Updated: May 3, 2017.
Thank you for using our website, products, and services (“Services”). The Services are provided by ApexLink, Inc. (“ApexLink”), a Minnesota corporation. ApexLink reserves the right to amend or change the terms of this Agreement from time to time with or without notice to you. It is your sole responsibility to access and review these terms regularly.
As used herein, the terms “ApexLink”, “us,” “we,” or “our” refer to ApexLink, Inc., and the terms “you,” “your(s)” shall refer to any User of the services, namely, the subscriber and any of his/her employees, officers, agents, or other parties accessing the website or the Services by way of a subscription. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case, “User” shall also refer to said entity. If you do not have the authority to act as an agent of a User entity, you may not use the Services.
1. Your Use of the Services; Restrictions; Delivery.
1.01. ApexLink hereby grants you a revocable, nonexclusive, nontransferable, worldwide right to access and use the Services solely for the User’s own internal business purposes, subject to this Agreement and the terms of the Subscription voluntarily selected and authorized by the User. Any rights not expressly granted by this Agreement are hereby reserved by ApexLink.
1.02. You must abide by any policies, instructions, or other directions made available to you within and for the duration of your use of the Services. You may not interfere with or attempt to access our Services using a method other than the interface and instructions provided to you or reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service. You may only use our Services as permitted by law, including any international laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
1.03. Using our services does not give you ownership of any Intellectual Property Rights in our Services or the Content you access. You may not copy or use Content from our Services or modify or make derivative works based on our Services or Content unless you obtain permission in a signed writing from ApexLink or are otherwise permitted by law, in which case you must notify ApexLink at least thirty (30) days prior to such lawfully permitted use not provided for in this Agreement, to allow for verification of such use’s lawfulness. You may not remove, obscure, or alter any legal notices displayed in or along with our Services.
1.04. These terms do not grant you the right to use any branding or logos of ApexLink or those used within our Services. Unless specifically provided hereunder User has no right to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (ii) co-brand the Service, Content or any portion thereof (i.e., display any name, logo, trademark or other means of attribution or identification of any User in any way that suggests a partnership, affiliation, or sponsorship between ApexLink and any User or third party); or (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device (whereby the Service or portion thereof will appear on the same screen with a portion of another website).
1.05. Conditional upon payment of the applicable subscription fees, ApexLink will provide and deliver web-based access to the Services, subject strictly to the terms of this Agreement.
2. User’s Responsibilities.
2.01. User is solely responsible for all activity occurring with regard to User’s account(s) and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
2.03. User shall keep ApexLink informed as to the User’s most current personal contact and billing information, including an active e-mail address, notifying ApexLink immediately of any changes to such information. User shall be responsible for the protection of his/her own log-in credentials and password, and must notify ApexLink immediately of any unauthorized disclosure or use of his/her password or account and any other known or suspected breaches of security. User may not use the log in credentials of or impersonate another ApexLink User or provide false identification information to ApexLink to gain access to or use the Service.
3. Account Information & User Data.
3.02. Because User data will be stored and utilized through the Services, User allows and acknowledges that it may at times be viewed, accessed, or utilized by ApexLink for the purposes of resolving an issue, improving and providing customer support services, investigating a suspected violation of the Subscription Agreement, improving and facilitating business functions, or as may be required by law. ApexLink may, if necessary, also utilize a third party service for the purposes of improving the Services, which may require third party access to said data. Any third party service providers shall be subject to a confidentiality agreement regarding User Data.
3.03. ApexLink reserves the right to suspend, withhold, permanently remove and/or discard User Content and Data without notice for any breach or threat of breach of the Agreement, including, without limitation, User’s non-payment of Service fees. Upon termination, User’s right to access or use User Data shall immediately cease, and ApexLink shall have no obligation to maintain, preserve, or forward any User Data. It is User’s sole responsibility to maintain copies of any and all User Content and User Data, and User expressly agrees and acknowledges that ApexLink shall bear no responsibility as to the safekeeping of unique copies of User Data.
4. Intellectual Property Rights.
4.01. The Services, including the website and any materials distributed by ApexLink in connection with the Services, are intended solely for the use of ApexLink’s Users in accordance with the terms of this Agreement. ApexLink shall own all rights to, title and interest in the ApexLink technology, Services, content, Intellectual Property Rights, and all Intellectual Property contained therein. Some technology may be licensed by ApexLink in order to provide the Services to you, and ApexLink holds no liability pertaining to such third party technology.
