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

Prohibited Items

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:

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/business-associates/index.html

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.

Packaging

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 support@apexmobileapp.com), 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 support@apexmobileapp.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.

Negative Ratings

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.

Inactive Accounts

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.

Reactivation

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.

No Warranties

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.”

Intellectual Property

Ownership

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.

Copyright Policy

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 support@apexmobileapp.com:

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.

SMS Messaging

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.

Assignment

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.

Export Control

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.

General

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:

  1. Driver is a third-party independent contractor with respect to any and all Packs performed and is not and shall not be deemed to be an employee, agent or representative of Company.  No services provided by Driver via the APEX App nor any action taken pursuant to these T&Cs shall create an employment relationship between APEX and Driver or Driver and any Vendor/Merchant.  No Driver is entitled to any employment rights or benefits from, or sponsored by, APEX or any Vendor/Merchant, including, without limitation, employee, pension, health or welfare benefit plans, programs or arrangements of APEX, Vendor/Merchants or their affiliates or subsidiaries. Driver will not make any representations regarding APEX, the Services or the App or his/her status as a Driver.  Driver shall not have any right to enter into any contract or commitment in the name of, or on behalf of, or to bind APEX or any Vendor/Merchant in any respect whatsoever.
  2. Under NO circumstances may Driver provide delivery services via the APEX platform in excess of 40 hours per calendar week.  Driver shall be fully liable for, and shall first pay directly, or second reimburse, APEX for any additional fees, charges or other obligation (monetary or otherwise) placed on APEX, whether for overtime wages, employee benefits, workman’s compensation, or otherwise, if Driver breaches this provision. Driver hereby expressly agrees not to seek non-voluntary compensation from APEX, a Vendor/Merchant or any other third-party, and waives any rights to, and fully releases and indemnifies APEX against, any claims against APEX, a Vendor/Merchant or any third party relating to benefits, overtime wages, or the like, in connection with Driver.
  3. Driver is at least 21 years of age.  Driver possesses a valid driver’s license and has all other required licenses, permits, approvals and authorizations to accept and complete a Pack as contracted through the Services and the App and will not accept such Packs without possessing valid licenses, permits, approvals or authorizations for the same.
  4. Driver owns, or has the legal right to operate, the vehicle used in a Pack, and has a valid policy of auto liability insurance covering any vehicle used during a Pack with coverage in types and amounts required by, or consistent with, all applicable legal requirements and industry standards (including without limitation commercial auto insurance when applicable) and is named or scheduled on the insurance policy.  Any vehicle used during a Pack shall meet all applicable industry safety standards and statutory, federal DOT and state department of motor vehicle requirements.  Driver must have in his possession at all times during a Pack proof of all required licenses and insurance.  DRIVER IS SOLELY RESPONSIBLE FOR ANY AND ALL LIABILITY, WHICH RESULTS FROM OR IS ALLEGED AS A RESULT OF THE OPERATION OF THE VEHICLE USED DURING A Pack, INCLUDING, BUT NOT LIMITED TO PERSONAL INJURIES, DEATH AND PROPERTY DAMAGES.  Driver is responsible for and will make all necessary contacts with insurance carriers in the event of a motor vehicle accident or claims against a Driver’s insurance policy for damage or injury during a Pack.
  5. All vehicles used by Driver during a Pack shall be in good operating condition and, on the outside, clean and well maintained without material physical damage, and on the inside smoke and odor free, and free of excessive pet dander, at all times during the Pack.  Vehicles will not display any indication of services being performed.
  6. Driver shall have a well-groomed appearance, and will not wear clothing displaying the logo or brand of any company or entity, whether or not belonging to such Driver’s employer, or other clothing, which could be deemed offensive. Drivers shall not smoke at any time during a Pack, including on the way to pick up a delivery.  Drivers, while providing Services, shall not participate in any activities that will take the focus off their assigned responsibilities or be under the influence of any illegal drugs and/or alcohol. Drivers shall abide by all laws regarding talking or texting while driving.
  7. Drivers shall not enter Pack recipient’s home, solicit tips from Pack recipients nor enter or access any secure, private or employee only areas in any place of business (including airports) while delivering a Pack under any circumstances.
  8. Drivers are required to visually inspect Packs prior to leaving with the Pack and must take pictures of any visible damage.  If Driver fails to inspect it is done at river’s own risk.  Drivers will be held liable for property damage that occurs between pick up and drop off if no evidence of prior damage exists.
  9. Driver will not discriminate or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
  10. Driver will not collect or store the name, address, phone number or other personal or confidential information of any User or Pack recipient and will not use any personal or confidential information of any User or Pack recipient except as necessary to perform and complete the performance of the Pack.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE SUBJECT TO A STRICT DUTY TO MAINTAIN THE ABSOLUTE CONFIDENTIALITY OF SUCH PERSONAL INFORMATION AND YOU UNDERSTAND THAT ALL SUCH INFORMATION MUST NOT BE DISCLOSED TO ANY OTHER PERSON.

