Effective July 6, 2026
These APEX Terms of Service (the "Agreement") are entered into by and between ApexAVCloud LLC, a Delaware limited liability company with offices at 5009 N Ashland Ave #3E, Chicago, IL 60640 ("APEX", "we", "us", or "our"), and the entity or person placing an order for, or accessing, any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of an organization, you represent that you are authorized to accept this Agreement on behalf of that organization, and all references to "you" or "Customer" refer to that organization.
This Agreement permits Customer to purchase subscriptions to APEX's online software-as-a-service products and related services pursuant to Order Form(s) (defined below) and sets forth the terms and conditions under which those products and services will be provided. This Agreement includes the Acceptable Use Policy, Data Processing Addendum, Service Level Agreement, Support Policy, Product Privacy Notice, and any Additional Product Terms, each incorporated by reference herein.
The "Effective Date" of this Agreement is the earlier of:
(a) Customer's initial access to any Services through any online provisioning, registration, or order process; or
(b) the effective date of the first Order Form referencing this Agreement.
Modifications to this Agreement. From time to time, APEX may modify this Agreement. Unless otherwise specified by APEX, changes become effective for Customer upon renewal of Customer's current Subscription Term, or entry into a new Order Form. APEX will use reasonable efforts to notify Customer of the changes through Customer's account, email, or other means. Customer may be required to click to accept or otherwise agree to the updated Agreement before renewing a Subscription Term or entering into a new Order Form, but in any event continued use of the Services after the updated version takes effect will constitute Customer's acceptance of such updated version. If APEX specifies that changes will take effect prior to Customer's next renewal or new Order Form (for legal compliance, product, or pricing reasons) and Customer objects, Customer may terminate the applicable Subscription Term on written notice to APEX and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date the termination notice was received.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE THE SERVICES. PLEASE READ IT CAREFULLY, INCLUDING THE LIMITATIONS OF LIABILITY IN SECTION 12 AND THE DISPUTE RESOLUTION TERMS IN SECTION 16.3.
1. Definitions
"Affiliate" means any entity under the control of Customer, where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"APEX Agents" means software agents, sensors, telemetry collectors, SDKs, APIs, scripts, and other code or libraries provided by APEX for deployment on Customer's audiovisual devices, network infrastructure, conferencing endpoints, room control systems, or related Customer environments, in order to enable device monitoring, health reporting, configuration management, automation, and other functionality of the Services.
"APEX Apps" means any integrations, connectors, and applications created or developed by APEX or its Affiliates that are made available through APEX's product or a third-party marketplace as designated by APEX.
"APEX Technology" means all right, title, and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, APEX Agents, APEX Apps, and any and all related and underlying technology, materials, and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback.
"AUP" means APEX's Acceptable Use Policy, available at https://apexavcloud.com/legal/acceptable-use or a successor URL, incorporated into this Agreement by reference.
"Beta Offerings" means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.
"Contractor" means an independent contractor or consultant.
"Customer Data" means any data, content, or other information of any type that is submitted to, transmitted to, or generated by the Services by or on behalf of Customer or any User, including without limitation: (a) data, content, or other information submitted, uploaded, instructed to be used for, or imported to the Services by Customer (including from Third-Party Platforms); (b) device telemetry, configuration, health, performance, and event data collected by APEX Agents from Customer's audiovisual estate; (c) project, ticket, asset, vendor, contract, and operational records maintained in the Services; and (d) data provided by or about Users in the course of using the Services.
"Customer Properties" means the audiovisual devices, conferencing rooms, control systems, network infrastructure, administrative portals, and other Customer environments owned, operated, or managed by (or for the benefit of) Customer through which Customer uses the Services.
"Dashboard" means the APEX web-based and application user interface for accessing and administering the Services.
"Documentation" means the technical user documentation provided by APEX with the Services, made available at https://apexavcloud.com/docs or otherwise provided by APEX.
"Feedback" means comments, questions, suggestions, or other feedback relating to any APEX product or service, including, without limitation, integrations with Third-Party Apps. Feedback does not include any Customer Data.
"Integrator" means a Customer that uses the Services to operate, manage, or deliver services to one or more Tenants under multi-tenant features of the Services.
