to Drivers and is not responsible for paying for any liability that may arise from a Driver’s performance of a Pack, including any bodily injury or damage to property caused by or to the Driver while on a Pack.
A DRIVER MUST HAVE THE REQUIRED INSURANCE, LICENSES AND PERMITS TO CARRY ALL PACKS AND ITEMS CONTAINED IN PACK WHETHER OR NOT LISTED AS A SPECIAL ITEM.
ALL DRIVERS SHOULD CHECK WITH PROFESSIONALS TO ENSURE THAT YOU HAVE THE REQUIRED INSURANCE, LICENSES AND PERMITS BEFORE YOU OFFER FOR THE PACK.
APEX HAS NO RESPONSIBILITY OR LIABILITY FOR ANY DRIVER OR VENDOR/MERCHANT NOT HAVING THE PROPER AUTHORITY, PERMITS, LICENSES OR INSURANCE TO ENTER INTO THE TRANSACTIONS AGREED UPON.
Vendor/Merchant Open Box Policy
APEX encourages the use of minimal packaging both to help our environment and so our Drivers know what they are taking along on their ride. When packaging is required or desired, APEX supports and strongly encourages its Drivers and Vendor/Merchants to always use an Open Box Policy.
APEX’s Open Box Policy means our Vendor/Merchants should always leave packaging open so that a Driver may inspect the contents before leaving with the Pack. If a Vendor/Merchant doesn’t leave the packaging open, a Driver always has the right to require a Vendor/Merchant to open packaging to inspect items before leaving with the Pack. It’s a best practice for driver to take a picture of pack when pick up and drop off.
New In Box Items
If all or part of a Pack contains new-in-box items that have been pre-packed by the Vendor/Merchant and are not open for a Driver to inspect, a Driver has the responsibility to inspect the outside of the packaging, note any damage (it is easiest to take a picture and send it to firstname.lastname@example.org), and wait for instructions from APEX on what to do next with the damaged Pack.
No matter whether the Pack is pre-packed or open for inspection, if a Driver does not note any damage to an item in the Pack while picking the Pack up, it will be assumed that the damage will have been caused while in the Driver’s possession and THE DRIVER WILL BE LIABLE THEREFOR.
A Driver is NEVER under an obligation to take or bring anything that hasn’t been inspected and can always cancel the Pack without penalty if ANY Vendor/Merchant does not allow you to inspect or gives you a hard time about asking to inspect. It’s a best practice for driver to take a picture of pack when pick up and drop off.
Packing Your Packs Generally
Even though we love for your cargo to go commando, Vendor/Merchants have the responsibility to ensure that no or minimal packaging is proper for the item being sent. APEX is not liable for loss or damage to any Pack if it is not properly packed to withstand transport, or to ensure the safety and integrity of the item or in compliance with all applicable laws.
All packaging for such items should be based on the characteristics of the item, in the sole discretion of the Vendor/Merchant. APEX cannot know what packaging is necessary for any item you send. Please use your common sense when packing your Pack.
APEX wants you to feel confident that your Pack is in good hands. APEX will reimburse a Vendor/Merchant for loss or damage arising from theft or property damage to our Vendor/Merchants’ items of personal property during a Pack and arising directly from a Driver’s negligence, up to a maximum of $100.00 per Pack.
The Vendor/Merchant must declare the value of all items in the Pack and comply with APEX’s other requirements when initiating the Pack in the App, if necessary including taking a picture of all items included in a Pack. The Vendor/Merchant must notify and provide to APEX both any packaging used by the Vendor/Merchant for the damaged item, proof of value of the damaged item, and where applicable, a satisfactory police report.
PLEASE BE AWARE THAT NO MATTER WHAT TOTAL VALUE YOU DECLARE FOR YOUR PACK OR ANY INDIVIDUAL ITEM(S) CONTAINED IN SUCH PACK, APEX’S MAXIMUM REIMBURSEMENT TO YOU FOR LOSS OR DAMAGE TO ANY OR ALL ITEMS IN THE PACK IS $100.00
Vendors/Merchants sending any item(s) with a value exceeding APEX’s maximum coverage do so at their own risk. APEX will not reimburse any Vendor/Merchant for any Pack or the item(s) in the Pack in excess of APEX’s maximum limits, no matter the item(s) actual value.
Additionally, APEX is not liable for loss and/or damage to any Pack or any item(s) therein if the item(s) are not properly packed to withstand transport.
Notify APEX Support
A Vendor/Merchant, you must notify APEX Support at email@example.com within 48 hours of the Pack being delivered.