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:

  1. Vendor/Merchant is at least 21 years of age and has all right and authority to lawfully use the Services or otherwise has the full right and authority to contract for the Pack and send all items contained in a Pack.  Vendor/Merchant will specifically list, photograph and disclose to the Driver, prior to the Driver accepting the Pack, all items included in the Pack will not include in any Pack any “Prohibited Items” as listed in the T&C, whether consented to by a Driver or not.  Vendor/Merchant acknowledges and agrees that APEX is not responsible for the contents or loss of any Prohibited Item.  APEX reserves the right to dispose of the Item in its sole discretion and reserves all rights to instruct its Drivers on how to dispose of the Item, including delivery to the proper authorities.  Vendor/Merchant acknowledges and agrees to APEX’s Open Box Policy and will allow a Driver to visually inspect all items in a Pack prior to departing with the Pack.
  2. Unless Vendor/Merchant has a separate special written agreement with APEX, Vendor/Merchant will not include in any Pack any “Special Item”.  Vendor/Merchant acknowledges and agrees that APEX is not responsible for the contents or loss of any so included Special Item.  APEX reserves the right to dispose of any unauthorized Special Item in its sole discretion and reserves all rights to instruct its Drivers on how to dispose of the Item, including delivery to the proper authorities.
  3. Vendor/Merchant has the responsibility to properly pack all items in a Pack, sufficient to withstand transport, ensure the safety and integrity of the item and in compliance with all applicable laws.  Vendor/Merchant acknowledges and agrees that the APEX’s maximum liability under $100 per occurrence.
  4. Vendor/Merchant will only contract for or arrange a Pack (or other similar services) with a Driver through APEX’s Services and App and will not knowingly engage a Driver who has delivered a Pack for Vendor/Merchant prior to perform delivery services outside of the APEX App.
  5. Vendor/Merchant will not discriminate or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.

Dispute Resolution / Arbitration Agreement

  1. ARBITRATION OF CLAIMS: Should any “Covered Dispute” (as defined below) between or among any User (including but not limited to Drivers and Vendor/Merchants) and/or APEX (each a “Party”) not be resolved after 30 days discussion between the disputing Parties (or such longer time as may be mutually agreed upon), the disputing Parties agree to resolve such Covered Dispute as described in this Arbitration Provision.

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.

