- Applicability. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Apex Locating Services, LLC (“Apex”) to the customer (“Customer”) identified in the accompanying order confirmation (the “Order Confirmation”). The Order Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern. These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
- Services. APEX shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms. APEX may use some or all of the equipment identified on Exhibit A in performing the Services (the “Equipment”). Customer acknowledges and agrees that the Services are subject to the limitation of the Equipment as described in Exhibit A and Customer is solely responsible for making any determinations to drill, excavate, or perform any other destructive processes. Customer acknowledges that (a) any maps or CAD drawings provided by APEX in connection with the Services are not survey quality; (b) the Services do not include any investigation, analysis, or interpretation of soil composition, soil conditions, or geophysical, geological, engineering, or land surveying information; and (c) APEX, in performing the Services, only reports retrieved data and does not provide any geophysical, geological, engineering, or land surveying services. APEX shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only. APEX makes no warranty or representation that it will locate all items.
- Customer’s Obligations. Customer shall:
- cooperate with APEX in all matters relating to the Services;
- b) respond promptly to any APEX request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for APEX to perform the Services;
- c) provide such customer materials or information as APEX may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects;
- d) prepare Customer’s premises or any other location where the Services are to be performed for scanning, including, but not limited to, clearly identifying the areas to be scanned, securing access to such areas being scanned, and keeping such areas clear and free of obstructions;
- e) de-energize utilities and provide known utility locations when/where possible;
- f) provide layout for areas to be drilled, sawcut, broken-out, excavated, or scanned;
- g) provide safety rails, covers, platforms, and other safety equipment and materials;
- h) ensure that working conditions on Customer’s premises or any other location where the Services are to be performed are safe; and
- i) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
- Customer’s Acts or Omissions. If APEX’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, APEX shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Fees and Expenses; Payment Terms; Taxes. In consideration of the provision of the Services by APEX and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation. Customer shall pay all invoiced amounts due to APEX on receipt of APEX’s invoice. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
- Intellectual Property; Use of Information.
(A) All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, proprietary code and software, methods, ideas, concepts, expertise, function and technical architectures, techniques and skills, regardless of whether or not such are patentable, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of APEX in the course of performing the Services (collectively, the “Deliverables”) shall be owned by APEX. Customer hereby assigns to APEX, without any additional consideration, any and all intellectual property rights that Customer may have as a result of the Services and will provide its reasonable cooperation, at APEX’ expense, to execute any instrument or documentation that may be necessary to effectuate APEX’ rights over such intellectual property rights. To the extent that any such assignment cannot be effectuated, then Customer hereby grants APEX an exclusive, perpetual, royalty-free, sub-licensable, freely assignable, transferable license to use, reproduce, make, exploit, improve, and sell such intellectual property.
(B) Subject to Customer’s full payment of the Services, APEX hereby grants Customer a license to use all Intellectual Property Rights incorporated within any Deliverables, free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services for Customer’s internal business purposes. The license granted for Deliverables herunder does not permit Customer to commercialize, monetize or sell the Deliverables and does not apply to any third party components, products, or services.
(C) Notwithstanding any other provision in this Agreement, APEX may use any Deliverable or other information it obtains in the performance of the Services for any purpose, including, but not limited to, developing, providing, operating, maintaining, and improving APEX’s products and services. APEX may also use any Deliverable in connection with providing products or services to any other of its customers or business partners; provide, however, that APEX will not disclose any Confidential Information of the Customer.
- Limited Warranty; Disclaimer of Warranties.
- a) APEX represents and warrants to Customer that: (i) it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and, (ii) if applicable, there will be no obstructions (each, an “Obstruction”) in any area of concrete slab in which APEX places a “green box” prior to Customer drilling, cutting, or coring through such concrete slab; provided, however, that this limited warranty shall not apply to any Obstructions below such concrete slab.
