APG Membership Terms of Service

Last Modified: 25 March 2020

These APG Membership Terms and Conditions (the “Membership Terms” or “Agreement”) set forth the terms and conditions governing the relationship between the Association of Professional Genealogists (“APG”) and the member identified in the applicable membership application or order form (“Member” or “you”) relating to services provided by APG (including all documents, data, and other materials available as part of the services, including through the APG Platform) relating to Member’s membership in APG (collectively, the “Membership Services”). APG and Member are individually referred to as a “Party” and collectively as the “Parties”.

  1. Membership Services.

    1. Scope of Services.

      Subject to the terms and conditions of this Agreement, APG shall provide the Membership Services as set forth on the membership benefits page of the APG Platform, currently located at https://www.apgen.org/cpages/membership.
    2. Platform Terms of Use and Privacy Policy.

      By entering into this Agreement, Member agrees to the APG Platform Terms of Use located at https://www.apgen.org/cpages/terms-of-service (“Terms of Use”), and the APG Privacy Policy located at https://www.apgen.org/cpages/privacy-policy (“Privacy Policy”), which are incorporated herein by reference. Capitalized Terms not defined in this Agreement shall have the meaning set forth in the Terms of Use and Privacy Policy. To the extent the Terms of Use or Privacy Policy are inconsistent with the Membership Terms, the Membership Terms shall control. Member shall make sure that all users of the Membership Services, including all users of the APG Platform, agree to the Terms of Use and Privacy Policy.
    3. Changes to Services.

      APG reserves the right, in its sole discretion, to make any changes to the Membership Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of APG’s Membership Services to its Members, the competitive strength of or market for APG’s Membership Services or the Membership Services’ cost efficiency or performance; or (b) to comply with applicable law.
    4. Savings Clause.

      APG’s failure to perform, or delay in performing, its responsibilities under this Agreement shall be excused if and to the extent that APG demonstrates that such non-performance or delay is caused by: (i) the failure of Member or Member personnel to perform their obligations under this Agreement; (ii) any act performed or omitted by APG or APG personnel at the request of Member; (iii) any act performed by Member or Member personnel to the extent that such act was not otherwise agreed by the Parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of APG systems.
    5. Third Party Services.

      APG may make certain third-party products or services available to Member, or may make its Membership Services available to be used by Member within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services”), for which APG makes no representations, warranties, or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement. Member’s exclusive remedy with regard to Third-Party Services shall be against the Third-Party.
  2. Access and Use, Member Restrictions

    1. Access and Use.

      Subject to and conditioned on Member’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, APG hereby grants Member a non-exclusive, non-transferable right to access and use the Membership Services during the term of this Agreement, including all documents available through the Membership Services, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. “Authorized User” means Member’s employees, consultants, contractors, and agents (i) who are authorized by Member to access and use the Membership Services under the rights granted to Member pursuant to this Agreement and (ii) for whom access to the Membership Services has been purchased.
    2. Reservation of Rights.

      Except as otherwise provided, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Membership Services, the APG Platform (including any contents, documents, or other materials available through the APG Platform), or third-party materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Membership Services, the APG Platform, and third-party materials are and will remain with APG and the respective rights holders in the third-party materials.
    3. Authorization Limitations and Restrictions.

      Member shall not, and shall not permit any other person to, access or use the Membership Services except as expressly permitted by this Agreement and, in the case of Third-Party Services and Third-Party materials, the applicable third-party services agreement, license agreement or Third-Party Terms. For purposes of clarity and without limiting the generality of the foregoing, Member shall not, except as this Agreement expressly permits:
      1. copy, modify, or create derivative works or improvements of the Membership Services;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Membership Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Membership Services, in whole or in part;
      4. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
      5. input, upload, transmit, or otherwise provide to or through the Services or APG Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
      6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Membership Services, the APG Platform, or APG ’s provision of services to any third party, in whole or in part;
      7. remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Membership Services, including any copy thereof;
      8. access or use the Membership Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
      9. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
      10. send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive, or tortious material, including material harmful to children or violative of third-party privacy rights;
      11. send or store material containing software viruses, worms, trojan horses, or other harmful computer code, files, scripts, agents, or programs;
      12. attempt to gain unauthorized access to the Membership Services, the APG Platform, or related systems or networks;
      13. use the Membership Services in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
      14. use the Membership Services for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
      15. engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Membership Services, the APG Platform, or which, as determined by APG, may harm APG or users of the APG Platform or Membership Services or expose them to liability;
      16. use any device, software, or routine that interferes with the proper working of the Services or the APG Platform;
      17. access or use the Membership Services for purposes of competitive analysis of the Membership Services, the development, provision or use of a competing services or products, or any other purpose that is to APG’s detriment or commercial disadvantage; or
      18. otherwise access or use the Membership Services beyond the scope of the authorization granted under this Agreement.
    4. Code of Ethics.

