TERMS AND CONDITION
Last Updated: July 2020
Table of Contents
How this Agreement Works
- Terms and Conditions. By visiting, accessing, or using any part of our Services, you expressly accept, agree, and consent to the terms and conditions of this Agreement. Your continued use of the Services after any modification to the Services or update to this Agreement, constitutes your conclusive acceptance of such change. If you do not agree to these terms and conditions of use, you must not use any portion of the Services and your sole remedy is to discontinue your use of the Services.
- Additional Terms.To the extent APEX provides you notice of different or additional terms or practices, those additional terms will govern your use of the Services.
- Eligibility. You may only use the Services if you are at least eighteen (18) years of age.
- Updates. APEX may modify this Agreement at any time. Such modification will become effective immediately upon either posting of the modified agreement or APEX’s notification of users.
- Modification and Termination. APEX operates the Services in its sole and complete discretion. APEX may modify the Services at any time for any reason, including changes to features, content, functionality, or software. APEX may suspend all or any portion of the Services, including for periodic maintenance, equipment malfunctions or causes beyond APEX's control. APEX may also terminate the Services in entirety. APEX is not liable for any such modification, suspension, or termination of the Services.
Use of Service
- Copyright and Trademarks. All content hosted on the Services is copyrighted under the law as collective work and/or compilation. APEX holds and owns the copyright, and all other proprietary and intellectual property rights and title, to the collective work, including the pages, graphics, design, text, sound recordings, images, materials, and content of the Services, some of which may be trademarked. You agree not to copy, reproduce, alter, modify, decompile, reverse engineer, distribute, transfer, sell, transmit, translate, publish, perform, license, or create derivative works from the content of the Services, including any information, products, or services, without APEX's express written consent. The Services are solely for your personal, non-commercial use. Subject to these and any other express restrictions with regard to specific material, you may download information concerning APEX services or membership from the Services solely for your personal non-commercial use, including information concerning membership type, status, enrollment date, contact information, club usage, transactions, packages and/or payment accounts.
- Health and Wellness Information. The Services contain information about leading a healthy way of life, including information on health, wellness, and fitness issues. Such information does not represent medical diagnosis, treatment, or care and should not be used in place of consultation with or advice from your healthcare professionals. You should consult your physician or healthcare professional before beginning or altering your personal exercise, diet, or nutritional supplement program. Any health information you post on the discussion board or forum may be viewed by other users of the Services.
- Electronic Communications. When you use the Services, you communicate electronically with APEX. You expressly consent to receipt of electronic communications from APEX through posts on the Services and via the email you provided when setting up a user account. All agreements, notices, disclosures, authorizations, verifications, confirmations, or other electronic communications APEX provides according to this paragraph satisfy any legal requirement for written communication.
- Equipment. You are solely responsible for purchasing, maintaining, and ensuring all equipment, programs, and services necessary for, and compatible with, your access to and use of the Services, including hardware and software; electrical, telecommunications and internet access connections and links; and web browsers.
- Your Content. You retain all rights, responsibility, and ownership of your content. You may only post User Content that you created or have permission to use. APEX is not responsible for any User Content posted on the Services, nor does it control the content made available by users. APEX makes no representations or warranties concerning efforts to review or monitor User Content, including the extent to which it may be considered or construed as personal, private, inappropriate, inaccurate, offensive, profane, misleading or otherwise objectionable. While APEX does not pre-approve or pre-screen User Content, APEX may disable, remove, or delete any User Content. APEX is not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of, or reliance upon, any such User Content.
- License to User Content. By posting, including on discussion boards or forums, submitting, transmitting, emailing, messaging, uploading, sharing, or otherwise making available (hereinafter “post” or “posting”) any messages, text, files, images, video, photos, sounds, or other materials on or through the Services (“User Content”), you grant APEX an irrevocable, perpetual, fully paid, non-exclusive worldwide right to use, reproduce, display, distribute, adapt, perform and prepare derivative works of the User Content on the Services. APEX does not need any further approval for its uses of your User Content.
- In accordance with the DMCA, APEX may delete, remove, or disable any infringing work, and may forward to the alleged infringer your written notice and a notice that the work has been deleted, removed, or disabled. APEX reserves the right to terminate members who post infringing work.
- Passwords and Security. Registering for the Services may require you to create a username and a password. You agree to maintain the security, confidentiality, and integrity of your username, password, and any other security measures employed on the Services. You are responsible for all access to and use of the Services, including all financial transactions, under your username and password, including access or use by any partner, secondary, or additional member, if applicable, whether or not authorized by you. You agree to immediately notify APEX of any breach of security, including unauthorized use of your username or password, and to immediately take all reasonable steps to prevent its further occurrence, including changing your password.