  1. Claims Covered By Arbitration Provision: Unless excluded below (including without limitation in Section 1(C) and Section 2, below), claims involving the following disputes shall be subject to arbitration under this Arbitration Provision regardless of which Party (Driver, Vendor/Merchant, or APEX) asserts a claim against another Party or any of its agents, employees, affiliates, successors, assigns, or subsidiaries (each of which are intended third party beneficiaries of this Arbitration Provision): (1) disputes arising out of, related to, subject to, or connected with this the T&C, including without limitation the Driver and Vendor/Merchant Agreements; (2) disputes arising out of or related to the actual or any alleged relationship between or among Driver, Vendor/Merchant and APEX, including termination of the relationship and a Driver’s classification as an independent contractor; (3) disputes arising out of or relating to Driver’s performance of delivery services to Vendor/Merchants; (4) disputes arising out of or relating to the interpretation or application of this Arbitration Provision, including the scope, enforceability, revocability, validity, or conscionability of the Arbitration Provision or any portion of this Arbitration Provision or whether the Arbitration Provision or any portion of the Arbitration Provision is void or voidable; (5) disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, meal or rest periods, expense reimbursement, uniform maintenance, training, termination, discrimination or harassment, (6) claims arising under the Fair Credit Reporting Act, Defend Trade Secrets Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981, the Rehabilitation Act, the Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, 8 U.S.C. § 1324b (unfair immigration related practices), the Pregnancy Discrimination Act, Equal Pay Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state or local statutes or regulations addressing the same or similar subject matters, and (7) all other federal, state or local statutory and legal claims (including without limitation torts) arising out of or relating to Driver’s relationship with APEX and/or Vendor/Merchant or the termination of that relationship (each a “Covered Dispute”).
  2. Third-Party Beneficiaries to Arbitration Provision: APEX, Driver, and Vendor/Merchant also understand and agree that any Vendor/Merchant with whom Driver contracted with to perform delivery services to, as well as APEX’s and Vendor/Merchant’s agents, employees, affiliates, successors, assigns, subsidiaries and subcontractors, are intended third party beneficiaries of this Arbitration Provision; as is any third party administrator APEX, Vendor/Merchant and/or Driver used to administer the relationship or facilitate payment between APEX, Vendor/Merchant and Driver.
  3. Limitations on Application of This Arbitration Provision: This Arbitration Provision does not apply to the following claims and such claims are not Covered Disputes: (1) claims related to damaged Packs, (2) claims for workers compensation, state disability insurance, or unemployment insurance benefits; and (3) claims against Vendor/Merchants with separate written agreements addressing their use of the Services and App. This Arbitration Provision does not prevent a Driver from filing unfair labor practice charges with the National Labor Relations Board (www.nlrb.gov) Neither APEX nor Vendor/Merchant will retaliate against a Driver for filing such a charge. Nothing in this Arbitration Provision prevents a User from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.  This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision.  Nothing in this Arbitration Provision prevents or excuses a Party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration.  APEX and Vendor/Merchant will not retaliate against Driver for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
  4. Additional Claims: Driver, APEX, or Vendor/Merchant may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this Arbitration Provision.  The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law.  All determinations of final relief, however, will be decided in arbitration.  The following claims are also excluded from coverage by this Arbitration Provision: (1) claims that, as a matter of controlling federal law, may not be subject to a mandatory arbitration agreement; and (2) claims asserted in a class action or Fair Labor Standards Act (“FLSA”) collective action that, as of the date of Contractor’s use of the App, Driver joined by becoming a plaintiff or a member of a certified class, having consented as of that date to join a conditionally certified FLSA collective action.
  5. CLASS / COLLECTIVE ACTION WAIVERS: Private attorney general representative actions brought on behalf of the State of California under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law, but a claim a Driver brings on Driver’s own behalf as an aggrieved employee for recovery of underpaid wages (as opposed to a representative claim for civil penalties) is arbitrable. Driver, APEX, and Vendor/Merchant agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective action basis. Accordingly:
  6. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action (“Class Action Waiver”).  The Class Action Waiver will be severable from this Arbitration Provision in any case in which (1) the dispute is filed as a class action and (2) there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction, but a User’s individual claims for relief must be arbitrated under this Arbitration Provision.