- b) APEX shall not be liable for a breach of the warranties set forth in Section 7(a) unless: (i) Customer gives written notice of the defective Services, reasonably described, to APEX within 3 days of the time when Customer discovers or ought to have discovered that the Services were defective; (ii) such breach occurred within 60 days of APEX’s performances of the Services to which the breach relates; and (iii) Customer allows APEX, at APEX’s option and during regular business hours, to inspect Customer’s premises or any other location where the Services to which the breach relates were performed for the purpose of investigating such breach.
- c) Subject to Section 7(b), with respect to any Services subject to a claim under the warranty set forth in Section 7(a)(i), APEX shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
- d) Subject to Section 7(b), with respect to any Services subject to a claim under the warranty set forth in Section 7(a)(ii), APEX shall, in its sole discretion, either: (i) credit or refund the price of such Services at the pro rata contract rate; and/or (ii) pay any reasonable direct costs that are necessary to repair or replace any damage caused to any Obstruction as a result of Customer’s drilling, cutting, or coring through the concrete slab.
- e) THE REMEDIES SET FORTH IN SECTIONS 7(c) AND 7(d) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND APEX’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7(a).
- f) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7(a), APEX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- g) Customer acknowledges and agrees that the limited warranty provided in this Section 7 does not include any third party component, product, or services that may be utilized by APEX when performing Services for a Customer.
- Limitation of Liability.
- a) IN NO EVENT SHALL APEX BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF USE, LOSS REVENUE OR PROFIT, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOODWILL, DAMAGE TO REPUTATION, LOSS OF DATA, OR ANY OTHER SIMILAR TYPE OF DAMAGES NOT EXPRESSLY PERMITTED HEREUNDER, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES REGARDLESS OF LEGAL THEORY, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT APEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- b) IN NO EVENT SHALL APEX’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO APEX PURSUANT TO THE APPLICABLE ORDER CONFIRMATION IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Termination. In addition to any remedies that may be provided under this Agreement, APEX may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
- a) fails to pay any amount when due under this Agreement;
- b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
- c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- General Indemnification. Customer shall defend, indemnify, and hold harmless APEX, its subsidiaries, affiliates, successors, or assigns and its respective directors, officers, members, managers, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder arising out of or related to Customer’s negligence, willful misconduct, or breach of this Agreement.
- Statute of Limitations. Customer must notify APEX of any claim arising directly or indirectly under this Agreement no later than 72 hours after discovery of the existence of such claim, but in any event no later than 3 months after the Services are performed or Customer waives the right to file any claim, lawsuit, or other action, including any right to any offset of payment for the Services, arising directly or indirectly under this Agreement, including any claim, lawsuit, or other action under any applicable statute of limitations.
- Waiver. No waiver by APEX of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by APEX. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof.
- Force Majeure. APEX shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of APEX including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Revisions to these Terms. APEX reserves the right to revise these Terms at any time. In connection with each revision to these Terms, we will update the Last Modified Date. It is your responsibility to review the Terms posted on this site to review the most current version. Your use of any of the Services after a revision has been posted to these Terms shall constitute your acceptance and agreement to be bound to the terms and conditions hereof.
- Confidential Information. Except as otherwise excluded herein, in connection with the provision of the Services, the parties’ acknowledge and agree that either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 15 by the Receiving Party or any of its Representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information. Nothing set forth in this Section 15 is intended to preclude the Receiving Party from disclosing any Confidential Information that is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. If the Receiving Party is required by applicable law to disclose any Confidential Information, then the Receiving Party must promptly provide notice to the Disclosing Party of the legal requirement, unless such notice is prohibited by applicable law, and the Receiving Party shall provide its cooperation to the Disclosing Party in any effort by the Disclosing Party to seek a protective order or other injunctive relief against disclosure. If the Disclosing Party’s efforts to prevent disclosure of the Confidential Information fails, then the Receiving Party shall only disclose that Confidential Information, which on the advice of legal counsel, is required to satisfy the legal requirement. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s employees, agents and representatives (collectively, “Representatives”) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 15 caused by any of its Representatives. Upon the expiration or termination of the Agreement or at any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section 15 and to secure its enforcement.