4.02. For purposes of this Agreement, “Intellectual Property” means all Intellectual Property Rights that have been registered, filed, certified or otherwise perfected or recorded with or by any governmental entity or quasi-public legal authority (including domain name registrars), or any applications for any of the foregoing. “Intellectual Property Rights” means worldwide, any (i) patents, inventions (whether or not patentable), discoveries, improvements, methods, processes; (ii) copyrights works of authorship (including computer programs, in source code and executable code form), moral rights, rights of publicity and privacy, proprietary and confidential information; (iii) trade secrets, and know-how, databases, data compilations and collections, and customer and technical data; (iv) trademarks, trade names, logos, service marks, designs, emblems, signs, insignia, slogans, other similar designations of source or origin and general intangibles of like nature, together with the goodwill of the Agency or the Agency’s business symbolized by any of the foregoing; (v) domain names and web addresses, (vi) analogous rights to those set forth above and any other intellectual property rights in any jurisdiction; and (vii) rights to sue for past, present and future Infringement of the rights set forth above.
4.03. User agrees to and hereby assigns to ApexLink the rights to use all information, ideas, and enhancements by request or suggestion, feedback, recommendations or other information provided by the User in connection with the Service.
4.04. The Site is protected pursuant to US copyright laws, international conventions and treatises, and any other applicable intellectual property laws. User may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform or display publicly, or in any way exploit any of the content, Intellectual Property Rights, software, materials, or Services, in whole or in part outside of the bounds and permissions of this Agreement. User may not alter, remove, or cause to be altered or removed, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any ApexLink content.
4.06. ApexLink is the sole owner of the software utilized in connection with the Services, and the User’s right to use the Services does not grant any permission to the User to disassemble, reverse engineer, decompile or otherwise attempt to decipher any code inherent therein, or to utilize the software in any way other than through the interface provided for the User’s main business purposes or outside of the terms of this Agreement. You are also prohibited from circumventing or disabling any security or other technical features or functions of ApexLink’s Service or any other aspect of the software in any manner in order to attempt to gain access to ApexLink’s property management systems and software.
5. Subscription Fees & Billing.
5.01. Your access to the Service is contingent on your payment of the Service fees required by your Subscription Agreement. All fees are non-refundable. All amounts payable hereunder shall be paid in U.S. dollars. ApexLink reserves the right to periodically increase or change our fee structure. Notice of price structure changes shall be given at least fifteen (15) days prior to the renewal date of your Service Agreement.
5.02. Services are considered rendered/delivered on the date access to the system is granted, and payment for each billing cycle shall be made in full prior to the start of any billing term. ApexLink reserves the right to wait until payment is cleared to render the Services.
5.03. As a condition of your Subscription, you must provide ApexLink with a valid credit card for the processing of fees in connection with your subscription. By subscribing to our Services, you expressly authorize ApexLink to initiate the transfer of payments and renewal fees from you to ApexLink, via the payment method provided.
5.04. All fees listed by ApexLink are exclusive of taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all taxes and government fees incurred by your subscription to our Services. Your invoice may include such taxes and fees that ApexLink is required or permitted to collect by the applicable taxing jurisdictions.
5.05. User has the right to change the Subscription level at any time during the term by written notice to ApexLink. Such changes in subscription terms shall be applicable to the billing cycle immediately following such notice, provided such notice is given more than twenty-four (24) hours prior to your billing date. The new rate will be charged to your credit card on file. Neither the expiration of your Subscription or the renewal date of your account, whether monthly or annual, will not be effected. Fees will not be refunded or pro-rated for services already rendered, and may not be credited towards other Services or terms.
5.06. A monthly interest charge at the maximum rate allowable by law will be assessed and payable on all payments more than fifteen (15) days past due. Early termination by User shall not relieve you of your duty to pay such past due amounts. ApexLink reserves the right to suspend or terminate access to any accounts holding a past due balance and the User is liable for any losses or damages incurred as a result of such suspensions or terminations.
5.07. Accounts suspended or restricted for unpaid balances shall be subject to a $400 re-activation fee. Accounts that remain inactive for sixty (60) days or more due to unpaid balances may result in data destruction, cancellation of Subscription Agreement and the acceleration of fees due thereunder. ApexLink has no obligation to retain User Data upon suspension or termination of a subscription and such User Data may be irretrievably deleted if User’s account is sixty (60) days or more delinquent.
