This Terms of Service (the “TOS”) is a legally binding agreement and is agreed to between JMWW, Inc., d/b/a Apex Trading (“Apex Trading”, “us”, “we” or “our”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “you” or “your”).
Apex Trading offers a wholesale and inventory management technology platform (the “Platform”). You may access the Platform through the website located at www.apextrading.com and through various other websites operated by Apex Trading (“Site”), and using online applications provided by and on behalf of Apex Trading (each an “Application” and each Site and Application treated as a part of the “Platform” for purposes of this TOS).The Platform provides users the ability to manage inventory of product (“Members”); and, other services related to wholesale and inventory management (collectively, the “Services”).
PLEASE READ THE FOLLOWING TOS CAREFULLY. BY ACCESSING OR USING OUR SITES, PLATFORM, AND SERVICES, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND ALL TERMS INCORPORATED HEREIN BY REFERENCE INCLUDING THE PRIVACY POLICY LOCATED AT apextrading.com/privacy. IT IS THE RESPONSIBILITY OF YOU TO READ THE TERMS AND CONDITIONS BEFORE PROCEEDING TO USE THIS SITE, THE PLATFORM, AND SERVICES. IF YOU DO NOT EXPRESSLY AGREE TO ALL OF THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS OR USE OUR SITES, OUR PLATFORM, OR SERVICES. THIS TERMS OF SERVICE AGREEMENT IS EFFECTIVE AS OF 7/30/19.
YOU SHOULD CAREFULLY READ THIS TOS, INCLUDING THE REQUIRED USE OF ARBITRATION, AS FULLY DESCRIBED IN THE “ARBITRATION” SECTION OF THIS TOS.
1. DEFINITIONS
Terms used in this TOS have the definitions given in this TOS or, if not defined in this TOS, have their plain English meaning as commonly interpreted in the United States.
2. SERVICES
A. Modifications. Apex Trading shall reserve the right at any time it may deem fit, to modify, alter, revise, update, suspend or discontinue, whether temporarily or permanently, the Platform and Service, or any part thereof (“Modifications”), with or without prior notice. In addition, we shall not be held liable to you or to any third party for any such Modification, or any part thereof. Your continued use of the Services or Platform after any Modification shall constitute your acceptance of such Modification. Frequent review of this TOS and any and all applicable terms and policies should be made by you to ensure you are aware of all terms and policies currently in effect.
3. MEMBER ELIGIBILITY AND REGISTRATION
A. Member Eligibility. Access to and use of the Platform and Services, are by membership only and are intended for use by individuals who are at least 21 years of age and able to form legally binding contracts. You represent and warrant that you are not: i) a citizen or resident of (or located in) any jurisdiction where use of the Platform or Services are prohibited by law; ii) not an individual that has been previously barred from the Platform or Services under the laws and statutes of the United States or other applicable jurisdiction; and iii) on the list of prohibited individuals which may be identified on any government export exclusion report (http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) nor a member of any other government which may be part of an export-prohibited country identified in applicable export and import laws and regulations. Apex Trading reserves the right to deny any applicant for any reason other than reasons based on race, gender, or religion, or any other legally protected category.
B. Registration. Access to and use of certain Services will require that you establish a Member account (a “Member Account”) when you register, Apex Trading may collect information such as your name, e-mail address, birth date, gender, mailing address, occupation, industry and personal interests. You can edit your Member Account information at any time. Once you register with Apex Trading and sign in to the Platform, you are no longer anonymous to Apex Trading. Furthermore, you hereby acknowledge, understand and agree to: i) furnish factual, correct, current and complete information with regards to you, as may be requested by the data registration process; and ii) maintain and promptly update your registration and profile information in an effort to maintain accuracy and completeness at all times. If you knowingly provide any information of a false, untrue, inaccurate or incomplete nature, Apex Trading will have sufficient grounds and rights to suspend or terminate your Member Account, and as such refuse any and all current or future use of the Platform or Services, or any portion thereof.
