1. Agreement

These Terms of Service (“Terms”) are a binding agreement between Apex, Inc., a Delaware corporation (“Apex,” “we,” “us”), and the person or entity that creates an account or uses the Service (“Customer,” “you”). If you use the Service on behalf of an organization, you represent that you have authority to bind that organization, and “you” means that organization.

By creating an account, clicking to accept, executing an Order Form, or accessing the Service, you agree to these Terms, the Privacy Policy, the Data Processing Agreement, and the Acceptable Use Policy. If you do not agree, do not use the Service.

If you and Apex have signed a Master Service Agreement or Order Form, that document controls where it conflicts with these Terms. Otherwise these Terms control.

2. The Service

Apex is a growth intelligence platform. The Service includes the web dashboard, APIs, MCP server, apex.js snippet, Web SDK, Mobile SDK, Server Events API, Adaptive Journeys, communications, experimentation, attribution, partner-network tooling, Apex Links, and related software and documentation (the “Service”).

Apex may add, change, or discontinue features. Material reductions of a paid feature will be announced with at least 30 days’ notice. Beta or preview features are provided as-is and may be withdrawn at any time. The Service is not sold with a service-level agreement or uptime credit unless an Order Form says otherwise.

3. Accounts

You must be at least 18 years old and able to form a binding contract.
You must provide accurate account information and keep it current.
You are responsible for all activity under your account and for keeping credentials secret. Notify us promptly at legal@apex.inc of unauthorized use.
One legal entity may maintain no more than one free-tier workspace without Apex’s written consent.

4. Definitions for data

Account Data means information about you and your users as Apex customers: names, emails, billing details, workspace settings, and how you use the dashboard. Apex is the controller of Account Data.
Customer Data means data you or your End Users submit to the Service, or that Apex collects on your instructions: events, identities, sessions, experiment designs and outcomes, journey definitions, communication content, contacts, segments, attribution records, ad-platform data pulled when you connect an integration, and partner-program records. You own Customer Data. Apex processes it as your processor, except as Section 6 and Section 7 say otherwise.
End User means a person who visits your properties, receives your communications, or is otherwise a subject of Customer Data. End Users are your customers, not Apex’s.
System Data means logs, usage counters, performance telemetry, and security signals about the Service itself. Apex owns System Data.
Derived Data means information Apex creates from Customer Data or System Data that has been de-identified: it contains no company name, workspace key, URL, raw creative or message content, or persistent End User identifier, and Apex does not attempt to re-identify it. Examples: model weights, scoring calibrations, recommendation quality signals, and statistical patterns. Apex owns Derived Data. De-identified Derived Data is not Customer Data and is not personal information.
Data Co-op means the optional, reciprocal program described in Section 7, through which participating workspaces contribute de-identified patterns and receive industry benchmarks and cross-merchant recommendations.

5. License to Customer Data (Service Improvement)

You grant Apex a worldwide, non-exclusive, royalty-free license to host, copy, process, transmit, display, and create derivative works of Customer Data as needed to provide, secure, support, and maintain the Service.

You also instruct Apex to process Customer Data to develop, improve, train, calibrate, and fine-tune Apex’s models, scoring, beliefs, recommendations, and features for your workspace and to improve the Service those models power for all customers. That instruction is part of the Service, not a side use. Models improved this way may serve other merchants. They will not emit your Customer Data, and Apex will not show another merchant a pattern that identifies you, your organization, or any End User.

Apex may use techniques including machine learning and statistical modeling for this purpose. Apex owns the resulting models, methods, and Derived Data. You keep ownership of Customer Data.

This Section 5 does not, by itself, put your data into the Data Co-op or show another merchant a benchmark that includes you. That requires Section 7.

6. Derived Data and System Data

Apex may generate Derived Data from Customer Data and System Data. Derived Data is Apex Technology. Apex may use Derived Data for any lawful business purpose during and after the term, including improving the Service, operating security and fraud systems, and publishing research that does not identify you or any End User.

External disclosure of Derived Data (including research or public benchmark reports) will meet the de-identification standard in Section 4. Showing another merchant a Co-op benchmark that includes your workspace requires Section 7.

7. Data Co-op (opt-in)

The Data Co-op is off by default. You enable it in workspace settings. Enabling it is your instruction to Apex, as an independent controller of the resulting Co-op outputs, to include the contribution categories then listed in those settings in a cross-merchant pool, and to show you industry benchmarks and recommendations derived from that pool.

The categories that contribute today are hashed, weekly advertising performance summaries (median CPA, CTR, and frequency by industry and ads platform). Apex may add categories (for example experiment-class outcomes or journey performance). A new category does not contribute from your workspace until it is listed in workspace settings. You may turn the Co-op off before a new category starts contributing.