"Intellectual Property Rights" include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country, or other jurisdiction.
"Laws" means all applicable local, state, federal, and international laws, regulations, conventions, and orders, including, without limitation, those related to data privacy, data protection, data transfer, telecommunications, artificial intelligence, employee and workplace monitoring, and the exportation of technical or personal data.
"Order Form" means a written or electronic form referencing this Agreement that is used to order the Services, including, without limitation, an online registration or payment process completed through APEX's website. The Order Form may contain details about your order, the applicable service plan, contracted usage quantity (e.g., Rooms, Tenants, or other usage quantity metric identified in the Order Form), and Subscription Term.
"Room" means a discrete audiovisual environment (e.g., a conference room, huddle space, board room, classroom, or other defined space) tracked as an asset within the Services.
"Sensitive Personal Information" means any of the following: (i) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA") or comparable health information privacy Laws; (iii) personal data of a child under the age of 16; (iv) government-issued identification numbers (including, without limitation, Social Security numbers, passport numbers, and driver's license numbers); (v) biometric or genetic data; or (vi) any other personal data deemed to be in a "special category" or subject to heightened protection under the EU General Data Protection Regulation, the UK Data Protection Act, or comparable data protection Laws of any jurisdiction.
"Services" means APEX's proprietary software-as-a-service platform for audiovisual operations management, including, without limitation, the Dashboard, APEX Agents, APEX Apps, and the products, features, and modules covered under any Additional Product Terms, together with related recommendations, optimizations, and updates made available by APEX.
"Subscription Term" means the term for which Customer subscribes to a Service as set forth on the applicable Order Form.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the net income of APEX.
"Tenant" means a walled-off workspace within the Services that an Integrator uses to manage AV operations for a single end customer or business unit.
"Third-Party App(s)" means a separate, stand-alone application provided by a third party to which Customer subscribes and which Customer chooses to connect to the Services.
"Third-Party Platform(s)" means any software, software-as-a-service, hardware, data sources, or other products or services not provided by APEX that are integrated with or otherwise accessible through the Services (for example, Cisco collaboration systems, Microsoft Teams Rooms, Logitech infrastructure, ServiceNow, and similar AV and IT platforms).
"User" means an employee, Contractor, agent, Tenant administrator, or other individual authorized by Customer to access or use the Services on Customer's behalf.
2. APEX Services
2.1. Services Overview. APEX is a software-as-a-service platform for audiovisual operations management. The Services are designed to enable Customer to inventory, monitor, project-manage, support, and report on its audiovisual estate, and (where applicable) to enable Integrators to deliver AV operations services to their own end customers through multi-tenant features.
2.2. Provision of Services. Each Service is provided on a subscription basis for the Subscription Term designated on the Order Form. Customer will purchase and APEX will provide the specific Services as specified in the applicable Order Form. Some Services may be subject to Additional Product Terms, which are incorporated into and form part of this Agreement.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit (and, in the case of Integrators, for the benefit of its Tenants) and in accordance with this Agreement, the Documentation, and any scope-of-use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Users. If Customer is given API keys, tokens, or credentials to access the Services, Customer will keep them strictly confidential and not share them with any unauthorized person. User credentials are granted to individual, named persons and may not be shared. If Customer accesses the Services using credentials provided by a third party (e.g., a single sign-on provider such as Google or Microsoft), Customer will comply with all applicable terms of that third party. Customer will be responsible for all actions taken using Customer's accounts and credentials. If any User who has access to credentials is no longer employed or engaged by Customer, Customer will promptly delete or disable those credentials. APEX reserves the right to suspend access to any Services or features if Customer has exceeded applicable usage limits or if APEX otherwise determines, in its reasonable discretion, that Customer's use is excessive (e.g., substantially exceeds typical usage by similarly-sized customers, including in storage, bandwidth, or API consumption) or negatively impacts the operability, integrity, or security of the Services, until usage is reduced or the impact is resolved to APEX's satisfaction.