4. MEMBER ACCOUNT, USERNAME, PASSWORD AND SECURITY
When you set up a Member Account, you are the sole authorized user of your Member Account. You shall be responsible for maintaining the secrecy and confidentiality of your password and for all activities that transpire on or within your Member Account. It is your responsibility for any act or omission of any user(s) that access your Member Account information that, if undertaken by you, would be deemed a violation of the TOS. It shall be your responsibility to notify Apex Trading immediately if you notice any unauthorized access or use of your Member Account or password or any other breach of security. Apex Trading shall not be held liable for any loss and/or damage arising from any failure to comply with this TOS.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
Apex Trading offers a range of subscription plans for the Services. Each plan includes an outline of the Services offered. You will select your plan as part of your registration for the Services. Each subscription period for a plan will be based on the subscription chosen and the preferred billing cycle. You may choose to be billed for the plan annually or in less than annual increments, but regardless of billing cycle, you are responsible for subscription fees for the entire subscription period chosen, and fees are non-refundable. If no billing cycle is preferred, the default billing cycle is monthly and the cycle starts the first of every month. As an express condition of your use of and access to the Services, you agree to pay all fees applicable to your subscription plan. If you downgrade your subscription plan, your new rate will be charged beginning in the next billing cycle.
6. PRIVACY POLICY
Your registration data and various other personal information are protected by the Apex Trading Privacy Policy (see the full Privacy Policy at apextrading.com/privacy). As a Member, you herein consent to the collection and use of the information provided, including the transfer of information within the United States and/or other countries for storage, processing or use by Apex Trading and/or our subsidiaries and affiliates.
7. CONDUCT
A. Content Posted. Content Posted. You herein acknowledge, understand and agree that all information, text, software, data, photographs, music, video, messages, tags or any other content, whether it is publicly or privately posted and/or transmitted, is the expressed sole responsibility of the individual from whom the content originated. In short, this means that you are solely responsible for any and all content posted, uploaded, emailed, transmitted or otherwise made available by way of the Services, and as such, we do not guarantee the accuracy, integrity or quality of such content. It is expressly understood that by use of the Services, you may be exposed to content including, but not limited to, any errors or omissions in any content posted, and/or any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available by Apex Trading.
B. Prohibited Activities. You herein agree not to make use of the Platform or Services for the purpose of:
i) uploading, posting, emailing, transmitting, or otherwise making available any content that shall be deemed unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or invasive of another's privacy or which is hateful, and/or racially, ethnically, or otherwise objectionable;
ii) causing harm to minors in any manner whatsoever;
iii) impersonating any individual or entity, including, but not limited to, any Apex Trading officials, forum leaders, guides or hosts or falsely stating or otherwise misrepresenting any affiliation with an individual or entity;
iv) forging captions, headings or titles or otherwise offering any content that you personally have no right to pursuant to any law nor having any contractual or fiduciary relationship with;
v) uploading, posting, emailing, transmitting or otherwise offering any such content that may infringe upon any patent, copyright, trademark, or any other proprietary or intellectual rights of any other party;
vi) uploading, posting, emailing, transmitting or otherwise offering any content that you do not personally have any right to offer pursuant to any law or in accordance with any contractual or fiduciary relationship;
vii) uploading, posting, emailing, transmitting, or otherwise offering any unsolicited or unauthorized advertising, promotional flyers, "junk mail," "spam," or any other form of solicitation, except in any such areas that may have been designated for such purpose;
viii) uploading, posting, emailing, transmitting, or otherwise offering any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment;
ix) disrupting the normal flow of communication, or otherwise acting in any manner that would negatively affect other users' ability to participate in any real time interactions;
x) interfering with or disrupting any Services, servers and/or networks that may be connected or related to our website, including, but not limited to, the use of any device software and/or routine to bypass the robot exclusion headers;
xi) intentionally or unintentionally violating any local, state, federal, national or international law, including, but not limited to, rules, guidelines, and/or regulations decreed by the U.S. Securities and Exchange Commission, in addition to any rules of any nation or other securities exchange, that would include without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
xii) providing informational support or resources, concealing and/or disguising the character, location, and or source to any organization delegated by the United States government as a "foreign terrorist organization" in accordance to Section 219 of the Immigration Nationality Act;
xiii) "stalking" or with the intent to otherwise harass another individual; and/or
xiv) collecting or storing of any personal data relating to any other Member or user in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
C. Right to Remove Content. Apex Trading herein reserves the right to pre-screen, refuse and/or delete any content currently available through the Platform or Services. In addition, Apex Trading reserves the right to remove and/or delete any such content that would violate this TOS or which would otherwise be considered offensive to other visitors, users and/or Members.