5.08. ApexLink reserves the right to submit accounts that are left unpaid for more than 60 days to collection agencies and to report uncollected balances to credit bureaus and reporting companies. Upon receipt of the Services, the User agrees to assume responsibility for any collection costs including, but not limited to collection agency fees, attorneys fees, reporting/removing data from credit bureaus, plus interest at the maximum rate allowable by law, in connection with unpaid balances.
6. Term & Termination.
6.01. The term of your Subscription shall commence on the date the Subscription is initiated by User by submission of the applicable fees and registration form with ApexLink. ApexLink shall provide access to the Services for successive renewal terms specified by your Subscription Agreement, subject to your payment of the applicable fees, until your Subscription is terminated in accordance with this Agreement.
6.02. Subscription Agreements may be terminated by User by a signed written communication delivered to ApexLink at least thirty (30) days prior to the renewal date of the subscription. Notice of such terminations must be sent via first class or certified mail to:
1083 N. Collier Blvd, #353
Marco Island, FL 34145
6.03. For monthly Subscriptions, the User is purchasing a renewing Subscription to the Service for an initial term of one month, at the end of which the User is automatically charged for subsequent month-long terms on a continuous basis until the Subscription is terminated. Subscription fees must be paid prior to the commencement of each term. If User terminates Service prior to the end of a monthly term, User shall remain responsible for that month’s full fee, including, without limitation, any unbilled charges, which will immediately become due and payable.
6.04. For fixed term annual subscribers (i.e., twelve (12) months), User has committed to purchase the Service for the full annual term, to be paid in advance on an annual basis. User’s annual subscription renews automatically after the initial year-long term is over, unless terminated by ApexLink as herein provided. User may cancel the Service prior to expiration of the annual term without refund. User shall pay all accrued but unpaid fees upon expiration of the term of or termination of Service.
6.05. If User cancels the Service before the end of the term, the cancellation will take effect immediately. Upon cancellation, User’s access to the Site will be terminated and all information contained within User’s account may be automatically, permanently and irreversibly deleted. ApexLink accepts no liability for such deleted information or User Data.
6.06. ApexLink reserves the right to suspend or terminate any User’s access to the Services without notice in the event of:
- A breach or threat of breach of any provision of this Agreement that is not cured within three (3) days of ApexLink’s notification of such breach or unlawful use, provided the activity is so curable;
- Any failure to fulfill payment obligations or other responsibilities under this Agreement past sixty (60) days;
- Any unauthorized use of the Site or Services to transmit infringing, libelous, obscene, threatening, or otherwise unsafe, malicious, abusive, tortious, or unlawful materials;
- Any use of ApexLink’s Site or Services to store or transmit any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs, or to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- Any use that interferes with or disrupts the integrity or performance of the Site or Services;
- Any misappropriation of ApexLink’s Intellectual Property or Intellectual Property Rights; or
- If User becomes insolvent, files for bankruptcy, or otherwise goes out of business.
6.08. In the event ApexLink initiates the termination of the Subscription and the User is paid in full through the termination period, the User will be provided temporary, limited access to the User’s data for retrieval for a period not to exceed thirty 30 days.
7. Warranties & Disclaimers.
7.02. User represents and warrants that User has not falsely identified itself nor provided any false information to gain access to the Service and that User’s billing information is correct and current.
7.03. ApexLink warrants that the Services shall perform substantially in accordance with the customary industry standards for performance of software as a service applications. User’s exclusive remedy and ApexLink’s sole liability under this warranty shall be for ApexLink to correct any material failure of the Services to perform as warranted, if such failure is reported to ApexLink promptly upon discovery of such failure and adequate information and access to systems is provided to remedy the defect in question. ApexLink makes no warranties whatsoever regarding the retention of User Data or Content within the ApexLink system and Users are solely responsible for maintaining separate and backup records of all such data transmitted to ApexLink.
7.04. User acknowledges and agrees that there are certain security risks inherent with the use of open networks such as the Internet and User expressly assumes such risks. You further acknowledge that ApexLink is not responsible for any services provided by a third party, including internet service providers.