2.4. APEX Apps. Subject to all of the terms and conditions of this Agreement (unless otherwise indicated in the specific APEX App), APEX grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the APEX Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. APEX Agents. The right to use the Services includes the right to deploy APEX Agents within the Customer Properties in order to enable device monitoring, telemetry collection, configuration management, automation, and other functionality of the Services. Subject to all of the terms and conditions of this Agreement, APEX grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to install and operate APEX Agents on the Customer Properties solely to support Customer's use of the Services. Customer will deploy APEX Agents in strict accordance with the Documentation. Customer acknowledges that:
(a) APEX Agents collect device-level telemetry, configuration, performance, and event data from the AV devices and network infrastructure on which they are deployed, and Customer authorizes the transmission of such data to APEX as part of the Services;
(b) Customer is solely responsible for ensuring that APEX Agents are deployed only on Customer Properties that Customer owns or has the right to monitor, and only after providing any notices to, or obtaining any consents from, employees, contractors, occupants, or other persons whose activity or environment may be observed, as required by applicable Laws (including, without limitation, workplace monitoring, video, audio, and privacy Laws);
(c) changes made by Customer to Customer Properties, AV devices, network configuration, firmware, or third-party software after initial deployment of APEX Agents may cause the Services to cease working or to function improperly, and APEX will have no responsibility for the impact of any such Customer changes; and
(d) APEX may monitor Customer's API usage and place limits on access to APIs (e.g., limits on numbers of calls or requests). APEX may further limit such usage if APEX believes it is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services.
2.6. Contractors and Affiliates. Customer may permit its employees and Contractors, and its Affiliates' employees and Contractors, to serve as Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such Users is for the sole benefit of Customer.
2.7. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to, or sublicense the Services to a third party except as expressly permitted for Integrators managing Tenants under multi-tenant features of the Services; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than as expressly permitted under this Agreement; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to APEX); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services and/or on any reports or data printed from the Services; (f) publicly disseminate information regarding the performance of the Services; (g) use the Services for competitive analysis purposes or to develop a competing product or service; (h) use the Services to scan, probe, or test the security or vulnerability of any system or network without express written authorization from APEX and the owner of the relevant system or network; or (i) otherwise violate the AUP.
2.8. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Services (a "Trial Subscription"), Customer may use the Services in accordance with this Section for a period of thirty (30) days or such other period granted by APEX (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's evaluation to determine whether to purchase a paid subscription to the Services or an upgrade to a service plan. Trial Subscriptions may not include all functionality and may be subject to usage limits. If Customer does not enter into a paid Subscription Term prior to the expiration of the Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period, except as otherwise set forth herein. If stated in the Order Form or otherwise communicated in advance by APEX to Customer, a paid Subscription Term will commence automatically once the Trial Period expires, and Customer will be charged for any continued use. APEX has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, APEX WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, SERVICE LEVEL AGREEMENT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2.9. Beta Offerings. Customer may choose to use Beta Offerings in its sole discretion. Use of Beta Offerings may be subject to additional terms. APEX, in its discretion, may offer a Beta Offering with or without charge and reserves the right to modify pricing for a Beta Offering upon prior written notice. Beta Offerings may be changed at any time without notice and may not be maintained or become generally available. Beta Offerings are to be used for Customer's internal testing and evaluation purposes only and are not subject to the same security measures specified in the Data Processing Addendum. APEX will have no liability arising out of or in connection with Beta Offerings and disclaims any warranty, indemnity, support, SLA, or other obligations with respect to Beta Offerings. CUSTOMER USES BETA OFFERINGS "AS IS" AND AT ITS OWN RISK.
3. Customer Data and Customer Obligations
3.1. Data Processing by APEX. All data processing activities carried out as part of the Services will be governed by APEX's Data Processing Addendum ("DPA"), available at https://apexavcloud.com/legal/dpa or a successor URL, incorporated by reference into this Agreement.
3.2. Rights in Customer Data. As between the parties, Customer retains all Intellectual Property Rights in and to the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to APEX a non-exclusive, worldwide, royalty-free right to access, use, copy, transmit, modify, display, and process the Customer Data during the Subscription Term in order to provide, maintain, support, and improve the Services and to perform APEX's obligations under this Agreement.
