Last Revised: March 21, 2022
These Website Terms of Use (“Terms”) apply to your access to, and use of, www.theapexagency.com (the “Site”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with The Apex Agency (“Apex”) for products, services or otherwise.
PLEASE READ THESE TERMS OF USE CAREFULLY. ACCESSING OR USING THE SITE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS, AS SUCH MAY BE REVISED BY APEX FROM TIME TO TIME. THESE TERMS CONSTITUTE A BINDING AGREEMENT BETWEEN THE USER (“YOU” OR “USER”) AND APEX GOVERNING YOUR USE OF THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT ACCESS OR USE THE SITE. THE TERMS CONTAIN DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO USER.
THE TERMS INCLUDE A CLASS ACTION WAIVER AND WAIVER OF JURY TRIALS AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
We may periodically change these Terms, so please check them from time to time as your continued use of the Site signifies your acceptance of any changed terms. Apex reserves the right, without prior notice and without incurring any obligations, to discontinue or change the specifications of any products or services offered on this Site.
ACCEPTABLE USE
In no event may the Site be used in a manner that (a) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights); (b) is unlawful, fraudulent, or deceptive; (c) provides sensitive personal information unless specifically requested by Apex, (d) includes spam or any unsolicited advertising; (e) uses or launches any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” to access Apex or the content contained on the Site; (f) attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (g) attempts to gain unauthorized access to Apex’ computer network or user accounts; (h) encourages conduct that would constitute a criminal offense or that gives rise to civil liability; (i) violates these Terms; (j) attempts to damage, disable, overburden, or impair Apex’ servers or networks; (k) impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity; or (l) fails to comply with applicable third party terms. We reserve the right, in our sole discretion, to terminate your or any user’s participation in or use of the Site, remove content, or assert legal action with respect to content or use of the Site, that we reasonably believe is or might be in violation of these Terms. Our failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
AGE REQUIREMENT
The Site is not directed toward, nor intended for use by, anyone under the age of 13. YOU MUST BE AT LEAST AGE 13 TO ACCESS AND USE THE SITE. If you are between the ages of 13 and 18, you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms.
INTELLECTUAL PROPERTY RIGHTS
All contents and materials on this Site are protected as the copyrights, trade dress, trademarks and/or other intellectual properties (whether registered or unregistered) owned by Apex or by other parties that have licensed their material to us or where such use is fair use. The foregoing notwithstanding, the Site may include content provided by third party visitors to the Site or third parties that otherwise supply User Content (defined below). Please note that such third-party content may be inaccurate, misleading, or deceptive. Apex neither endorses nor is responsible for any opinion, advice, information, or statements made by third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and may not reflect the opinions of Apex. You may not use, copy, republish, duplicate, frame, or use any of the contents or materials on this Site without our express written consent. All rights not expressly granted are reserved.
USER CONTENT
You may submit content to us by interacting with Apex, Apex affiliate, or Apex client (collectively “Apex Party”) on the Site, publicly on a social media platform (including through reviews, hashtag) or otherwise publishing such content that references or includes an Apex Party through any digital or social media platform, such as your name, social media handle, accompanying text, and any images, videos, or audio from your social media accounts (e.g. Twitter™, Instagram™, Pinterest™) (collectively, “User Content“).
You acknowledge that you are responsible for any User Content you may submit to us, and you represent that the User Content submitted by you complies with these Terms. You are solely responsible for the User Content you submit, and Apex assumes no liability for any User Content submitted by you. Such User Content must be accurate, reliable, appropriate, original (or with appropriate rights), legally permissible, and may not infringe on the rights of any third party. You may not upload commercial content onto the Site.
If you do submit User Content, and unless we indicate otherwise, you grant Apex an unrestricted, nonexclusive, royalty-free, perpetual, irrevocable, fully paid-up, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, sell, distribute display, and incorporate the User Content into any form, medium, or technology, now known or hereafter developed, throughout the world, all without compensation to you. For this reason, do not send us any User Content that you do not wish to license to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, in our sole discretion: (i) monitor User Content; (ii) alter, remove, or refuse to post or allow to be posted any User Content; and/or (iii) disclose any User Content, and the circumstances surrounding its transmission, to any third party. You grant Apex the right to use the name you submit in connection with such User Content, if we so choose. We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. You represent and warrant that you own or otherwise control all the rights to the User Content you post; that use of the User Content you supply does not violate any provision herein and will not cause injury to any person or entity; and will not contain, or provide links to, obscene, profane, or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam”, or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading. Further, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section, including but not limited to permission from or on behalf of any individuals that appear in the User Content to use, and grant to third parties such as the Apex Parties the right to use, their name, image, voice and/or likeness without compensation to you or any other person or entity. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
You agree to indemnify Apex for all claims resulting from User Content you supply.
