IMPORTANT: THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND BQE SOFTWARE, INC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE.
- "BQE" means BQE Software, Inc. and its successors and assigns.
- "Education Version" means a version of the Software, so identified, for use only by students and faculty of educational institutions.
- "Not For Resale (NFR) Version" means a version of the Software, so identified, to be used only to review and evaluate the Software.
- "Software" means only BQE Software's software program(s) and third-party software programs, in each case, supplied by BQE herewith, and corresponding documentation, associated media, printed materials and online or electronic documentation, and includes any other programs, tools, internet-based services, components and any "updates" (for example, software maintenance, service information, help content, bug fixes or maintenance releases) of the software that BQE provides or makes available to you.
- "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
- Subject to the terms and conditions of this EULA, including the payment of required fees, BQE grants you a limited, non-exclusive, non-transferable, non-sublicensable license to electronically access, install and use the Software for your own benefit. To the extent BQE makes updates available to you, you are entitled to download and install updates to the Software. This license and your use of the Software are subject to the terms of this EULA.
- You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. A single license for the Software may not be shared, installed or used concurrently on different computers.
- In the event the Software is distributed along with BQE Software's other software products as part of a suite of products, the license for the suite is licensed as a single product and none of the products in the suite, including the Software, may be separated for installation or use on more than one computer.
- You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software.
- Education Versions may not be used, or distributed to any party, for any commercial purpose.
- You agree that BQE may audit your use of the Software for compliance with the terms of this EULA at any time, upon reasonable notice.
- For BQE Software's Web-based software programs only:
- Other than as expressly set forth in this EULA, you may not (and shall not allow any third party to) copy, reproduce, republish, upload, post, transmit, resell, license, sublicense or distribute in any way the Software, or electronically transfer the Software from one computer to another or over a network.
- You may not (and shall not allow any third party to) (i) alter, merge, modify, adapt or translate the Software, or create derivative works based upon the Software (except to the extent that the Software provides for user-modifiable components) or any part thereof or separate the Software into component parts, (ii) decompile, disassemble, reverse engineer or otherwise attempt to reconstruct or discover, by any means whatsoever, any source code, algorithms or file formats or programming or interoperability interfaces of the Software or of any files contained or generated using the Software, or otherwise reduce the Software to a human-perceivable form, (iii) remove or alter any product identification, trademark, copyright, confidentiality, proprietary or other notices contained on or within the Software, or (iv) disclose to any third party any performance information or analysis (including, without limitation, benchmarks) of the Software except as otherwise expressly contemplated herein (provided that nothing contained in this EULA shall prevent you from using any of the data produced by the Software for your own business purposes).
- You may not work around any technical limitations in the Software or use any tool to enable features or functionalities that are otherwise disabled in the Software.
- You may not permit any third party to use or benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, sublicense or any other form of agreement, unless otherwise expressly provided herein.
- Unless otherwise provided herein, you may not (i) install or use, in the aggregate, more than one copy of the Trial Version of the Software, (ii) download the Trial Version of the Software under more than one username, (iii) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, or (iv) use the Trial Version of the Software for any purpose other than to determine whether to purchase a license to a commercial version or Education Version of the Software. Notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
- You may not use the Not for Resale Version of the Software for any purpose other than to review and evaluate the Software.
- You may not (and shall not allow any third party to) use the Software for any purpose or in any manner not expressly permitted in this Agreement.
- You may not perform or attempt to perform any actions that would interfere with the proper working of the Software, prevent access to or the use of the Software by BQE Software's other licensees or customers, or impose an unreasonable or disproportionately large load on BQE Software's infrastructure.
- You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations promulgated thereunder.
- You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed.
- Other than with respect to a Trial Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA and the serial numbers), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which you are upgrading. You may retain no copies of the Software. Notwithstanding the foregoing, you may not sell or transfer any Software purchased under a volume discount or any Trial Version or Not For Resale Version of the Software. If the copy of the Software is licensed as part of a suite of BQE software products, the Software shall be transferred only with and as part of the sale or transfer of the whole suite and not separately.
- You are required to pay an annual maintenance fee to be eligible for the continued use of the Software beyond the initial expiration date. Failure to pay the annual maintenance fee will result in an automatic lock on the usage of the Software and will constitute a material breach of this EULA.
- In the event that you fail to comply with this EULA, BQE may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination, subject to the further provisions of this EULA).