  7. There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action (“Collective Action Waiver”). The Collective Action Waiver will be severable from this Arbitration Provision in any case in which (1) the dispute is filed as a collective action and (2) there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable.  In such instances, the collective action must be litigated in a civil court of competent jurisdiction, but a User’s individual claims for relief must be arbitrated under this Arbitration Provision.
  8. Notwithstanding any other clause contained in this Agreement or this Arbitration Provision, any claim that all or part of the Class Action Waiver and/or Collective Action Waiver is invalid, unenforceable, revocable, unconscionable, void or voidable shall be determined only by a court of competent jurisdiction and not by an Arbitrator.
  9. No Party will retaliate or threaten to retaliate against any other Party as a result of such Party filing or participating in a class or collective action in any forum.  However, any Party may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver and Collective Action Waiver, and seek dismissal of such class or collective actions or claims.  The Class Action Waiver and Collective Action Waiver will be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
  10. ARBITRATION PROCEDURE: Unless otherwise stated in this Arbitration Provision, the American Arbitration Association (“AAA”) Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) and the then in effect (available at www.adr.org/arb_med or calling 1-800-778-7879) and the Federal Arbitration Act will govern the interpretation and enforcement of this Arbitration Provision.
  11. A Party who desires to initiate arbitration must provide the other Party with a written Demand for Arbitration as specified in the AAA Rules and do so within the time required by applicable law.
  12. The arbitration will be conducted in Dover, Delaware. If a Party’s claim does not exceed $10,000, the arbitration will be conducted solely on the basis of documents submitted by the disputing Parties to the arbitrator.
  13. In arbitration, the Parties shall have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.  A Party or at a Party’s request the Arbitrator may subpoena witnesses and documents discovery purposes or for the arbitration hearing.  Each Party shall pay the fees for its own attorneys, subject to any remedies to which that Party may later be entitled under applicable law, as determined by the Arbitrator.  Costs incidental to the arbitration, including the Arbitrator’s fees and costs for the meeting site (“Arbitration Costs”), will be borne by the Parties equally, unless otherwise required by applicable law.  The Arbitrator may award any Party any remedy to which that Party is entitled under applicable law, but such remedies shall be limited to those that would be available to a Party in his or her or its individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision.  The Arbitrator shall issue a reasoned decision or award in writing, stating the essential findings of fact and conclusions of law.  Except as may be permitted or required by law, as determined by the Arbitrator if there is a dispute, neither a Party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the Parties or order of the Arbitrator.  A Party may file the Arbitrator’s decision or award in a court of competent jurisdiction for the purpose of seeking confirmation, vacatur, modification or correction of that decision or award.  A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.
  14. APPLICATION TO EXISTING CLAIMS AND CONTROVERSIES: This Arbitration Provision is intended broadly to apply to all controversies covered by this Provision regardless of whether arising before or after this Arbitration Provision becomes effective, and including any existing controversy, as is permitted under Section 2 of the Federal Arbitration Act or other applicable law.
  15. RIGHT TO OPT-OUT OF ARBITRATION:   This Arbitration Provision is not a mandatory component of T&C, including without limitation Driver and Vendor/Merchant Agreements (if any) or a User’s contractual relationship with APEX or Vendor/Merchant.  If a User does not want to be subject to this Arbitration Provision, a User may opt out by notifying APEX in writing of the User’s desire to opt out of this Arbitration Provision.  To be effective, the writing indicating User’s intent to opt out must be dated, signed and submitted to APEX within 30 days of such User’s execution / acceptance of this Agreement, by email to legal@apexmobileapp.com, or U.S. Mail to the Attention of the Legal Department, APEX Mobile App LLC, 2035 Sunset Lake Rd, Suite B-2.  Newark, DE 19702. A User’s writing opting out of this Arbitration Provision will be filed with a copy of T&C, including without limitation Driver and Vendor/Merchant Agreements and maintained by APEX.  If a User does not opt out of this Arbitration Provision within the thirty (30) day period, the User and APEX will be bound by the terms of this Arbitration Provision.
  16. RIGHT TO CONSULT WITH AN ATTORNEY: Agreeing to arbitration is an important business decision.  Users have the right to consult with private counsel of such User’s choice with respect to any aspect of T&C, including without limitation Driver and Vendor/Merchant Agreements, or any claim that may be subject to, this Arbitration Provision.  In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. USERS AND APEX ACKNOWLEDGE AND AGREE THAT SUCH USER AND APEX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.