SUBMISSION OF IDEAS
Separate and apart from the User content you provide or utilize the Site for, you may submit questions, comments, feedback, suggestions, ideas, improvements, plans, or other information about Apex, our Sites and/or our products (collectively, “Idea” or “Ideas“) either through the Site, social media, or otherwise. The Ideas you submit are voluntary, non-confidential, gratuitous and non-committal. Please do not send us Ideas if you expect to be paid or want to continue to own or claim rights in them; your Ideas might be great, but we may have already had the same or similar idea and we do not want disputes. You must also inform us if you have a pending or registered patent relative to the Idea.
You represent and warrant that your Ideas are not subject to any confidentiality obligations or third party intellectual property encumbrances and that you own and control all of the rights to the Ideas and have the authority to grant the rights to Apex that you grant herein.
By submitting your Idea, you grant Apex and its designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the Idea and shall be entitled to the unrestricted use and dissemination of Ideas for any purpose, commercial or otherwise, without acknowledgment or compensation to you. By submitting your Ideas, you hereby release Apex and its agents and employees from any claims that such use violates any of your rights.
Apex shall own exclusive rights, including all intellectual property rights, to any work it creates or has created from the Idea or a similar idea of its own.
LINKS TO THIRD PARTY WEBSITES
This Site may provide links or embedded content to websites operated by third parties. We do not control, endorse, or adopt any information, product, service, promotion, offering, or other content or materials included in such linked websites, including that the inclusion of any link or embedded content does not imply affiliation, endorsement, or adoption by Apex of any website, or any information contained therein, and we can make no guarantee as to its accuracy or completeness. You acknowledge and agree that in no event may Apex be held responsible or liable for the actions, product, and content of any such websites. When you visit other sites via links or embedded content, you should understand that our terms and policies no longer govern and that the terms and policies of those third-party sites will now apply. Before you use any linked website or embedded content, you should review such website’s applicable conditions of use and policies. If you decide to access such third-party sites, you do so at your own risk.
DIGITAL MILLENIUM COPYRIGHT ACT (“DMCA“) NOTICE
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send us a notice requesting that we remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. If Apex receives a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.
Notices should be sent to:
The Apex Agency
Privacy Team
9801 Research Drive
Irvine, CA 92618
privacyteam@theapexagency.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
In accordance with the DMCA and other applicable law, Apex has also adopted a policy of terminating, in appropriate circumstances and in our sole discretion, Users who are deemed to be repeat infringers. Apex may also, in its sole discretion, limit access to the Sites and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
PRIVACY
We take your privacy seriously. For detailed information about our data collection and use practices, as well as the choices you have in relation to your personal information, please see our PRIVACY POLICY.
INDEMNITY
You agree to defend, indemnify, and hold harmless Apex and other affiliated companies, independent contractors, service providers and consultants, and their respective employees, contractors, agents, officers, and directors (“Apex Indemnitees”) from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including attorneys’ fees) (“Claims”) that arise from or relate to your use or misuse of the Site, violation of these Terms, violation of any rights of a third party, or your conduct in connection with the Site. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY STATED OTHERWISE, THE CONTENT OF THIS SITE IS OFFERED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED. WITHOUT LIMITATION AND TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, APEX DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE SITE IS MERCHANTABLE, RELIABLE, AVAILABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING, FREE OF DEFECTS OR VIRUSES, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE USE OF THE SITE BY YOU IS IN COMPLIANCE WITH LAWS APPLICABLE TO YOU, OR YOUR INFORMATION TRANSMITTED IN CONNECTION WITH THE SITE WILL BE SUCCESSFULLY, ACCURATELY, OR SECURELY TRANSMITTED OR RECEIVED. THE MATERIALS AND INFORMATION ON THE SITE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.