3.3. Storage of Customer Data. APEX does not provide an archiving service. APEX agrees only that it will not intentionally delete any Customer Data from the Services prior to termination of Customer's applicable Subscription Term, and expressly disclaims all other obligations with respect to storage. Customer is responsible for exporting or backing up any Customer Data it wishes to retain following termination.
3.4. Usage Data and Anonymized Data. Customer agrees that APEX may use technical and other data about Customer's and Users' use of the Services ("Usage Data"), and Customer Data that has been aggregated or anonymized so that it does not identify Customer, any User, or any natural person ("Anonymized Data"), to analyze, improve, secure, support, and operate the Services, to develop new features and products, to produce industry benchmarks and reports, and to perform any other lawful business purpose, during and after the term of this Agreement. APEX retains all ownership in and to Usage Data and Anonymized Data. Nothing in this Section authorizes APEX to disclose Customer's identity in connection with any Anonymized Data made publicly available.
3.5. Customer Obligations.
(a) In General. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants to APEX that Customer has all necessary rights, consents, permissions, and authorizations to collect, share, transmit, and use all Customer Data as contemplated in this Agreement (including granting APEX the rights under this Section 3), and that no Customer Data will violate or infringe: (i) any third party Intellectual Property Rights, publicity, privacy, or other rights; (ii) any Laws; or (iii) any terms of service, privacy policy, or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer will be fully responsible for any Customer Data submitted to the Services by any User or, in the case of an Integrator, by any Tenant or Tenant user, as if it had been submitted by Customer itself.
(b) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process, or transmit any Sensitive Personal Information. APEX is not a HIPAA business associate, is not PCI DSS compliant, and does not accept Sensitive Personal Information through the Services. APEX will have no liability with respect to any Sensitive Personal Information submitted to the Services in breach of this Section, and Customer will indemnify APEX for any such breach pursuant to Section 3.6.
(c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services, including, without limitation, those related to data protection, employee and workplace monitoring, video and audio recording, telecommunications, and export control. Without limiting the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services that violate the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act of 2003, or any other applicable anti-spam, robocalling, or robotexting Laws.
(d) Notices to Affected Persons. Customer acknowledges that APEX Agents and the Services may collect telemetry, configuration, and event data from AV devices, conferencing endpoints, and related infrastructure within the Customer Properties, and that such data may include information about employees, contractors, visitors, meeting participants, or other persons (for example, room occupancy events, device usage patterns, call quality metrics, or device-generated logs). Customer is solely responsible for providing any notices to, and obtaining any consents from, such persons that may be required under applicable Laws (including workplace monitoring, video, audio, privacy, and employee notification Laws), and for maintaining any internal acceptable use policies necessary to support such notices and consents. Customer is also responsible for posting and maintaining a privacy notice on the Customer Properties (where applicable) describing the collection and use of such data. Information about how APEX collects and uses data is set forth in APEX's Product Privacy Notice, available at https://apexavcloud.com/legal/privacy, which Customer acknowledges it has read and understands and which is incorporated by reference into this Agreement.
3.6. Indemnification by Customer. Customer will indemnify, defend, and hold harmless APEX and its officers, directors, employees, and agents from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising from or relating to: (a) any Customer Data; (b) Customer's use of any Third-Party App or Third-Party Platform; (c) Customer's breach or alleged breach of Section 3.5 (Customer Obligations), including, without limitation, submission of Sensitive Personal Information to the Services; or (d) Customer's failure to provide required notices to, or obtain required consents from, persons affected by the deployment of APEX Agents or the collection of data through the Services. This indemnification obligation is subject to APEX (i) providing Customer with prompt written notice of such claim (but in any event in sufficient time for Customer to respond without prejudice); (ii) granting Customer the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (iii) providing all reasonably necessary cooperation at Customer's expense. Notwithstanding the foregoing, (x) APEX may participate in the defense of any claim with counsel of its own choosing at its own expense, and (y) Customer will not settle any claim without APEX's prior written consent unless the settlement fully and unconditionally releases APEX and does not require APEX to pay any amount, take any action, or admit any liability.