- Accuracy of Personal Information. You represent and warrant that all information provided to APEX through the Services is current, accurate, complete and truthful, including all initial or updated registration or membership information, such as the legal name, street address, email address, telephone number, and financial transaction account information related to you or anyone on your membership. You further represent and warrant that you are an authorized account holder of any financial transaction account which you provide to APEX through the Services for payment of membership dues, Club Tab, or other transaction.
- Termination of Use. APEX may block, restrict, disable, suspend, or terminate your access to or use of all or any parts of the Services without prior notice or liability to you.
- Inappropriate Use. You will not post, submit, transmit, email, upload, share, store or otherwise make available any User Content that, in APEX’s judgment:
- Is unlawful, illegal, threatening, abusive, harassing, stalking, intimidating, libelous, false, defamatory, invasive of another's privacy or publicity rights, violent, vulgar, obscene, profane, sexual in nature, harmful to individuals, including minors, or is otherwise objectionable, offensive or improper; Is hateful toward an individual or group of individuals on the basis of gender, sexual orientation, race, ethnicity, age, disability, or religion;
- Violates any contract or agreement you have with APEX, including your Member Usage Agreement and General Terms Agreement (these agreements only apply to APEX Members);
- Includes personal or identifying information about another person without that person's affirmative consent;
- Is false, fraudulent, misleading, or deceptive;
- Constitutes or contains any form of commercial advertising, marketing, solicitation or promotion, including messages and links for commercial purpose or benefit and any affiliate marketing, link referral code, junk mail, spam, chain letters, or pyramid or Ponzi schemes; or
- May interrupt, limit, overburden, damage, impair, destroy or otherwise negatively impact the functionality or use of the Services, including User Content with a software virus or User Content in an excessive amount (e.g., flooding attack).
- If you believe any User Content does not apply with these guidelines, please contact us at apex-hp.com/contact.
Your Warranty and Indemnification Obligations
- ASSUMPTION OF RISK AND WAIVER OF LIABILITY. THERE ARE RISKS INHERENT IN ACCESSING AND USING THE SERVICES, INCLUDING LOSS, THEFT, BREACH, MISUSE, OR UNAUTHORIZED USE OF PERSONAL INFORMATION. YOU EXPRESSLY ASSUME THESE RISKS, WILL ACCESS AND USE THE SERVICES AT YOUR OWN RISK, AND WAIVE ANY AND ALL CLAIMS AGAINST APEX, AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, RELATED TO SUCH ACCESS OR USE (INCLUDING CLAIMS ON BEHALF OF MINORS ON YOUR MEMBERSHIP) FOR ANY DAMAGE, LOSS, OR INJURY OF ANY KIND SUSTAINED BY YOU OR ANY PERSON ON YOUR MEMBERSHIP CAUSED AS A RESULT OF APEX'S NEGLIGENCE. THIS DOES NOT WAIVE CLAIMS RESULTING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR RECKLESS DISREGARD, UNLESS PROHIBITED BY APPLICABLE PRIVACY LAW.
- INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS APEX AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, FROM AND AGAINST ANY AND ALL LOSS, EXPENSES, DAMAGES, AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS FEES, RESULTING, WHETHER DIRECTLY OR INDIRECTLY, FROM YOUR VIOLATION OF THIS AGREEMENT. YOU ALSO AGREE TO INDEMNIFY AND HOLD HARMLESS APEX AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, FROM AND AGAINST ANY AND ALL CLAIMS BROUGHT BY THIRD PARTIES ARISING OUT OF YOUR USE OF THE SERVICES IN BREACH OF THIS AGREEMENT OR THE USER CONTENT I MAKE AVAILABLE VIA THE SERVICES BY ANY MEANS, INCLUDING WITHOUT LIMITATION THROUGH A POSTING, A LINK, REFERENCE TO USER CONTENT, OR OTHERWISE, UNLESS PROHIBITED BY APPLICABLE LAW.