      At all times while a Member, Member shall comply with, and be subject to, APG’s then current Code of Ethics and Professional Practices, currently located at https://www.apgen.org/cpages/code-of-ethics (the “Code of Ethics”).
    5. Groups Code of Conduct.

      Members have access to APG forums and groups (the “Groups”). Members who use the Groups agree to follow the Member Group Guidelines found at https://www.apgen.org/cpages/group-guidelines in addition to the Content Standards referenced in the Platform Terms of Use.
    6. Continuing Education.

      All Members agree that, as a condition of their membership, they must complete twelve (12) hours of continuing education in genealogical or business topics each year, as per the discussion and requirements set forth on the APG Platform, currently located at https://www.apgen.org/cpages/continuing-education.
    7. Additional Member Obligations.

      In addition to any other provision of this Agreement, Member shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Member Materials (as defined in Section 5.2), including all Member Data (as defined in Section 3.1); (ii) timely supply APG with all necessary information and resources including, without limitation, all files, materials, data necessary for the Membership Services, and access to information, personnel, systems, and facilities, reasonably requested by APG (and APG shall be entitled to rely upon any instructions, guidelines, or information provided to APG by Member); (iii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Membership Services; (iv) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Membership Services; (v) obtain and maintain all computer hardware, software, and communications equipment needed to access the Membership Services; (vi) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Member systems, and sole responsibility for all access to and use of the Membership Services.
    8. Suspension or Termination of Services.

      APG may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Member’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Membership Services, without incurring any resulting obligation or liability, if: (a) APG receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires APG to do so; or (b) APG believes, in its discretion, that: (i) Member or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Membership Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of APG; (ii) Member or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Membership Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of APG’s other rights or remedies, whether at law, in equity, or under this Agreement.
  3. Member Data and Security

    1. Member Control and Responsibility.

      Member has and will retain sole responsibility for: (a) all Member Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Member or any Authorized User in connection with the Membership Services; (c) Member’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Member or through the use of third-party services (“Member Systems”); (d) the security and use of Member’s and its Authorized Users’ access credentials; and (e) all access to and use of the Membership Services directly or indirectly by or through the Member Systems or its or its Authorized Users’ access credentials, with or without Member’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Member Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Member or an Authorized User by or through the Membership Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
    2. Access and Security.

      Member shall employ all physical, administrative, and technical controls; screening and security procedures; and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Membership Services; and (b) control the content and use of Member Data, including the uploading or other provision of Member Data for processing by the Membership Services.
  4. Fees; Payment Terms

    1. Fees.

      Member shall pay APG the standard fees and expenses for the type of Membership Services Member purchased from APG (“Fees”). The current Fee structure is set forth on at the APG Platform at https://www.apgen.org/join. APG reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Term or then-current renewal Term of Membership Services, upon thirty (30) days prior notice to Member. Unless otherwise provided, all Fees are non-refundable.
    2. Taxes.

      All Fees and other amounts payable by Member under this Agreement are exclusive of taxes and similar assessments. Member is 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 or regulatory authority on any amounts payable by Member hereunder, other than any taxes imposed on APG’s income.
    3. Payment.

      Member shall pay the Fees as set forth in the applicable Membership Application. Unless otherwise indicated on the Membership Application or other order form, all Fees will be due and payable prior to commencement of the Membership Services, and all recurring Fees prior to the beginning of each recurring period of the Membership Services term. Payment terms shall be strictly enforced, and late payments shall be assessed monthly interest at the lesser of 1.5% and the maximum rate permitted by applicable law, plus all expenses of collection. If Member believes that APG has billed Member incorrectly, Member must contact APG no later than sixty (60) days after receipt of the applicable invoice or billing, in order to receive an adjustment or credit. Inquiries should be directed to APG’s Executive Director.
    4. Late Payment.