7.05. DISCLAIMER: THE ABOVE ARE THE ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY APEXLINK AND APEXLINK DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERRORFREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APEXLINK, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT. SUCH WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE SO LONG AS APEXLINK IS MAKING GOOD FAITH EFFORTS TO CORRECT DEFECTS OR FAILURES UNDER THE TERMS OF THE WARRANTY. USER FURTHER ACKNOWLEDGES THAT THE USE OF THE SERVICES SHOULD NOT REPLACE WELL ESTABLISHED COMMUNICATION METHODS AND THAT CUSTOMERS AND END USERS SHOULD TAKE STEPS TO COPY AND MAINTAIN ALL DATA AND CORRESPONDENCE PROCESSED AND/OR STORED VIA/ON THE PRODUCTS IN A SEPARATE MANNER IN THE EVENT OF A FAILURE. APEXLINK MAKES NO FURTHER WARRANTIES TO THE DATA RETENTION ABILITIES OF THE SERVICES IN THE EVENT THAT A USER’S ACCOUNT MUST BE ACCESSED BY APEXLINK FOR PERFORMANCE TROUBLESHOOTING OR OTHER SERVICE UPGRADES AS DIRECTED BY USER. USER’S REQUEST FOR TECHNICAL ASSISTANCE FROM APEXLINK SHALL CONSTITUTE EXPRESS CONSENT TO THIS DISCLAIMER.
APEXLINK FURTHER DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO ANY FEDERAL OR STATE STATUTES OR REGULATIONS THAT MAY BE APPLICABLE TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH THE SERVICES OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
7.07. ApexLink’s Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. ApexLink is not responsible for any delays, delivery failures, interruptions in account access, or other damage resulting from such problems.
8.01. User agrees to indemnify, hold harmless, and defend us and all of our employees, officers, directors and agents from any and all claims, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities (including reasonable attorneys’ fees, court costs and expenses) arising out of or relating to (i) your use of the Services in violation of the Agreement, (ii) any actual or alleged breach by you of any representation, warranty, covenant, or obligation under the Agreement, or (iii) your gross negligence or willful misconduct. Your indemnification obligations under this Section shall survive any termination or expiration of your Subscription Agreement.
8.02. The indemnifying party’s obligations to the indemnified party under this Section 8 above are conditioned upon the indemnified party providing reasonable notice and information to the indemnifying party, and the indemnified party has the sole right to control the defense and settlement of any such claim invoking the indemnification provision.
“Confidential Information” means all business or technical information of Discloser, whether it is received, accessed or viewed by Recipient in writing, visually, electronically or orally. Confidential Information shall include, without limitation, technical information, marketing and business plans, databases, specifications, formulations, tooling, prototypes, sketches, models, drawings, specifications, procurement requirements, engineering information, samples, computer software (source and object codes), forecasts, identity of or details about actual or potential customers or projects, techniques, inventions, discoveries, know-how and trade secrets.
"Confidential Information" also includes all such business or technical information of any third party that is in the possession of Discloser. Notwithstanding the foregoing, any information disclosed by the Parties will be considered Confidential Information of Discloser, only if such information (i) is conspicuously designated as "Confidential" or "Proprietary” or would reasonably be regarded as being of a confidential nature, or (ii) if provided orally or visually, is identified as confidential at the time of disclosure, or would reasonably be regarded as being of a confidential nature.
“Content” (Whether of User or ApexLink) means, the audio and visual information, documents, viewable software, products and services contained or made available in the course of using or maintaining the Service or the Site.
“Entity Users” refers to those Users that are authorized by a representative of a single entity to use the Services to access the organization’s account and the Services for which the representative entity is liable.
“Fees” means the fees and charges that ApexLink imposes on Users for License and the Use of the Services.
“Initial Term” means the initial period during which User is obligated to pay for the Service as indicated by the billing frequency selected by User during the subscription process (either monthly or annually).
“Intellectual Property” means all Intellectual Property Rights that have been registered, filed, certified or otherwise perfected or recorded with or by any governmental entity or quasi-public legal authority (including domain name registrars), or any applications for any of the foregoing.