DISCLAIMER OF WARRANTIES
YOU ARE ACCESSING THE SERVICES ON AN “AS IS, WHERE IS, AND AS AVAILABLE” BASIS. APEX IS NOT RESPONSIBLE FOR PROBLEMS ARISING FROM, OR INADEQUACIES IN THE CONTENT OF THE SERVICES OR ANY PARTICULAR FEATURES OR SERVICES OFFERED. APEX DOES NOT REPRESENT OR WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE INFORMATION, MATERIALS, AND SERVICES ON THE SERVICES OR THE ERROR-FREE USE OF THE SERVICES. APEX IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET, INCLUDING INJURY OR DAMAGE TO USERS AND/OR MEMBERS OR TO ANY OTHER PERSON'S COMPUTER RELATED TO OR RESULTING FROM ACCESS TO OR USE OF THE SERVICES. APEX IS PROVIDING THE SERVICES WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND FREEDOM FROM A COMPUTER VIRUS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
LIMITATION OF LIABILITY
IN NO EVENT WILL APEX AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES, YOUR INABILITY TO USE OR MALFUNCTIONS OF THE SERVICES, STATEMENTS OR CONDUCT OF ANY THIRD PARTY RELATING TO THE SERVICES.
ARBITRATION AGREEMENT WITH CLASS ACTION WAIVER
- Mandatory Binding Individual Arbitration. Except as expressly provided below, APEX and I (each a “party” or, together, “us,” “we” or “parties”) agree that any dispute, claim, case, or controversy (whether based in tort, contract, statute, regulation, ordinance, equity or any other legal theory) between us (whether arising out of or relating to past, present or future acts or omissions) (“Claims”) shall be exclusively resolved by binding arbitration on an individual basis, rather than in court (“Arbitration Agreement”).
- Waiver of Class Actions. We each agree that we will assert Claims in arbitration only in our individual capacity, and not as a representative or member of any purported class. We each agree that we will not participate in any class, mass, collective, consolidated, private attorney general or other representative arbitration proceeding. Each party agrees that the arbitrator has no authority to arbitrate Claims on a class-wide basis and shall not consolidate, combine, or jointly arbitrate Claims of more than one person in a single arbitration.
- Waiver of Jury Trial. We waive our constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, electing instead to resolve by binding arbitration all Claims.
- Claims Not Subject to Arbitration. There are only three exceptions to this Arbitration Agreement:
- Small Claims. Either party may bring individual Claims in small claims court.
- Personal Injury Claims. Both parties must litigate personal injury Claims in court. For purposes of this exception, personal injury Claims are Claims arising from injury to the physical structure of the human body.
- Emergency Equitable Relief. Either party may seek temporary injunctive relief or other equitable relief in court pending arbitration. A request for interim measures will not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Arbitration Procedures. Either party may initiate an arbitration proceeding, which will be conducted by a single neutral arbitrator.
- Arbitration Providers. Each party has a choice of initiating arbitration before either the American Arbitration Association (“AAA”) or JAMS, which are both established alternative dispute resolution providers (“ADR Providers”). If neither AAA nor JAMS is available to arbitrate, we will agree to select an alternative ADR Provider to administer the arbitration in this Arbitration Agreement.
- Arbitration Rules. The arbitration will be conducted under the AAA Consumer Arbitration Rules (available at www.adr.org) or JAMS Streamlined Arbitration Rules and Procedures (available at www.jamsadr.com) (“Arbitration Rules”). The rules of the ADR Provider will govern all aspects of the arbitration, except to the extent such rules are in conflict with this Arbitration Agreement.
- Arbitration Location. The arbitration hearing will be held at the ADR Provider’s location that is closest to the claimant’s primary residence, unless the claimant primarily resides outside the United States (in which case the arbitrator will give the parties reasonable notice of the date, time and place of any oral hearings.)
- Fees. Payment of all filing, administrative, and arbitrator fees will be governed by the Arbitration Rules.
- Arbitrator’s Authority and Award. The arbitrator will decide the rights and liabilities, if any, of the parties, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any Claim. The arbitrator will have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s Rules, and this Arbitration Agreement. The arbitrator will issue a written award and reasoned statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. Any award will be subject to judicial confirmation or entry in any court having jurisdiction.
- Governing Law. This Arbitration Agreement is governed by the Federal Arbitration Act and federal arbitration law.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement or to enforce an arbitration award.
Waiver and Severability.
To the extent that a court of competent jurisdiction determines any part of the terms and conditions in this Agreement to be invalid or unenforceable, that part will be modified by the court solely to the extent necessary to cause that part to be enforceable, and the remainder of the Agreement will remain in full force and effect. APEX’s failure to exercise or enforce a legal right, remedy or benefit which is contained in the Agreement or any applicable law does not constitute waiver of its right to do so later.
YOU HAVE READ, UNDERSTAND, AND VOLUNTARILY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS USE AGREEMENT.