APEX will notify you of its decision and the amount to be paid to you. After you sign a simple release, APEX will issue you a check, credit your PayPal account, or replace the item for you, all at APEX’s option. That decision is final and cannot be appealed.
Cancelations and No-Shows
Cancelation by Vendor/Merchants
If a Vendor/Merchant needs or wants to cancel a Pack, please cancel the request as soon as possible. This will notify the Driver and free them up to accept other Packs from other Vendor/Merchants. To cancel a Pack, tap Cancel on the Pack Details screen within the APEX Application.
What Happens When a Vendor/Merchant Cancels?
Once a Pack accepted by a driver. A Pack is deemed canceled if the Vendor/Merchant cancels the Pack at 5 (five) minutes before the assigned pick up time (“Cancelation“). If a Vendor/Merchant Cancelation occurs, a $5 cancelation fee is automatically charged to the Vendor/Merchant’s account. Part of this amount will compensate driver time and expense to the pick up location. APEX will charge a Vendor/Merchant $5 for each canceled Pack.
A Vendor/Merchant will not be charged a cancelation fee if they cancel a Pack due to a Driver’s No-Show, or Cancelation or if they cannot contact a Driver during the performance of their Pack.
Cancelation by Drivers
If a Driver needs or wants to cancel a Pack, please cancel the Pack as soon as possible. This will notify the Vendor/Merchant and allow them to contact another Driver to accept the Pack. To cancel a Pack, tap Cancel on the Pack Details screen within the APEX Application.
What Happens When A Driver Cancels or is a No Show?
As with the Vendor/Merchant, a Pack is deemed canceled if the Driver cancels the Pack after accepting the Pack (“Cancelation“). A Driver will be considered a No-Show if he/she fails to arrive at the pick-up location more than 15 minutes after the agreed pick-up time without calling, messaging or otherwise contacting the Vendor/Merchant direct number and the Application (“No-Show“). If a driver Cancelation occurs, a $5 cancelation fee is automatically charged to the driver’s account. Part of this amount will compensate Vendor/Merchant inconvenient. APEX will charge driver $5 for each canceled Pack.
Actions Leading to Suspension and/or Deactivation and/or Permanent Termination of Accounts
Without limiting other remedies, APEX may suspend, deactivate, and/or terminate your participation in the Services, remove your information from our databases, and warn our community of your actions, if you breach the terms of the T&C or any Driver or Vendor/Merchant Agreement to which you are subject; we are unable to verify or authenticate any information you provide to us; we believe that your actions may cause financial loss or legal liability for you, our Users or APEX, its affiliates, or third party providers, or subject APEX or you or any other User to regulation by any state or local government or regulatory agency; or if we suspect that you have engaged in fraudulent or harmful activity in connection with the APEX Services or App.
ALL APEX ACTIONS TAKEN WITH RESPECT TO THE SUSPENSION, DEACTIVATION AND/OR TERMINATION OF YOUR ACCOUNT MAY BE TAKEN IN APEX’S SOLE DISCRETION, WITH OR WITHOUT NOTICE, AND WITHOUT LIABILITY TO YOU
Other actions that may lead to APEX suspending, deactivating or terminating your account are:
Driver Cancelations and No Shows
APEX may suspend or deactivate driver account upon your 3rd Cancelation or No Show.
APEX may suspend or deactivate your account if your overall rating falls below 4-stars.
Loss of Items
APEX may suspend or deactivate the account of a Driver if the Driver completes 2 or more Packs with “loss”; or if a Driver has 2 or more “mysterious disappearances” of an item in a Pack.
Fraudulent Activity, Shipments of Prohibited Items, Repeat Infringers
APEX may suspend, deactivate and/or permanently terminate and delete your account if you or your account is the subject of suspected fraudulent or illegal activity or if Prohibited Items are discovered in your Pack.
Additionally, we may, in appropriate circumstances and at our sole discretion, suspend, deactivate or permanently terminate and delete the accounts of any User who may be a repeat infringer of these T&C or any of our other terms or policies.
APEX reserves the right to terminate any User’s account that has been inactive for 60 days.
YOU CAN LOSE YOUR USER NAME AND PERSONA AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICES, APP OR ANY PORTION THEREOF, AND APEX IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY WITHHOLD PACK PAYMENTS, LIMIT, SUSPEND OR TERMINATE YOUR SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES, AND THEIR CONTENT (INCLUDING YOUR OWN), SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT ANY USER FROM ACCESSING OUR SERVICES, APP OR ANY PORTION THEREOF IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
APEX may reactivate any Driver or Vendor/Merchant account suspended or deactivated by APEX in its sole discretion.