4. Security
APEX agrees to use commercially reasonable technical, administrative, and organizational measures designed to prevent unauthorized access to or use of the Services, as described in the DPA and APEX's published security documentation. Such measures will be no less protective than the standards and controls aligned with the AICPA SOC 2 Trust Services Criteria. APEX may update its security measures from time to time, provided that any such updates will not materially decrease the level of security provided.
5. Third-Party Platforms and Third-Party Apps
5.1. Integration with Third-Party Platforms. The Services are designed to integrate with certain Third-Party Platforms, including, without limitation, Cisco collaboration systems, Microsoft Teams Rooms, Logitech infrastructure, ServiceNow, and similar AV and IT platforms. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to provide credentials or grant the Services access to Customer's accounts with those platforms. By enabling such integrations, Customer authorizes APEX to access Customer's accounts with the relevant Third-Party Platforms and to exchange Customer Data with them for the purposes described in this Agreement. Customer is solely responsible for complying with the terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing. Customer acknowledges that APEX has no responsibility or liability for any Third-Party Platform, including any beta or pre-release features, or for how a Third-Party Platform processes Customer Data after it is exported to such platform. APEX does not guarantee that the Services will maintain integrations with any particular Third-Party Platform and may disable any such integration at any time, with or without notice. This Agreement governs Customer's use of and access to the Services even if accessed through an integration with a Third-Party Platform.
5.2. Third-Party Apps. Customer represents and warrants that Customer has agreed to the terms of service associated with any Third-Party App and has created, or has authorized APEX to create on Customer's behalf, an account with each such Third-Party App in accordance with those terms. APEX will have no liability for, and the Third-Party App provider is solely responsible for, the Third-Party App's network, functionality, content, and APIs.
6. Ownership
6.1. APEX Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to use the Services and that, irrespective of any use of the words "purchase," "sale," or like terms in this Agreement, no ownership rights are conveyed to Customer under this Agreement. As between the parties, APEX (or its suppliers) retains all right, title, and interest (including all Intellectual Property Rights) in and to the APEX Technology. Except as expressly set forth in this Agreement, no rights in any APEX Technology are granted to Customer.
6.2. Feedback. Customer, from time to time, may submit Feedback to APEX. APEX may freely use, evaluate, and exploit Feedback in connection with the APEX Technology. Customer hereby grants to APEX a perpetual, non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with the right to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose, and otherwise commercially exploit the Feedback. Customer represents that it will not provide Feedback that is subject to any third-party Intellectual Property Rights or confidentiality obligations that would prevent APEX from using it as described.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals.
(a) Monthly Subscription Term. For a month-to-month subscription, the Subscription Term will automatically renew on a monthly basis. Each successive contract month is a "renewal term." Customer may cancel a month-to-month subscription at any time by going to the billing settings page in the Dashboard or by emailing [email protected], and the effective termination date will be the last day of the then-current renewal term.
(b) Yearly or Multi-Year Subscription Term. For a yearly or multi-year subscription, the initial Subscription Term is set forth in the Order Form. The Subscription Term will automatically renew for additional, successive twelve-month periods (each, a "renewal term"), unless either party gives the other written notice of intent not to renew at least thirty (30) days prior to expiration of the initial Subscription Term or then-current renewal term. Notice of intent not to renew should be sent to [email protected].
7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via a Recurring Payment Method (as defined below) or (b) otherwise specified in the applicable Order Form. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due (or the maximum amount allowed by law, whichever is less). APEX reserves the right to adjust pricing for any service plan and/or any Service(s) to the then-current list price upon the start of any renewal term, provided that APEX will provide Customer with at least thirty (30) days' prior notice of any such price increase before the start of the applicable renewal term.
(a) Baseline Monthly Fee. APEX will charge Customer the monthly subscription fee in advance of each billing period. The monthly subscription fee will be based on the contracted usage quantity (e.g., number of Rooms for direct subscribers, or number of Tenants for Integrators) and any add-ons or upgrades purchased under the applicable service plan. Customer's invoice will also include any fees for one-time services (e.g., onboarding or implementation services) ordered by Customer.
(b) Changes to Contracted Usage. If the contracted usage quantity (e.g., number of Rooms, Tenants, or other applicable metric) or service plan is changed during a billing period, Customer's monthly subscription fee will be prorated accordingly as of the effective date of the change.