Information on this Site may include technical inaccuracies and typographical errors. The Site may contain links or information which includes press releases or forward-looking statements as defined by the U.S. Private Securities Litigation Reform Act of 1995. The information contained within any press releases issued by Apex should not be deemed accurate or current except as of the date the release was posted. Any forward-looking statements on or available through this Site are based on Apex’s expectations as of the date such forward-looking statements are made and are neither predictions nor guarantees of future events or circumstances. Apex assumes no obligation to update any of these forward-looking statements and assumes no liability for any inaccuracies or incorrect predictions in the forward-looking statements. To the extent any information from this Site is forward-looking, it is intended to fit within the safe harbor for forward-looking statements. Any use of information on this Site is at your own risk.
Nothing in these Terms will affect any statutory rights to which you may be entitled as a consumer to the extent your ability to alter or waive such rights by contract is limited by applicable law.
LIMITATION OF LIABILITY
APEX INDEMNITEES WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY OR ARISING OUT OF YOUR USE OF THE SITE, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURES. APEX INDEMNITEES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE CONTENTS OR MATERIALS ON THIS SITE, EVEN IF AN APEX INDEMNITEE IS NEGLIGENT OR IF APEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR MAY APEX INDEMNITEES BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND ITS REASONABLE CONTROL. APEX INDEMNITEE’S TOTAL LIABILITY FOR ANY LOSS, DAMAGES OR CAUSE OF ACTION SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO ACCESS THIS SITE.
THESE DISCLAIMERS AND LIMITATIONS DO NOT LIMIT LIABILITY THAT CANNOT BE EXCLUDED UNDER THE LAW.
ARBITRATION
Please read this section carefully as it affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of these Terms.
For all disputes, whether pursued in court or arbitration, you must first send a written description of your claim to us via certified mail sent to The Apex Agency, Attention: Privacy Team, 9801 Research Drive, #9801, Irvine, CA 92618, with a copy to Miller Haga Law Group, LLP, 23901 Calabasas Road, Suite 2001, Calabasas, CA 91302, Attention: Managing Partner to allow us an opportunity to resolve the dispute. You and we each agree to negotiate your claim in good faith. You may request arbitration if your claim or dispute cannot be resolved within 60 days.
You agree that any and all disputes arising out of the use of this Site or these Terms conducted in accordance with the rules of the American Arbitration Association (“AAA“), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by these Terms. Such arbitration to be held in Orange County, California before one (1) arbitrator. Any judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
WAIVER OF CLASS ACTIONS AND JURY TRIALS
Please read this section carefully as it affects rights that you may otherwise have. You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
GOVERNING LAW
Except with respect to principles of conflicts of laws, any dispute arising from these Terms or from any other use of this Site shall be resolved in accordance with the laws of the State of California. The exclusive venue for any claim, action, lawsuit, or other proceeding arising out of or relating to these Terms shall be Orange County in the State of California. Except as otherwise stated in Section 12 (ARBITRATION), the prevailing party as determined by the trier of fact in any such action, proceeding, litigation, arbitration, or other dispute resolution forum or judicial proceeding shall be entitled to recover its reasonable attorney’s fees and costs.
WAIVER AND SEVERABILITY
Our failure at any time to require performance of any provision of these or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Any provision of these Terms shall be severable to the extent that the provision, or any portion thereof, might be illegal, invalid, or otherwise unenforceable. The invalidity of any provision, or portion thereof, shall not affect the enforceability of the remaining provision(s).
MODIFICATION
We reserve the right to modify or discontinue, temporarily or permanently, the Site or any features or portions thereof without prior notice. You agree that Apex will not be liable for any modification, suspension or discontinuance of the Site or any part thereof.
ENTIRE UNDERSTANDING
These Terms, together with our PRIVACY POLICY and any terms contained on the Site, contain the entire understanding and agreement between you and us with respect to this Site and supersede all previous communications, negotiations, and agreements, whether oral, written, or electronic between you and us with respect to this Site.
NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please call us at (866) 538-8581 or send a letter to us with “California Resident Request” as the Subject Line at mailing address The Apex Agency, Attention: Privacy Team, 9801 Research Drive, Irvine, CA 92618, or email privacyteam@theapexagency.com. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento CA 95834 or by telephone at 800.952.5210. For information about your rights under the California Consumer Privacy Act, please see the “Your California Privacy Rights” section of our PRIVACY POLICY.
CONTACT US
Please feel free to contact us at privacyteam@theapexagency.com with any comments, questions, or suggestions you might have regarding the information described in the Site.