D. Right to Disclose Content. Apex Trading herein reserves the right to access, preserve and disclose Member Account information and content if it is requested to do so by law or in good faith belief that any such action is deemed reasonably necessary for: i) compliance with any legal process; ii) enforcement of the TOS; iii) responding to any claim that therein contained content is in violation of the rights of any third party; iv) responding to requests for customer service; or v) protecting the rights, property or the personal safety of Apex Trading, its visitors, users and Members, including the general public.
E. Security of Content. Apex Trading herein reserves the right to include the use of security components that may permit digital information or material to be protected, and that such use of information and material is subject to usage guidelines and regulations established by Apex Trading or any other content providers supplying content services to Apex Trading. You are hereby prohibited from making any attempt to override or circumvent any of the embedded usage rules on the Platform or in the Services. Unauthorized reproduction, publication, distribution, or exhibition of any information or materials supplied by the Services, despite whether done so in whole or in part, is expressly prohibited.
8. CAUTIONS FOR GLOBAL USE AND EXPORT AND IMPORT COMPLIANCE
Due to the global nature of the internet, through the use of Apex Trading’s network you hereby agree to comply with all local rules relating to online conduct and that which is considered acceptable content. Uploading, posting and/or transferring of software, technology and other technical data may be subject to the export and import laws of the United States and possibly other countries. Through the use of Apex Trading’s network, you thus agree to comply with all applicable export and import laws, statutes and regulations, including, but not limited to, the Export Administration Regulations (http://www.access.gpo.gov/bis/ear/ear_data.html), as well as the sanctions control program of the United States (http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx) You represent and warrant that you:
i) are not on the list of prohibited individuals which may be identified on any government export exclusion report(http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) nor a member of any other government which may be part of an export-prohibited country identified in applicable export and import laws and regulations;
ii) agree not to transfer any software, technology or any other technical data through the use of the Services or Platform to any export-prohibited country;
iii) agree not to use the Services for any military, nuclear, missile, chemical or biological weaponry end uses that would be a violation of the U.S. export laws; and
iv) agree not to post, transfer nor upload any software, technology or any other technical data which would be in violation of the U.S. or other applicable export and/or import laws.
9. CONTENT PLACED OR MADE AVAILABLE FOR COMPANY SERVICES
A. Rights to Your Content. Apex Trading shall not lay claim to ownership of any content submitted by any visitor, Member, or user, nor make such content available for inclusion on our website. Therefore, you hereby grant and allow for Apex Trading the below listed worldwide, royalty-free and non-exclusive licenses, as applicable:
i) The content submitted or made available for inclusion on the publicly accessible areas of Apex Trading’s sites, the license provided to permit to use, distribute, reproduce, modify, adapt, publicly perform and/or publicly display said content on the Services is for the sole purpose of providing and promoting the specific area to which this content was placed and/or made available for viewing. This license shall be available so long as you are a Member, and shall terminate at such time when you elect to discontinue your membership.
ii) Photos, audio, video and/or graphics submitted or made available for inclusion on the publicly accessible areas of Apex Trading's sites, the license provided to permit to use, distribute, reproduce, modify, adapt, publicly perform and/or publicly display said content on the Services are for the sole purpose of providing and promoting the specific area in which this content was placed and/or made available for viewing. This license shall be available so long as you are a Member of Apex Trading's sites and shall terminate at such time when you elect to discontinue your membership.
iii) For any other content submitted or made available for inclusion on the publicly accessible areas of Apex Trading's sites, the continuous, binding and completely sub-licensable license which is meant to permit to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and/or publicly display said content, whether in whole or in part, and the incorporation of any such content into other works in any arrangement or medium current used or later developed.
B. Publicly Accessible Content. Those areas which may be deemed "publicly accessible" areas of Apex Trading's sites are those such areas of our network properties which are meant to be available to the general public, and which would include message boards and groups that are openly available to both users and Members. However, those areas which are not open to the public, and thus available to Members only, would include our mail system and instant messaging.