      Should Member fail to make timely payments pursuant to the Agreement, APG may suspend further performance of any or all Membership Services. If Member fails to pay any due and payable amounts within 10 calendar days after receipt of APG’s written notice that such amounts are past due, Member shall be deemed to be in material breach of this Agreement.
  5. Intellectual Property Rights

    1. Services and APG Materials/Member-Specific Content.

      All right, title, and interest in and to the APG Materials, including all Intellectual Property Rights therein, are and will remain with APG and, with respect to third-party materials included as part of Third-Party Services, the applicable Third-Party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the third-party materials. Member has no right, license, or authorization with respect to any of the APG Materials except as expressly set forth in this Agreement. All other rights in and to the APG Materials are expressly reserved by APG. “APG Materials” means the Membership Services, the APG Platform, specifications, documentation, publications, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Membership Services or otherwise comprise or relate to the Services, including all data collected by the APG Platform and Membership Services. Notwithstanding the above, APG Materials shall not include any text, images, graphic designs, audio, video, or other proprietary content provided by Member specific to the identification of Member (“Member-Specific Content”). To the extent APG obtains any rights to the Member-Specific Content, APG hereby assigns to Member all right, title, and interest in and to the Member-Specific Content. To the extent Member obtains any rights to the APG Materials, Member hereby assigns to APG all right, title, and interest in and to APG Materials. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    2. Use of APG Materials.

      APG does authorize Members to view, copy, download, and print APG documents and other APG materials that are available on the APG Platform subject to the following conditions: (i) the APG Materials may be used solely for personal, noncommercial, internal use, and informational purposes, and not for further reproduction, publication, or distribution; (ii) the APG Materials may not be modified; (iii) the APG copyright notice may not be removed, and otherwise the following copyright notice must appear in each document: "Copyright © 20xx Association of Professional Genealogists. All rights reserved."; (iv) copyright, trademark, logo, and other proprietary notices may not be removed; (v) permission to reprint articles from APGQ (APG Quarterly) must be obtained in writing from the APGQ editor and APGQ must be acknowledged in any reprint.
    3. Use of APG Logo/Post-Nominal.

      The APG Member Logo is available in both web and high-resolution format to APG members. The APG Member Logo must be used in an unaltered state. No other APG logo may be used by members. This includes the national APG logo.

      Companies that employ or contract with both APG members and non-members may not use the APG member logo on their company publications, advertising, or correspondence, including their website, unless it is directly associated with the individuals who are members of APG. The accompanying text must state which individual is the member.

      If all case managers, assistant case managers, researchers, research assistants, employees, contractors (excluding record agents who work only on an occasional contract basis), and other individuals directly involved in conducting research for clients are also members of APG, then the member logo may be used on company publications, including the website, with the accompanying text such as "All researchers at [Name of Company] are proud members of the Association of Professional Genealogists."

      The APG member logo may not be used to imply that all employees, owners, or partners in a business are members of APG if this is not the case.

      For clarification purposes, as APG is a membership organization and not a certifying body, except as set forth above, the APG logo may not be used for any purposes, including personal or commercial purposes, without the prior written consent and authorization of APG. Moreover, Members may not know use the letters “APG” or other APG Intellectual Property as a post-nominal.

    4. Member Intellectual Property License.

      Member grants to APG a limited, non-exclusive, royalty-free right and license to use the Member Materials as necessary to fulfill APG’s obligations under this Agreement for the purpose of providing the Membership Services. “Member Materials” means all content and all other information in any form or media, including but not limited to Member Data and all other documents, data, know-how, ideas, specifications, software code, and other materials, provided to APG or through the APG Platform by or on behalf of Member or an Authorized User, whether or not the same: (a) are owned by Member, a third party, or in the public domain; or (b) qualify for or are protected by any intellectual property rights, including all trademarks, trade names, service marks, trade dress, designs, artwork, and logos of Member associated with the Services and all Member-Specific Content. Member further grants to APG, on a perpetual basis, a right and license to use aggregated and de-identified Member Data for the purposes of improving the Membership Services.
    5. Feedback.

      If Member or any Authorized User transmits or provides any communications or materials to APG by mail, email, telephone, or otherwise, suggesting or recommending changes to the Membership Services or the APG Platform (“Feedback”), APG is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Member hereby assigns to APG on Member’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and APG is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although APG is not required to use any Feedback.
  6. Publicity.

    Member agrees that APG may use Member’s business name, website URL, and logo on the APG Platform and in its marketing materials, identifying Member as a current or former Member of APG.
  7. Confidentiality.

    1. Confidential Information.

      From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) 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; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. Member acknowledges that APG does not wish to receive any Proprietary Information from Member that is not necessary for APG to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, APG may reasonably presume that any unrelated information received from Member is not Confidential Information.
    2. Non-Disclosure/Non-Use.