(c) Additional Usage Charges. In addition to the monthly subscription fee, if Customer uses any Services that are subject to additional usage charges and/or if Customer's actual usage exceeds Customer's contracted usage quantity (i.e., overages), Customer will be charged for such additional amounts calculated based on published list pricing and/or the applicable unit price set forth in the Order Form, subject to any applicable discounts.
(i) Services. For any Services subject to additional usage charges, the applicable charges will be calculated based on the actual amount of usage of each such Service in the given contract month. These additional usage charges will be billed in arrears in the next invoice following the date the charges were incurred.
(ii) Rooms and Tenants. With respect to Room-based or Tenant-based charges specifically, if Customer exceeds the originally contracted quantity of Rooms or Tenants, the additional Rooms or Tenants activated by Customer will be billed as additional usage charges. In the month the additional Rooms or Tenants are activated, these charges will be prorated as of the effective date of the change and included in the next invoice.
(d) Taxes. Except as expressly set forth in this Agreement, all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. APEX reserves the right to charge Customer for Taxes, as well as any legally required fees arising from Customer's use of the Services, if APEX believes it has a legal obligation to do so. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that, after making any required withholdings, APEX receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. If Taxes or other legally required fees arising from Customer's use of the Services are due to taxing authorities by Customer instead of APEX, Customer will provide APEX with appropriate evidence (such as a valid VAT or other tax registration number) to support exemption from collection by APEX.
7.3. Payment Via Recurring Payment Method. If Customer is purchasing the Services via credit card, debit card, ACH, or any other recurring payment method accepted by APEX (a "Recurring Payment Method"), the following terms apply:
(a) Recurring Billing Authorization. By providing Recurring Payment Method information and agreeing to purchase any Services, Customer hereby authorizes APEX (or its designee) to automatically charge Customer's Recurring Payment Method on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date in accordance with the applicable Order Form. Customer acknowledges that the amount billed each month may vary depending on Customer's usage of the Services and may include adjustments to the monthly subscription fee, upgrade fees, one-time service fees, additional usage charges, Taxes, and other fees as described above.
(b) Foreign Transaction Fees. Customer acknowledges that for certain Recurring Payment Methods, the provider or issuer may charge a foreign transaction fee or other charges.
(c) Invalid Payment. If a payment is not successfully settled due to expiration of a Recurring Payment Method, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to APEX, and APEX may, in its sole discretion: (i) invoice Customer directly for the deficient amount; (ii) continue attempting to bill the Recurring Payment Method once it has been updated by Customer; or (iii) suspend or terminate this Agreement.
(d) Payment of Outstanding Fees. Upon any termination or expiration of the subscription, APEX will charge Customer's Recurring Payment Method (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which payment APEX will not charge Customer's Recurring Payment Method for any additional fees.
7.4. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including any termination rights set forth herein), APEX reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. APEX also reserves the right to suspend Customer's access to the Services, without liability, if Customer's use of the Services is in violation of the AUP or this Agreement, or if APEX reasonably believes such suspension is necessary to protect the security, operability, or integrity of the Services.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and continues until the date of the last to expire Subscription Term under any Order Form, unless earlier terminated as set forth herein.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and not dismissed within sixty (60) days thereafter. In addition, APEX may terminate this Agreement (including all related Order Forms) immediately, with or without notice, if Customer materially breaches this Agreement or any policies incorporated by reference herein and such breach is not curable (in APEX's reasonable determination).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease all use of and access to the Services (including any related APEX Technology) and will delete (or, at APEX's request, return) any and all copies of the Documentation, any APEX passwords or access codes, and any other APEX Confidential Information in its possession. Customer acknowledges that following termination it will have no further access to any Customer Data in the Services, and that APEX may delete any such data at any time. Except where an exclusive remedy is specified, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.8 (Trial Subscriptions), 2.9 (Beta Offerings), 3.3 (Storage of Customer Data), 3.4 (Usage Data and Anonymized Data), 3.5(b) (No Sensitive Personal Information), 3.6 (Indemnification by Customer), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Recurring Payment Method), 8.3 (Effect of Termination), 8.4 (Survival), 9.2 (Warranty Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Confidential Information), and 16 (General Terms).