10. CONTRIBUTIONS TO COMPANY WEBSITE
Apex Trading provides an area for users and Members to contribute feedback to our website. When you submit ideas, documents, suggestions and/or proposals ("Contributions") to the Site, you acknowledge and agree that:
i) your Contributions do not contain any type of confidential or proprietary information;
ii) Apex Trading shall not be liable or under any obligation to ensure or maintain confidentiality, expressed or implied, related to any Contributions;
iii) Apex Trading shall be entitled to make use of and/or disclose any such Contributions in any such manner as they may see fit;
iv) the contributor's Contributions shall automatically become the sole property of Apex Trading; and
v) Apex Trading is under no obligation to either compensate or provide any form of reimbursement in any manner or nature.
11. USE AND STORAGE GENERAL PRACTICES
You herein acknowledge that Apex Trading may set up any such practices and/or limits regarding the use of the Platform and Services, without limitation of the maximum number of days that any email, message posting or any other uploaded content shall be retained by Apex Trading, nor the maximum number of email messages that may be sent and/or received by Member, the maximum volume or size of any email message that may be sent from or may be received by Member Account, the maximum disk space allowable that shall be allocated on Apex Trading's servers on the Member's behalf, and the maximum number of times and duration that Member may access the Platform and Services in a given period of time. In addition, you also agree that Apex Trading has absolutely no responsibility or liability for the removal or failure to maintain storage of any messages and/or other communications or content maintained or transmitted by the Services or through the Platform. You also herein acknowledge that Apex Trading reserves the right to delete or remove any Member Account that is no longer active for an extended period of time. Apex Trading shall reserve the right to modify, alter and/or update these general practices and limits at our discretion. Any messenger service, which may include any web-based versions, shall allow you and the individuals with whom you communicate with the ability to save your conversations in your Member Account located on Apex Trading's servers. In this manner, you will be able to access and search your message history from any computer with internet access. You also acknowledge that others have the option to use and save conversations with you in their own personal account on ApexTrading.com. It is your agreement to this TOS which establishes your consent to allow Apex Trading to store any and all communications on its servers.
12. TERMINATION
A. Termination Rights. As a Member, you may cancel or terminate your Member Account, associated email address and/or access to the Platform or Services by submitting a cancellation or termination request to support@apxtrading.com. As a Member, you agree that Apex Trading may, without any prior written notice, immediately suspend, terminate, discontinue and/or limit your Member Account, any email associated with your Member Account, and access to the Platform or any of the Services. The cause for such termination, discontinuance, suspension and/or limitation of access shall include, but is not limited to:
i) any breach or violation of this TOS or any other incorporated agreement, regulation and/or guideline;
ii) by way of requests from law enforcement or any other governmental agencies;
iii) the discontinuance, alteration and/or material modification to the Platform or Services, or any part thereof;
iv) unexpected technical or security issues and/or problems;
v) any extended periods of inactivity;
vi) any engagement by you in any fraudulent or illegal activities; and/or
vii) the nonpayment of any associated fees that may be owed by you in connection with your Member Account.
B. Obligations of Termination. You herein agree that any and all terminations, suspensions, discontinuances, and or limitations of access for cause shall be made at our sole discretion and that we shall not be liable to you or any other third party with regards to the termination of your Member Account, associated email address and/or access to the Platform or any of the Services. The termination of your Member Account with shall include any and/or all of the following:
i) the removal of any access to all or part of the Platform or Services offered;
ii) the deletion of your password and any and all related information, files, and any such content that may be associated with or inside your Member Account, or any part thereof; and
iii) the barring of any further use of all or part of the Platform or our Services.
13. ADVERTISERS
Any correspondence or business dealings with, or the participation in any promotions of, advertisers located on or through Platform or as part of the Services, which may include the payment and/or delivery of such related goods and Services, and any such other term, condition, warranty or representation associated with such dealings, are and shall be solely between you and any such advertiser. Moreover, you herein agree that Apex Trading shall not be held responsible or liable for any loss or damage of any nature or manner incurred as a direct result of any such dealings or as a result of the presence of such advertisers on the Site.
14. LINKS
Either Apex Trading or any third parties may provide links to other websites and/or resources. Thus, you acknowledge and agree that we are not responsible for the availability of any such external sites or resources, and as such, we do not endorse nor are we responsible or liable for any content, products, advertising or any other materials, on or available from such third party sites or resources. Furthermore, you acknowledge and agree that Apex Trading shall not be responsible or liable, directly or indirectly, for any such damage or loss which may be a result of, caused or allegedly to be caused by or in connection with the use of or the reliance on any such content, goods or Services made available on or through any such site or resource.
15. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
A. Platform Software. You hereby acknowledge and agree that the Platform and any databases, software, hardware and other technology that may be used in connection with the Platform or Services ("Software") shall contain proprietary and confidential material that is protected by applicable intellectual property rights and other laws. Furthermore, you herein acknowledge and agree that any content which may be contained in any advertisements or information presented by and through the Platform or Services or by advertisers is protected by copyrights, trademarks, patents or other proprietary rights and laws. Therefore, except for that which is expressly permitted by applicable law or as authorized by Apex Trading or such applicable licensor, you agree not to alter, modify, lease, rent, loan, sell, distribute, transmit, broadcast, publicly perform or create any plagiaristic works which are based on the Platform or Services (e.g. content or Software), in whole or part. Apex Trading herein has granted you personal, non-transferable and non-exclusive rights and/or license to make use of the object code or our Software on a single computer, as long as you do not, and shall not, allow any third party to duplicate, alter, modify, create or plagiarize work from, reverse engineer, reverse assemble or otherwise make an attempt to locate or discern any source code, sell, assign, sublicense, grant a security interest in and/or otherwise transfer any such right in the Software. Furthermore, you do herein agree not to alter or change the Software in any manner, nature or form, and as such, not to use any modified versions of the Software, including and without limitation, for the purpose of obtaining unauthorized access to the Platform or Services. Lastly, you also agree not to access or attempt to access the Platform or Services through any means other than through the interface which is provided by Apex Trading for use in accessing the Platform or Services.
B. Ownership. You acknowledge and agree that the Platform and the Services provided, are the sole property of Apex Trading and Apex Trading retains all right, title and interest, including, without limitation, all intellectual property rights, in and to the Platform, Services, Software and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Platform, Services, or Software and you are not granted any right or license to use the Software itself, apart from your ability to access the Platform, content, and Services under this TOS.
C. Commercial Reuse of Services. You agree not to replicate, duplicate, copy, trade, sell, resell nor exploit for any commercial reason any part, use of, or access to Apex Trading's Sites.
16. REPRESENTATION AND WARRANTIES; WARRANTY DISCLAIMER
A. Mutual Warranties. Each party hereby represents and warrants to the other party that: i) it has the legal right and authority to enter into this TOS; ii) this TOS forms a binding legal obligation on behalf of such party; and iii) it has the legal right and authority to perform its obligations under this TOS and to grant the rights and licenses described in this TOS.
B. Compliance with Laws. You acknowledge that the Platform is a general purpose online service and is not specifically designed to facilitate compliance with any specific law. You acknowledge that you will access and use the Platform in compliance with all laws applicable to you, your content, and any other content you may access through the Platform. Apex Trading is not responsible for notifying you of any such law, enabling your compliance with any such law, or for your failure to comply. You represent and warrant to Apex Trading that your content, your use of the Platform and Services, and your use of and access to the Platform, will comply with all applicable laws and will not cause Apex Trading itself or any other Member to violate any applicable laws. By accessing and using the Platform, you represent and warrant that you have never been the subject of a complaint, restraining order or any other legal action including, without limitation, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or the illegal distribution of drugs.
C. WARRANTY DISCLAIMER. YOU HEREIN EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
i) THE USE OF THE PLATFORM, SERVICES AND SOFTWARE ARE AT THE SOLE RISK BY YOU. THE PLATFORM, SERVICES AND SOFTWARE SHALL BE PROVIDED ON AN "AS IS" AND/OR "AS AVAILABLE" BASIS. APEX TRADING AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
ii) APEX TRADING AND OUR SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO SUCH WARRANTIES THAT i) THE PLATFORM, SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; ii) THE PLATFORM, SERVICES OR SOFTWARE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; iii) THAT SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE PLATFORM, SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; iv) QUALITY THE PLATFORM, SERVICES, ANY INFORMATION OR OTHER MATERIAL WHICH MAY BE PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM, SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND v) THAT ANY SUCH ERRORS CONTAINED IN THE SOFTWARE SHALL BE CORRECTED.