Billing and Payment
APEX is not and will not be a party to the agreements between Users for a Driver to perform delivery services using our Services and App, including the Vendor/Merchant’s agreement to pay the Driver.
Therefore, all Users of our Services and App are required to provide their credit card or bank account details and such other information needed to vet the User to APEX.
Payment, Withholding and Release
If chosen, a Driver is solely responsible for completing delivery of the Pack as agreed upon BEFORE being paid. Within 24 hours after a Vendor/Merchant receives confirmation through the Services and/or App that their Driver has completed the Pack, the Vendor/Merchant will authorize APEX to provide the Vendor/Merchant’s payment details to the PSP for processing of Pack Payment. APEX, in its sole discretion, may place a hold on a Driver’s Pack Payment if the delivery of the Pack is not provided expressly in accordance with the Vendor/Merchant’s directions set forth in the App and request for Services, and the T&C, and/or APEX determines it otherwise necessary or advisable to place a hold on such Pack Payment, including without limitation if APEX has any suspicion or reason to believe that a Driver or Vendor/Merchant has breached these T&C, including, without limitation by (1) sending or accepting items on the Prohibited Item list; (2) establishing an account with APEX or entering into a Pack with the purpose of defrauding APEX or any other party; (3) using a stolen credit card or any other false information to establish an account with APEX or pay for a Pack; or (4) otherwise engaging in any questionable or fraudulent activity with respect to the APEX Services or App.
APEX will release the Pack Payment to a Driver upon establishing the validity of the accounts and Packs under suspicion, in APEX’s sole but reasonable discretion.
YOU HEREBY GRANT APEX PERMISSION THE RIGHT AND AUTHORITY TO FULLY INVESTIGATE AND PROSECUTE VIOLATIONS OF ANY OF THESE T&C (INCLUDING ALL DOCUMENTS AND AGREEMENTS REFERENCED OR INCORPORATED HEREIN) TO THE FULLEST EXTENT OF THE LAW, INCLUDING INVOLVING, COOPERATING OR DISCLOSING PERSONAL INFORMATION TO LAW ENFORCEMENT AUTHORITIES IN CONNECTION THEREWITH.
Disclaimer of Warranties and Limits on APEX’s Liability to You
NEITHER APEX NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF OUR SERVICES OR APP AND APEX AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS ARE NOT BE LIABLE FOR ANY LOSS, CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES OR THE APP. BY USING THE SERVICES OR APP YOU THEREBY RELEASE APEX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS FROM ANY LIABILITY RELATED TO ANY USE OF OUR SERVICES, APP OR THE CONDUCT OR MISCONDUCT OF A USER.
The Services and App are provided to you strictly on an “as is” basis without warranties of any kind, either expressed or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement and all warranties are hereby disclaimed by APEX to the maximum extent permitted by applicable law. APEX makes no warranties or representations about the accuracy or completeness of any content provided through the Services or App or the content of any websites linked to the Services and App.
APEX does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Services, App or any hyperlinked website or featured in any banner or other advertising and APEX will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services, other than as provided herein.
Without limiting the foregoing, neither APEX nor its affiliates or licensors warrant or guarantee:
Limitations of Liability
APEX EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS SERVICES OR APP. USE OF OUR SERVICES AND APP ARE ENTIRELY AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT APEX IS ONLY WILLING TO PROVIDE THE SERVICES AND APP IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES.
APEX CURRENTLY DOES NOT AND HAS NO OBLIGATION TO ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY USER TO PROVIDE OR COMPLETE A PACK AND YOU EXPRESSLY WAIVE AND RELEASE APEX FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO OUR USERS OR A PACK. YOU ACKNOWLEDGE THAT USERS PROVIDING PICK-UP, CARRY AND DELIVERY SERVICES REQUESTED USING THE APEX SERVICE AND APP MIGHT NOT BE PROFESSIONALLY LICENSED OR PERMITTED AND MAY NOT HAVE THE PROPER INSURANCE. APEX WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN ANY OF OUR USERS. YOU EXPRESSLY WAIVE AND RELEASE APEX FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE APP OR SERVICES, OR IN ANY WAY RELATED TO ANOTHER USER OR ANY OTHER THIRD PARTY INTRODUCED TO YOU BY THE APP OR SERVICES, OR OTHERWISE.