Participation is reciprocal. If you do not enable the Data Co-op, you do not contribute and you do not receive Co-op benchmarks or Co-op-trained cross-merchant recommendations. The rest of the Service, including in-workspace intelligence that uses only your Customer Data, continues. There is no price penalty for staying out.

Co-op contributions are de-identified before they enter the pool. Apex applies minimum-contribution thresholds and suppresses small cells so that outputs are not reasonably linkable to you or any End User. Apex does not publish another merchant’s identity as the source of a benchmark.

You may turn the Data Co-op off at any time. New contributions stop. Outputs already published from prior windows are not unwound. An executed Order Form may forbid participation entirely.

You represent that you have the rights and notices required to instruct this processing, including any End User consent or other lawful basis that applies to your use of the Service and, if you enable it, the Data Co-op.

8. Your warranties and responsibilities

You represent, warrant, and agree that:

You have provided, and will maintain, all notices and obtain all consents or other lawful bases required to collect Customer Data and to instruct Apex to process it as these Terms describe, including Section 5 and, if enabled, Section 7.
Your public privacy policy names Apex (or a category that clearly includes Apex) as a processor or service provider and describes the collection performed by the snippet, SDKs, and integrations you enable.
You will not submit, and will not configure the Service to collect, protected health information, payment card numbers, government identifiers, biometric identifiers, or data about children under 18. The Service is not designed for HIPAA, PCI, or children’s data.
You run your own consent management. Apex does not supply a consent banner for your End Users. Outbound integrations (ads, audiences, CAPI) honor the consent signals you send. If you send none, Apex treats outbound sharing as denied.
You are solely responsible for the content of communications you send through the Service and for CAN-SPAM, TCPA, CASL, and equivalent laws. Transactional and marketing classification in the Service does not make a message lawful.
You are solely responsible for End User claims arising from your properties, your programs, and your use of the Service.
You are responsible for every action taken with your credentials, API keys, and MCP or agent tools, including prompts and tool calls issued by software acting for you.
You are responsible for reviewing AI or ML outputs before you ship, send, spend, or publish them. Apex is not your lawyer, doctor, or investment adviser.
You will not use the Service if you are on an OFAC or similar sanctions list, and you will not permit End Users or partners you know to be sanctioned to use it.

9. Acceptable use

You will comply with the Acceptable Use Policy. You will not reverse engineer the Service, build a competing product from it, scrape it beyond ordinary use, interfere with it, or use it to violate law.

10. Software, SDKs, and MCP

Subject to these Terms and an active account, Apex grants you a limited, non-exclusive, non-transferable, revocable license to install and use the snippet, Web SDK, Mobile SDK, Server Events libraries, and MCP server solely to access the Service. The End User License Agreement adds terms for downloadable software. Open-source components are governed by their own licenses.

11. Artificial intelligence features

Some features use machine learning or third-party inference. Outputs are probabilistic. Apex does not warrant that recommendations, generated copy, experiment suggestions, or belief updates are accurate, complete, or fit for a particular decision. You must review outputs before you rely on them.

Third-party model providers do not receive a license from Apex to train their foundation models on your prompts. Apex may use de-identified inputs and outputs to improve the features you use, consistent with Section 5.

More detail lives in the AI and ML Features terms.

12. Partner Network

If you run a partner program, the Platform Agreement also applies and controls on partner-program matters. Partners are bound by the Partner Program Terms. Apex is not the payor of record for partner payouts. Stripe is.

13. Fees and taxes

The Service is billed on usage meters and any add-ons you select, as shown in the dashboard and at /pricing, or as set in an Order Form. Inbound measurement meters are soft-capped: events keep flowing past the included amount and overage accrues. Outbound meters (communications, ad-network egress, AI generation) pause at the included amount until you accept overage.

Fees are due as invoiced or as charged to your payment method.
You are responsible for applicable taxes, excluding Apex’s income taxes.
Apex may change list prices with 30 days’ notice. Continued use after the effective date is acceptance. Order Form prices control for their term.
You may cancel at any time. Cancellation takes effect at the end of the current billing period. Fees already incurred are not refunded.
After cancellation, Customer Data remains available for export for 30 days and is deleted within 90 days, except records Apex must keep by law (including tax records related to partner payouts).

14. Intellectual property

Apex owns the Service, documentation, trademarks, models, methods, System Data, and Derived Data. Nothing in these Terms transfers that ownership. You own Customer Data and your trademarks. If you give Apex feedback, you assign to Apex all right, title, and interest in that feedback, and Apex may use it without restriction or obligation.