iii) ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY WAY OF THE PLATFORM, SERVICES OR SOFTWARE SHALL BE ACCESSED BY YOUR SOLE DISCRETION AND SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER AND/OR INTERNET ACCESS, DOWNLOADING AND/OR DISPLAYING, OR FOR ANY LOSS OF DATA THAT COULD RESULT FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR MATERIAL.
iv) NO ADVICE AND/OR INFORMATION, DESPITE WHETHER WRITTEN OR ORAL, THAT MAY BE OBTAINED BY YOU FROM APEX TRADING OR BY WAY OF OR FROM THE PLATFORM, SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
v) A SMALL PERCENTAGE OF SOME USERS MAY EXPERIENCE SOME DEGREE OF EPILEPTIC SEIZURE WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS THAT MAY BE CONTAINED ON A COMPUTER SCREEN OR WHILE USING THE PLATFORM, SERVICES. CERTAIN CONDITIONS MAY INDUCE A PREVIOUSLY UNKNOWN CONDITION OR UNDETECTED EPILEPTIC SYMPTOM IN USERS WHO HAVE SHOWN NO HISTORY OF ANY PRIOR SEIZURE OR EPILEPSY. SHOULD YOU, ANYONE YOU KNOW OR ANYONE IN YOUR FAMILY HAVE AN EPILEPTIC CONDITION, PLEASE CONSULT A PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE PLATFORM, SERVICES: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
17. INDEMNITY
You hereby agree to indemnify, defend, and hold harmless Apex Trading and its officers, directors, shareholders, subsidiaries, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties“) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation (“Claim”) against any Indemnified Party arising in any manner from: i) your access to or use of the Platform, content, or Services; ii) your unauthorized use of the Apex Trading Software; iii) your user content or any access to or use thereof; iv) any access to or use of your user content; v) your collection, use, and disclosure of any user content, vi) your violation of applicable laws; and vii) your breach of any representation, warranty, or other provision of this TOS. Apex Trading will use reasonable efforts to provide you with notice of any such claim or allegation, and Apex Trading will have the right to participate in the defense of any such claim at its expense.
18. LIMITATION OF LIABILITY
A. WAIVER OF LIABILITY. YOU EXPLICITLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT APEX TRADING AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES WHICH MAY BE RELATED TO THE LOSS OF ANY PROFITS, GOODWILL, USE, DATA AND/OR OTHER INTANGIBLE LOSSES, EVEN THOUGH WE MAY HAVE BEEN ADVISED OF SUCH POSSIBILITY THAT SAID DAMAGES MAY OCCUR, AND RESULT FROM:
i) THE USE OR INABILITY TO USE THE PLATFORM OR SERVICE;
ii) THE COST OF PROCURING SUBSTITUTE SERVICES;
iii) UNAUTHORIZED ACCESS TO OR THE ALTERATION OF YOUR TRANSMISSIONS AND/OR DATA;
iv) STATEMENTS OR CONDUCT OF ANY SUCH THIRD PARTY ON THE PLATFORM;
v) AND ANY OTHER MATTER WHICH MAY BE RELATED TO THE PLATFORM OR SERVICE.
B. MAXIMUM LIABILITY. APEX TRADING’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS TOS AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS TOS OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $500 OR THE GREATER OF $500 OR THE AMOUNTS THAT YOU HAVE ACCEPTED OR PURCHASED THROUGH THE PLATFORM WITHIN LAST 12 MONTHS. YOU AGREE THAT APEX TRADING WOULD NOT ENTER INTO THIS TOS WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
C. EXCLUSION AND LIMITATIONS. THERE ARE SOME JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS OF SECTIONS WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
19. RELEASE
In the event you have a dispute, you agree to release Apex Trading (and its officers, directors, employees, agents, parent subsidiaries, affiliates, co-branders, partners and any other third parties) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way connected to such dispute.
20. SPECIAL ADMONITION RELATED TO FINANCIAL MATTERS
Should you intend to create or to join any service, receive or request any such news, messages, alerts or other information from the Services concerning companies, stock quotes, investments or securities, please review the above Sections Warranty Disclaimers and Limitations of Liability again. In addition, for this particular type of information, the phrase "Let the investor beware" is appropriate. Apex Trading's content is provided primarily for informational purposes, and no content that shall be provided or included in the Services is intended for trading or investing purposes. Apex Trading and our licensors shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted and/or made available by way of the Services, and shall not be responsible or liable for any trading and/or investment decisions based on any such information.