- Miscellaneous. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of APEX. The relationship between the parties is that of independent contractors. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado. If any term or provision of this Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Underground Scanning GPR Antenna. The antenna frequencies range from 250 MHz-450 MHz is mounted in a stroller frame which rolls over the surface. The surface needs to be reasonably smooth and unobstructed in order to obtain readable scans. Obstructions such as curbs, landscaping, and vegetation will limit the feasibility of GPR. The data is displayed on a screen and marked in the field in real time. The total depth achieved can be as much as 8’ or more with this antenna but can vary widely depending on the types of materials being scanned through. Some soil types such as clay may limit maximum depths to 3’ or less. As depth increases, targets must be larger in order to be detected and non-metallic targets can be especially difficult to locate. Depths provided should always be treated as estimates as their accuracy can be affected by multiple factors. For more information, please visit: Link
- Concrete Scanning GPR Antenna. The antenna is handheld and rolls over the surface. The antenna needs a reasonably smooth, unobstructed surface for scanning and is not able to scan within 2”-4” of obstructions such as walls and metal tracks unless they are removed prior to our work. The data is displayed on a screen during the scanning and marked on the surface in real time. The total depth achieved can be as much as 18” or more with this antenna but can vary widely depending on the types of materials being scanned through and other factors such as the spacing of the reinforcing. No harmful radiation is emitted and the work can be performed at any time with people in close proximity. For more information, please visit: Link
- Electromagnetic Pipe Locator. The EM locator can passively detect the signals from live AC power or radio signals traveling along some conductive utilities. It can also be used in conjunction with a transmitter to connect directly to accessible, metallic pipes, risers, or tracer wires. A current is sent through the pipe or tracer wire at a specific frequency and the resulting signal can then be detected by the receiver. A utility’s ability to be located depends on a variety of factors including access to the utility, conductivity, grounding, interference from other utilities, and many others. Depths provided should always be treated as estimates as their accuracy can be affected by multiple factors.
- Infrared Camera. The thermal camera can detect changes in temperature as small as <0.1°C with accuracy with 2°C. This is often used for locating radiant heat tubing. The system should be heated near to or after the start of the project in order to have contrast between the temperature of the tubing and the slab.
- Traceable Rodder. The rodder has a copper wire encased in fiberglass. The line is pushed through accessible pipes before placing a current on the wire and the signal is then traced from the surface. The maximum traceable depth is 10’ depending on the soil conditions and the maximum distance is 200’. The line can be pushed through a pipe with direct access such as a sewer line at a cleanout or a storm drain catch basin. It may not be able to be pushed through deeper pipes within manholes. Electrical conduits will not be accessed by APEX. The signal cannot be located through metallic pipes.
- GPS. This handheld GPS unit offers accuracy down to 4 inches, however, the accuracy achieved will depend on the satellite environment at the time of collection and should not be considered to be survey-grade. Features can be collected as points, lines, or areas and then exported as a KML/KMZ or overlaid on a CAD drawing.
- 512 Hz Sonde. The sonde can be connected to the end of the traceable rodder and pushed through an accessible pipe. This sonde transmits a signal at a 512 Hz frequency that can pass through cast-iron pipes or non-metallic pipes and be detected at depths of up to 10’-15’ depending on the conditions. The signal can then be located from the surface using the EM pipe locator.
- Magnetometer. The magnetometer detects the magnetic field of a ferromagnetic object. Larger metallic objects can be located at depths of up to 10’ or more but total depths will depend on the size, type, shape, and orientation of objects along with the amount of interference from other objects.
- Electromagnetic Induction (EMI). An EMI instrument is another tool to locate man-made subsurface objects. The EMI is moved over the surface without coming in contact with the surface so it is not affected by the terrain. However, EMI results are affected by surface features including vehicles, reinforced concrete, and buildings and will not be used in the vicinity of above-ground obstructions. Data is displayed on a control unit and can be displayed in a color-coded contour map which can be provided by APEX for interpretation by the client.
- 3D Camera. The 3D camera is used to create non-survey grade 3D models of its surroundings. Virtual tours can be viewed online and there is functionality for customers to measure, add dimensions and tag features. Floor plans can also be exported and used to create drawings with subsurface findings added.