15. Confidentiality

Each party will protect the other’s non-public information with at least reasonable care and use it only to perform under these Terms. Customer Data is your Confidential Information, subject to Sections 5, 6, and 7. The Service’s non-public features, pricing in an Order Form, and security documentation are Apex’s Confidential Information.

16. Disclaimers

THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” APEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. APEX DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY EXPERIMENT RESULT, ATTRIBUTION, BELIEF, FORECAST, BENCHMARK, OR AI OUTPUT WILL BE ACCURATE OR ACTIONABLE.

17. Indemnification

You will defend, indemnify, and hold harmless Apex and its officers, directors, employees, and agents from third-party claims, damages, and reasonable legal fees arising out of: (a) Customer Data; (b) your properties, products, or programs; (c) your communications; (d) your partner-program conduct or your partners’ promotional conduct; (e) your breach of these Terms or of law; (f) an End User claim relating to your use of the Service; or (g) your use or publication of AI or ML output.

Apex will defend and indemnify you against a third-party claim that the Service, as provided by Apex and used as permitted, directly infringes a U.S. patent, copyright, or trademark, excluding claims based on Customer Data, your combinations, your modifications, or AI or ML output. Apex may modify the Service, obtain a license, or terminate the affected feature and refund prepaid unused fees for that feature. This is Apex’s entire liability for intellectual-property claims.

18. Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, APEX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY.

APEX’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE SERVICE, INCLUDING CLAIMS ABOUT DATA, PRIVACY, SECURITY, ATTRIBUTION, OR AI OUTPUT, WILL NOT EXCEED THE AMOUNTS YOU PAID TO APEX FOR THE SERVICE IN THE 12 MONTHS BEFORE THE CLAIM. IF YOU HAVE PAID NOTHING, APEX’S TOTAL LIABILITY IS $100.

These limits apply even if a remedy fails of its essential purpose. They do not limit your payment obligations or your indemnification obligations.

19. Arbitration and class waiver

These Terms are governed by the laws of the State of Delaware, excluding conflict-of-law rules. Except for claims that may be brought in small-claims court, any dispute arising out of or relating to these Terms or the Service will be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The seat of arbitration is Wilmington, Delaware. Judgment on the award may be entered in any court of competent jurisdiction.

YOU AND APEX WAIVE ANY RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION. Claims may be brought only in an individual capacity. If the class waiver is found unenforceable as to a particular claim, that claim must be litigated in the state or federal courts in Delaware, and the rest of this Section remains in force.

If 25 or more similar demands are filed against Apex by the same counsel or coordinated counsel, the AAA Supplementary Rules for Multiple Case Filings apply. The parties will jointly ask the AAA to batch those demands for efficiency. Apex will not pay filing fees for demands that are frivolous or filed in bad faith.

Either party may seek injunctive relief in court to protect intellectual property or confidential information. This Section does not limit a right that cannot be waived under the law of your country of residence if you are an individual acting other than in a business capacity.

20. Suspension and termination

Apex may suspend or terminate access immediately for breach, legal risk, non-payment, or harm to the Service or others. You may stop using the Service at any time. Sections that by their nature should survive (including 5 through 8, 14 through 19, and Apex’s ownership of Derived Data and System Data) survive termination. The Service Improvement license survives to the extent needed for Apex to keep using Derived Data already created.

21. Changes

Apex may update these Terms. The updated Terms will be posted with a new effective date. Material changes take effect 30 days after posting, or sooner if you accept them. Continued use after the effective date is acceptance. If you do not agree, stop using the Service and export your data before the effective date.

22. Miscellaneous

These Terms are the entire agreement for the Service, except an executed MSA or Order Form. You may not assign these Terms without Apex’s consent, except to a successor in connection with a merger or sale of substantially all assets. Apex may assign these Terms. If a provision is unenforceable, the rest remains. Failure to enforce is not a waiver. There are no third-party beneficiaries except the indemnified Apex parties in Section 17. Apex may use your name and logo to identify you as a customer unless you opt out in writing. You may not issue a press release about Apex without consent.

Apex may disclose Customer Data or Account Data if required by law or legal process. Where lawful, Apex will give you notice so you can seek a protective order. Apex has no duty to resist a valid demand.

Neither party is liable for delay caused by events beyond reasonable control. You must notify Apex of a claim within 30 days of first becoming aware of it. Notices to Apex go to legal@apex.inc. Notices to you go to the email on your account.

23. Contact

Apex, Inc. Legal: legal@apex.inc. Privacy: privacy@apex.inc.