9. Limited Warranty
9.1. Limited Warranty. APEX warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. APEX's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for APEX to use commercially reasonable efforts to correct the reported non-conformity; or, if APEX determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity; (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services; or (iii) to Services provided to Customer on a no-charge, trial, beta, or evaluation basis.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, THE SERVICES ARE PROVIDED "AS IS." NEITHER APEX NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. APEX DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES APEX WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY. APEX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, ERRORS IN TRANSMISSION, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, UNAUTHORIZED THIRD-PARTY ACCESS, THIRD-PARTY PLATFORMS, THIRD-PARTY APPS, OR OTHER SYSTEMS OR CAUSES OUTSIDE THE REASONABLE CONTROL OF APEX. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Availability
The Services are available subject to APEX's Service Level Agreement ("SLA"), available at https://apexavcloud.com/legal/sla or a successor URL.
11. Support
During the Subscription Term of each Service, APEX will provide end-user support in accordance with APEX's Support Policy ("Support Policy"), available at https://apexavcloud.com/legal/support or a successor URL.
12. Limitation of Liability
12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY'S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO APEX UNDER THE AGREEMENT GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.5 (Customer Obligations) or 3.6 (Indemnification by Customer); or (c) from a party's breach of its obligations under Section 14 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service or relating to Customer Data).
12.4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12.5. Applicable Law. The limitations on liability under this Section 12 will not apply to the extent such liability cannot be limited under applicable law.
13. Indemnification
APEX will defend Customer from and against any claim by a third party alleging that a Service, when used as authorized under this Agreement, infringes any Intellectual Property Rights of such third party, and will indemnify and hold Customer harmless from and against any damages and costs finally awarded against Customer, or agreed in settlement by APEX (including reasonable attorneys' fees), resulting from such claim, provided that APEX receives: (i) prompt written notice of such claim from Customer (but in any event in sufficient time for APEX to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (iii) all reasonably necessary cooperation of Customer. If Customer's use of a Service is (or, in APEX's opinion, is likely to be) enjoined, if required by settlement, or if APEX determines such actions are reasonably necessary to avoid liability, APEX may, in its sole discretion: (a) substitute products or services of substantially similar functionality; (b) procure for Customer the right to continue using such Services; or, if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by APEX. The foregoing indemnification obligation will not apply: (1) if such Service is modified by any party other than APEX, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by APEX, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to any action arising from Customer's use of Third-Party Apps or Third-Party Platforms; or (6) if Customer settles or makes any admissions with respect to a claim without APEX's prior written consent. THIS SECTION 13 SETS FORTH APEX'S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
14. Confidential Information
Each party (as "Receiving Party") agrees that all non-public code, inventions, know-how, business, technical, and financial information it obtains from the disclosing party ("Disclosing Party") constitutes the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should reasonably be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any APEX Technology, performance information relating to any Service, security documentation, and the negotiated terms and conditions of this Agreement will be deemed Confidential Information of APEX without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties, and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for APEX, the subcontractors referenced in Section 16.8), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14, and the Receiving Party remains responsible for compliance by any such representative with this Section 14. The confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures of Confidential Information to the extent required by law, subpoena, or court order, provided the Receiving Party will notify the Disclosing Party in advance (where permitted to do so) and reasonably cooperate with the Disclosing Party, at the Disclosing Party's expense, to limit the scope of disclosure and/or obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
15. Publicity
(a) Self-Serve Customers. For self-serve customers (i.e., those customers who purchase Services through APEX's online payment process), Customer agrees that APEX may use Customer's name and/or logo to identify Customer as an APEX customer on APEX's website, sales and marketing materials, and customer lists. APEX's use of Customer's name and logo shall not be deemed Customer's endorsement of the Services.
(b) Direct Sales Customers. For customers who have a designated APEX sales point of contact, APEX may use Customer's name and/or logo for marketing and publicity purposes only with Customer's prior written consent (which may be granted by email). Any such use shall not be deemed Customer's endorsement of the Services.