“Intellectual Property Rights” mean worldwide any (i) patents, inventions (whether or not patentable), discoveries, improvements, methods, processes; (ii) copyrights works of authorship (including computer programs, in source code and executable code form), moral rights, rights of publicity and privacy, proprietary and confidential information; (iii) trade secrets, and know-how, databases, data compilations and collections, and customer and technical data; (iv) trademarks, trade names, logos, service marks, designs, emblems, signs, insignia, slogans, other similar designations of source or origin and general intangibles of like nature, together with the goodwill of ApexLink or its business symbolized by any of the foregoing; (v) domain names and web addresses, (vi) analogous rights to those set forth above and any other intellectual property rights in any jurisdiction; and (vii) rights to sue for past, present and future Infringement of the rights set forth above.
“Service(s)” means ApexLink’s Website and any edition of ApexLink’s online property management, portfolio management, lease administration, billing, data analysis, contact management, activity management or other services identified during the ordering process, developed, operated, and maintained by ApexLink, accessible via http://www.ApexLink.com or another designated web site or IP address, or ancillary services rendered to User by ApexLink, to which User is being granted access under this Agreement.
“Site” or “Website” means http://www.ApexLink.com or another designated or linked web site or IP address owned and operated by ApexLink.
“Subscription” or “Subscription Agreement” refers to the contract between ApexLink and User for the exchange of payment for access to the property management software, as elected by User in the registration process.
“User(s)” means anyone who is authorized to use the Services, and includes those utilizing a User identification and password or those visiting or viewing the Website.
“User Data” means any and all data information or material submitted, uploaded, or otherwise transferred by User in the course of using the Service.
10.01. Choice of Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Minnesota (without regard to the principles of conflicts of law). Any action or proceeding concerning, related to, regarding, or commenced in connection with the Agreement must be brought in a state or federal court located in Ramsey County, Minnesota, and the parties to the Agreement hereby irrevocably submit to the personal jurisdiction of such courts and waive any objection they may now or hereafter have as to the venue of any such action or proceeding brought in any such court, or that any such court is an inconvenient forum.
10.02. Survival, Full Force and Effect. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
10.03. No Joint Venture or Partnership. The parties are independent contractors and no joint venture, partnership, employment, or agency relationship exists between User and ApexLink as a result of this Agreement or use of the Service.
10.04. No Waiver of Rights. The failure of ApexLink to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.
10.06. Confidentiality. User and ApexLink agree to maintain the confidentiality of the Agreement and the other party's Confidential Information using reasonable commercial efforts but in no event less than the degree of care and security as each uses to maintain the confidentiality of its own most Confidential Information. Neither party's Confidential Information shall be disclosed by the other party to any third party except as permitted under this Agreement or as required by law. Information shall not be considered to be Confidential Information if it: (i) was in the public domain at the time it was disclosed or enters the public domain without violation of this Agreement; (ii) was known to either party, without restriction, at the time of the disclosure as shown by the files of the disclosing party in existence at the time of disclosure; (iii) was independently developed by the receiving party; or (iv) becomes known to the receiving party, without restriction, from a third party without breach of this Agreement and otherwise not in violation of either party's rights. If either party is confronted with a legal mandate to disclose any portion of the other party's Confidential Information, that party shall promptly notify and assist the other (at the other party's expense) in obtaining a protective order or other similar order, and shall thereafter disclose only the minimum of the other party's Confidential Information that is required to be disclosed in order to comply with the legal action, whether or not a protective order or other order has been obtained. Notwithstanding the foregoing, each of the parties may disclose the terms of this Agreement to its accountants, attorneys and potential investors, acquirers and financing partners in confidence.
10.09. Assignment Restrictions. The User may not assign or transfer this Agreement or any rights or obligations under this Agreement to any other person without the express prior written consent of ApexLink unless assigned to a successor in interest, or pursuant to a corporate merger, reorganization or asset acquisition whereby the User provides ApexLink with a minimum of thirty (30) days’ notice in advance of the transaction. ApexLink will not unreasonably withhold consent for User’s assignment related to any other circumstances when advance notice is provided. ApexLink reserves the right to freely assign this Agreement without the consent of User. Subject to this Assignment clause, this Agreement binds and inures to the benefit of both parties, their respective successors and permitted assigns.
10.12. Notice: ApexLink may give notice by means of a general notice on the Service; electronic mail to User’s email address on record in ApexLink’s account information, or by written communication sent by first class mail or pre-paid post to User’s address on record in ApexLink’s account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). User may give notice to ApexLink (such notice shall be deemed given when received by ApexLink) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to ApexLink at the following address:
ATTN: Legal Department
1083 N. Collier Blvd, #353
Marco Island, FL 34145