21. TRADEMARK INFORMATION
You herein acknowledge, understand and agree that all of the Apex Trading trademarks, copyright, trade name, service marks, and other Apex Trading logos and any brand features, and/or product and service names are trademarks and as such, are and shall remain the property of Apex Trading. You herein agree not to display and/or use in any manner the Apex Trading logo or marks without obtaining Apex Trading's prior written consent.
22. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS NOTICE & PROCEDURES
Apex Trading will always respect the intellectual property of others, and we ask that you do the same. With regards to appropriate circumstances and at its sole discretion, Apex Trading may disable and/or terminate the Member Accounts of any user who violates our TOS and/or infringes the rights of others. If you feel that your work has been duplicated in such a way that would constitute copyright infringement, or if you believe your intellectual property rights have been otherwise violated, you should provide to us the following information:
i) The electronic or the physical signature of the individual that is authorized on behalf of the owner of the copyright or other intellectual property interest;
ii) A description of the copyrighted work or other intellectual property that you believe has been infringed upon;
iii) A description of the location of the site which you allege has been infringing upon your work;
iv) Your physical address, telephone number, and email address;
v) A statement, in which you state that the alleged and disputed use of your work is not authorized by the copyright owner, its agents or the law;
vi) And finally, a statement, made under penalty of perjury, that the aforementioned information in your notice is truthful and accurate, and that you are the copyright or intellectual property owner, representative or agent authorized to act on the copyright or intellectual property owner's behalf.
The Apex Trading Agent for notice of claims of copyright or other intellectual property infringement can be contacted as follows:
23. ARBITRATION
Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this TOS, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this TOS and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this TOS (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this TOS delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site in Denver, Colorado. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
24. CHOICE OF LAW AND FORUM
It is at the mutual agreement of both you and Apex Trading with regard to the TOS that the relationship between the parties shall be governed by the laws of the state of Colorado without regard to its conflict of law provisions and that any and all claims, negotiations, arbitrations, causes of action and/or disputes, arising out of or relating to the TOS, or the relationship between you and Apex Trading. Subject to Section 25 (ARBITRATION), each party agrees that it will bring any action or proceeding arising from or relating to this TOS exclusively, in the County of Denver, Colorado. You and Apex Trading agree to submit to the jurisdiction of the courts as previously mentioned, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
25. GENERAL INFORMATION
A. Notice. Apex Trading may furnish you with notices, including those with regards to any changes to the TOS, including but not limited to email, regular mail, MMS or SMS, text messaging, postings on the Platform, or other reasonable means currently known or any which may be hereinafter developed. Any such notices may not be received if you violate any aspects of the TOS by accessing the Platform or use the Services in an unauthorized manner. Your acceptance of this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the Platform or Services in an authorized manner.
B. Third Party Beneficiaries. You herein acknowledge, understand and agree, unless otherwise expressly provided in this TOS, that there shall be no third-party beneficiaries to this TOS.
C. Entire Agreement. This TOS constitutes the entire agreement between you and Apex Trading and shall govern the use of the Platform and Services, superseding any prior version of this TOS between you and us with respect to the Platform and Services. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other Apex Trading Services, affiliate services, third-party content or third-party software.
D. Waiver and Severability of Terms. At any time, should Apex Trading fail to exercise or enforce any right or provision of the TOS, such failure shall not constitute a waiver of such right or provision. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
E. No Right of Survivorship Non-Transferability. You acknowledge, understand and agree that your Member Account is non-transferable and any rights to your ID and/or contents within your Member Account shall terminate upon your death. Upon receipt of a copy of a death certificate, your Member Account may be terminated and all contents therein permanently deleted.
F. Statute of Limitations. You acknowledge, understand and agree that regardless of any statute or law to the contrary, any claim or action arising out of or related to the use of the Platform or Services or the TOS must be filed within 1 year(s) after said claim or cause of action arose or shall be forever barred.
G. Violations. Please report any and all violations of this TOS to Apex Trading as follows:
Apex Trading
2219 N Vancouver Ave, Portland, OR 97227