16. General Terms
16.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
16.3. Governing Law; Dispute Resolution.
(a) Governing Law. This Agreement is governed by the laws of the State of Delaware, U.S.A., without regard to its principles of conflicts of law, and regardless of Customer's location. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(b) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort, or otherwise (a "Dispute"), the parties shall first use their reasonable best efforts to resolve the Dispute through good-faith negotiation. The complaining party shall provide written notice to the other party titled "Initial Notice of Dispute," specifically setting forth the nature of the Dispute. Initial Notice of Dispute sent to APEX must be emailed to [email protected] and sent by mail to:
Attn: Legal Department
ApexAVCloud LLC
5009 N Ashland Ave #3E
Chicago, IL 60640
Following receipt of an Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith for a period of at least thirty (30) days, attempting to reach a fair resolution. If the Dispute is not resolved within that thirty (30) day period, either party may proceed under Section 16.3(c).
(c) Jurisdiction; Forum. Subject to Section 16.3(b) and Section 16.3(d), all Disputes will be brought exclusively in the state or federal courts located in the State of Delaware, U.S.A. Each party irrevocably consents to the exclusive personal jurisdiction and venue of such courts and waives any objection based on inconvenient forum.
(d) Class Action Waiver. EACH PARTY AGREES THAT ANY PROCEEDING UNDER THIS AGREEMENT WILL BE BROUGHT ON AN INDIVIDUAL BASIS ONLY. NEITHER PARTY MAY PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING, AND THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY'S CLAIMS. This class action waiver is a material part of this Agreement.
(e) Equitable Relief. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its Intellectual Property Rights or Confidential Information, without first complying with the procedures in Section 16.3(b).
(f) Optional Arbitration. Nothing in this Section prevents the parties from mutually agreeing in writing, after a Dispute has arisen, to resolve such Dispute through binding arbitration on terms agreed at that time.
16.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form (or, for notices to APEX, to the addresses in Section 16.3(b)), or at such other address as may be given in writing by either party to the other in accordance with this Section, and will be deemed received: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, on the first business day after sending (provided no bounce-back or non-delivery message is received). Customer agrees that any electronic communication satisfies any applicable legal communication requirements, including that such communications be in writing.
16.5. Amendments; Waivers. Except as provided under "Modifications to this Agreement" and otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer that may be referenced in any Order Form or otherwise issued by Customer will supersede or modify the terms and conditions of this Agreement (regardless of any statement to the contrary in such document), and any such document will be for Customer's convenience and administrative purposes only and will have no legal effect.
16.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are online, subscription-based products, and in order to provide an improved customer experience APEX may make changes to the Services and will update the applicable Documentation accordingly. The support and service-level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices, provided that the modifications will not materially decrease APEX's obligations as compared to those reflected in such terms as of the Effective Date.
16.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and are beyond the reasonable control of such party, including without limitation strikes, blockades, war, acts of terrorism, riots, natural disasters, pandemics, failure or diminishment of power or telecommunications or data networks or services, failure of cloud infrastructure providers, or refusal of a license by a government agency.
16.8. Subcontractors. APEX may use the services of subcontractors and permit them to exercise the rights granted to APEX in order to provide the Services, provided that APEX remains responsible for: (i) compliance of any such subcontractor with the terms of this Agreement; (ii) the overall performance of the Services as required under this Agreement; and (iii) compliance with the terms of the DPA.
16.9. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
16.10. Export Control and Economic Sanctions. Each party: (i) agrees to comply with all export control and economic sanctions, and any relevant import laws and regulations, of the United States and other applicable jurisdictions; and (ii) represents and warrants that it is not listed on any U.S. or other government list of prohibited or restricted parties, or located in (or a national of) a country that is subject to a U.S. government export control embargo or comprehensive economic sanctions. Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export control or economic sanction, prohibition, or restriction, and will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.
16.11. Government End-Users. Elements of the Services are commercial computer software. If Customer or end user of the Services is an agency, department, or other entity of the United States Government, then the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 (Computer Software) for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 (Rights in Commercial Computer Software or Commercial Computer Software Documentation) for military purposes. All Services were developed fully at private expense.
16.12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.