      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 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 this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. Notwithstanding the above, APG may use for development, diagnostic, and corrective purposes any data and information it collects relating to the Membership Services. Each Party’s rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of three (3) years from the date of such expiration or termination, even after the return or destruction of Confidential Information by the Recipient. Notwithstanding the above, the survival period for Confidential Information that qualifies as trade secrets will last as long as the information qualifies as a trade secret under applicable federal, state or local law.
  8. Term and Termination.

    1. Term.

      Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable Membership Application or order. Unless Member provides written notice prior to the end of the initial or then current renewal term of the Agreement, the Agreement will automatically renew at APG’s then current Fee structure.
    2. Termination.

      In addition to any other express termination right set forth elsewhere in this Agreement:
      1. either Party may terminate this Agreement, effective on written notice to the other Party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days (ten (10) days for any failure to pay amounts due) after the non-breaching party provides the breaching party with written notice of such breach; and
      2. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Surviving Terms.

      Any provision or other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
  9. Representations and Warranties.

    1. Mutual Representations and Warranties.

      Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Additional Member Representations, Warranties and Covenants.

      Member represents, warrants and covenants to APG that the Member Materials (including Member Data) is accurate, and that Member owns or otherwise has and will have the necessary rights and consents in and relating to the Member Materials so that, as received by APG and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Member and the provider of Third-Party Services.
    3. DISCLAIMER OF WARRANTIES.

      EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, ALL MEMBERSHIP SERVICES AND APG MATERIALS ARE PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND APG DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MEMBERSHIP SERVICES OR APG MATERIALS. APG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, APG MAKES NO WARRANTY OF ANY KIND THAT THE MEMBERSHIP SERVICES OR APG MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET MEMBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SERVICES AND third-party MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN MEMBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND MATERIALS.
    4. Mention of Products or Services.

      Mention of any specific products, services, or service providers in an any APG Materials, including APG publications, whether in paid advertising, critical reviews, references in articles, news items, or otherwise, is not and shall not be considered as APG’s endorsement or promotion of the products, services, or providers.
  10. Member Indemnification.

    Member shall indemnify, defend, and hold harmless APG and its officers, directors, employees, agents, stockholders, successors, and assigns (each, a “APG Indemnitee”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) incurred by APG arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) incurred by such APG Indemnitee in connection with any Action by a third party that arises out of or relates to any: (a) Member Materials, including any processing of Member Materials by or on behalf of APG in accordance with this Agreement; (b) use of any Third-Party Services or Third-Party Materials, (c) allegation of facts that, if true, would constitute Member’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Member, any Authorized User, or any third party on behalf of Member or any Authorized User, in connection with this Agreement; or (e) Member’s violation or alleged violation of applicable law.
  11. Limitations of Liability.

    1. EXCLUSION OF DAMAGES.

      IN NO EVENT WILL APG OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE MEMBERSHIP SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY.

      IN NO EVENT WILL THE AGGREGATE LIABILITY OF APG UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY MEMBER TO APG IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  12. Force Majeure.

    Neither Party shall be liable for any default or delay in the performance of any of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature, or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions, or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers, or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans, or other commercially reasonable means.
  13. Miscellaneous.

    1. Relationship of the Parties.

      The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
    2. Notices.

      Any notice to be given under this Agreement shall be in writing and delivered by hand, U.S. mail or other postal service, or electronic mail to the address listed in the Membership Application or order. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
    3. Headings.

      The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
    4. Entire Agreement.

      This Agreement, together with the Membership Application and order, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    5. Assignment.

      Neither Party may assign this Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other Party; provided, however, that, notwithstanding the foregoing, APG may assign this Agreement to (i) any affiliate or (ii) a third party by way of merger, acquisition, consolidation or sale, or transfer of all or substantially all of its assets. Any purported assignment of rights in violation of this Section is void.
    6. No Third-Party Beneficiaries.

      This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    7. Amendment and Modification; Waiver.

      Except as otherwise provided, no waiver or modification of this Agreement will be binding upon either Party unless made in writing and signed by duly authorized representatives of such Party, and no failure or delay enforcing any right will be deemed a waiver of such right.
    8. Severability.

      If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, 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. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    9. Governing Law.

      All matters relating to the membership Services, the APG Platform, and this Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction).

Attorneys’ Fees.

In the event that any arbitration or any other action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other party arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.