THEREFORE, YOU AGREE NOT TO HOLD APEX, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICES OR APP, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY APEX OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL APEX, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE TO YOU, ANOTHER USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES OR THE APP, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN A DRIVER, VENDOR/MERCHANT, ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS A USER OF THE SERVICES OR APP (INCLUDING FOR PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, EVEN IF ALL PARTIES HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT APEX OR ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU OR TO YOU DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
APEX owns all intellectual property rights in and to the Services and the App, including but not limited to database rights, copyright, design rights, trademarks and other similar rights, whether or not currently registered, wherever existing in the world together, with full rights to apply for protection of the same, and your use of the Services or App gives you no rights therein.
App and Services License
APEX owns and retains ownership in the APEX Services and App, and all intellectual property and proprietary rights therein. Contingent upon your compliance with the terms and conditions of the T&C, APEX hereby grants to you a limited, non-transferable, non-exclusive, non-assignable, revocable license to use the Services and Application on any Android Device that you own or control and/or any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the “Usage Rules“). This license does not allow you to use the Services or App on any Device that you do not own or control. The terms of the license will govern any upgrades provided by APEX that replace and/or supplement the APEX Services or App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
APEX reserves the right to stop offering and/or supporting our Services, App or any particular portion or part of our Services or App at any time, at which point your license to use the Service, Application or a part thereof will be automatically terminated. In such event, APEX shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Services or App.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the App in any way; (ii) modify or make derivative works based upon the Services or the App; (iii) create Internet “links” to the Services or “frame” or “mirror” any App on any other server or wireless or Internet-based device; (iv) reverse engineer or access the App to copy any ideas, features, functions or graphics of the Services or App whether to build competitive products or services using similar ideas, features, functions or graphics of the Services or App, or otherwise; (v) launch an automated program or script that unduly burdens, interferes, disrupts, hinders the integrity, operation and/or performance of the Services or App (or the data contained therein) in any way or for any User, including but not limited to Trojan horses, viruses, worms, web spiders, web crawlers, web robots, web ants, web indexers, bots, or any program which may make multiple server requests per second, or send and/or store in our App; (vi) attempt to gain unauthorized access to the App or Services or its related systems or networks, or circumvent or attempt to defeat any security or verification measures relating to use of the Services or App; or (vii) use our Services or App to send spam or otherwise duplicative or unsolicited messages, send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
Licenses Granted by APEX in Content
Subject to your compliance with the T&C, including without limitation Driver and Vendor/Merchant Agreements, APEX grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Content that APEX makes available through the Services or App, including any Content licensed from a third party (“APEX Content“), but excluding any Content that a User posts, uploads, publishes, submits or transmits to be made available through the Services or App, including any questions, comments, suggestions, ideas, feedback or other information about the APEX Services or App (“User Content” and with APEX Content collectively, “Collective Content“); and (ii) to view any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense these license rights granted by APEX above.
APEX Content may be used solely for your personal and non-commercial purposes. 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 Services, App or Collective Content, except as expressly permitted in the T&C. 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 the T&C.
You agree that APEX has no responsibility to, and may not, monitor your access to or use of Collective Content or review or edit any Collective Content. APEX reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that APEX, at its sole discretion, considers to be in violation of these T&C or otherwise harmful to the Services or App.
License Granted by User
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available or posting any User Content on or through the Services or App, you hereby grant to APEX a worldwide, irrevocable, perpetual, exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, disseminate and otherwise exploit such User Content. APEX shall be entitled to the unrestricted use of all User Content for any purpose, commercial or otherwise, without acknowledgment or compensation to you. APEX claims no ownership rights in any User Content and nothing in the T&C will be deemed to restrict any rights that you may have to use and exploit your User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Services or App. By posting or making available any User Content, you represent and warrant that: (i) you are the sole and exclusive owner of all User Content that you make available or post or you have all right, license, consent and release that are required to grant to APEX full rights in such User Content, as contemplated under the T&C; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or APEX’s use of the User Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
APEX respects copyright law and the intellectual property of others and expects its Users to do the same. APEX will terminate Users or other account holders who repeatedly infringe or are reasonably believed to be repeatedly infringing the rights of copyright holders. If you believe, in good faith, that any materials on the Services or the App infringe upon your copyrights, please send the following information to APEX’s Copyright Agent at firstname.lastname@example.org:
Other Third Party Interactions
During use of the App and Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the App or Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. APEX and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. APEX does not endorse any sites on the Internet that are linked through the Services or App, and in no event shall APEX or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. APEX provides the App and Services to you pursuant to the terms and conditions in these T&C provided that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services. APEX has no responsibility or liability arising from any agreements between you and such third party providers.
APEX may rely on third party advertising and marketing supplied through the App or Services and other mechanisms to subsidize the App or Services. By agreeing to these terms and conditions you agree to receive such advertising and marketing. If you do not want to receive such advertising you should notify us in writing. APEX reserves the right to charge you a higher fee for the Services or App should you choose not to receive these advertising services, if offered. This higher fee, if applicable, will be posted on APEX’s website located at https://www.apexmobileapp.com.
All of our Users are automatically opted-in to receive SMS messaging when signing up for our Services and App and must agree to receive SMS messages in order to use our Services and App. If you change your mobile phone service provider all SMS messaging services from APEX may be deactivated and you will need to re-enroll in the SMS notification service. APEX reserves the right to cancel the notification service at any time.
Notices to You
APEX may give Users general notice regarding the Services, the App, these T&C, Drivers or Vendor/Merchants Agreements, or otherwise via electronic mail to your email address on record in APEX’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in APEX’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to APEX (such notice shall be deemed given when received by APEX) at any time by email or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to APEX at 2035 Sunset Lake Rd , Suite B-2. Newark, DE 19702, addressed to the attention of: Head of Operations.
You may not assign your responsibilities, duties and obligations (or any portion thereof) as set forth in these T&C, including in any Driver or Vendor/Merchant Agreement, as applicable, to any party without the prior written approval of APEX in each instance. Any purported assignment in violation of this section shall be void.
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Services nor App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Services and App, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
No joint venture, partnership, employment, or agency relationship exists between you, any other User, APEX or any third party provider as a result of a User entering into a Driver or Vendor/Merchant Agreement or their use of the Services or App. If any provision of these T&C or any Driver or Vendor/Merchant Agreement is held to be invalid or unenforceable, such provision shall be revised as minimally as possible to validate or enforce the same, as well as the original intent of these T&Cs, and the remaining provisions shall be enforced to the fullest extent under law. The failure of APEX to enforce any right or provision in these T&C, any Driver or Vendor/Merchant Agreement shall not constitute a waiver of such right or provision unless specifically acknowledged and agreed to by an authorized person from APEX in writing. Unless APEX has entered into a separate written agreement with a User addressing their use of the Services and App, these T&C, and all terms, conditions and agreements referenced herein, including without limitation the Drivers and Vendor/Merchants Agreements and the Dispute Resolution/Arbitration Agreement, comprise the entire agreement between our Users and APEX superseding all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between a User and APEX regarding a User’s use of the APEX Application and Services.
APEX Drivers Agreement
This APEX Drivers Agreement is a part of APEX’s Terms and Conditions (“T&C”) located and is incorporated therein by this reference. By using our Services or App, each Driver agrees, represents, warrants, acknowledges and agrees that:
APEX Vendor/Merchants Agreement
This Vendor/Merchants Agreement is a part of APEX’s Terms & Conditions (“T&C”) and is incorporated therein by this reference. By using our Services or App, each Vendor/Merchant agrees, represents, warrants, acknowledges and agrees that:
Dispute Resolution / Arbitration Agreement
This Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. § 1, et seq.) and evidences a transaction involving commerce. Any dispute as to whether the Federal Arbitration Act applies to this Agreement and the integrated Arbitration Provision, including whether this Arbitration Provision is exempt from the Federal Arbitration Act as a matter of law, shall be resolved exclusively by a court of competent jurisdiction. However, in all instances where the applicability of the Federal Arbitration Act depends in whole or in part on whether a Driver is properly classified as an independent contractor, that classification issue will be decided exclusively by an arbitrator in accordance with this Arbitration Provision. If the Federal Arbitration Act is found not to apply, the arbitration laws of the State(s) in which Driver performed delivery services for Vendor/Merchants shall apply for all Covered Disputes between Driver, and Vendor/Merchants; and the arbitration laws of the State of Georgia for all other Covered Disputes. The provisions of this Arbitration Provision shall remain in force after the Parties’ contractual relationship ends. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse any User or APEX from utilizing any procedure for resolution of complaints established in the T&C, including without limitation Driver and Vendor/Merchant Agreements, and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or any other forum other than arbitration, and requires all such disputes to be resolved on an individual basis and only by an arbitrator through final and binding arbitration and not by way of a court or jury trial, nor a proceeding before any other governmental body, and not by way of a class or collective action or proceeding.