If this copy of the Software is an upgrade from an earlier version of the Software (the “Upgraded Software”), it is provided to you on a license exchange basis. You agree that your installation and use of the Upgraded Software constitute a voluntary termination of your earlier EULA with respect to such earlier version and your agreement to be bound by the terms of this EULA. You also agree you will not continue to use the earlier version of the Software or transfer it to another person or entity unless such transfer is made in accordance with the terms of Section 3(k) of this EULA.
Prior Same Version License
If this copy of the Software is licensed as part of a suite of BQE software products, and you have a prior license to the same version, and the suite is licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Software is provided to you on a license exchange basis. You agree that your installation and use of this copy of the Software constitute a voluntary termination of your earlier EULA with respect to such prior license and your agreement to be bound by the terms of this EULA. You also agree you will not continue to install or use such prior license of the Software or transfer it to another person or entity.
The Software is licensed not sold, and BQE and its licensors reserve all rights not expressly granted to you in this EULA. The foregoing license gives you limited license to use the Software. BQE and its licensors own all right, title and interest, including all copyright and other worldwide intellectual property rights, in and to the Software (as an independent work and as an underlying work serving as a basis for any application you may develop) and all copies of thereof. All rights not specifically granted to you in this EULA, including federal and international copyrights, are reserved by BQE and its licensors. This EULA does not grant you any rights to any trademarks or service marks of BQE or its licensors. The Software is protected by copyright, trade secret and other intellectual property laws.
All fees and charges for the Software and any related services and content exclude all applicable sales, use and other taxes, and you will be responsible for payment of all such taxes (other than taxes based on BQE Software's income), and any related penalties and interest, arising from the payment of such fees or the delivery or license of the Software to you. You agree to make all payments of amounts due for the Software and any related services and content to BQE free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of any fees and charges to BQE are your sole responsibility.
If you send, transmit or communicate any comments, questions, suggestions, information or materials to BQE, whether by letter, email, telephone, online contact form or otherwise (collectively, the "Suggestions"), recommending changes or improvements to the Software, including, without limitation, new designs, features, functionality, products and/or services, all the Suggestions are, and will be treated as, non-confidential and non-proprietary. You hereby assign to BQE all right, title and interest in and to: (a) the Suggestions, which BQE shall be free to use, without any attribution or compensation to you or any third party, and (b) any ideas, know-how, concepts, techniques or other intellectual property and proprietary rights contained in the Suggestions, whether or not patentable or fixed in a tangible medium, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Suggestions. You understand and agree that BQE shall not obligated to use any Suggestions, and you have no right to compel such use and no right to compensation for any such use.
IF YOU INTEND TO USE THE SOFTWARE AND ANY RELATED SERVICES AND CONTENT IN CONJUNCTION WITH THE MEDICAL OR HEALTH INFORMATION OF INDIVIDUALS, YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE AND ANY RELATED SERVICES AND CONTENT ARE NOT "HIPAA-READY" OR "HIPAA-COMPLIANT" AND BQE WILL NOT ASSIST WITH OR ENSURE COMPLIANCE WITH HIPAA, AND THAT YOU ARE SOLELY RESPONSIBLE FOR USING THE SOFTWARE AND ANY RELATED SERVICES AND CONTENT IN A MANNER CONSISTENT WITH ALL APPLICABLE FEDERAL AND STATE PRIVACY LAWS RELATING TO MEDICAL OR HEALTH INFORMATION.
Limited Warranty and Disclaimer
- EXCEPT WITH RESPECT TO THE TRIAL VERSION AND NOT FOR RESALE VERSION OF THE SOFTWARE, BQE WARRANTS THAT, FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF PURCHASE (AS EVIDENCED BY A COPY OF YOUR RECEIPT): (1) WHEN USED WITH A RECOMMENDED HARDWARE CONFIGURATION, THE SOFTWARE WILL PERFORM IN SUBSTANTIAL CONFORMANCE WITH THE DOCUMENTATION SUPPLIED WITH THE SOFTWARE, AND (2) IF APPLICABLE, THE PHYSICAL MEDIA ON WHICH THE SOFTWARE IS FURNISHED WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE.
- IF THE SOFTWARE DOES NOT SATISFY THE FOREGOING WARRANTY, YOU MUST RETURN THE SOFTWARE TO THE PLACE YOU ACQUIRED IT, WITH A COPY OF YOUR RECEIPT AND A WRITTEN DESCRIPTION OF THE PROBLEM. PROVIDED THAT ANY NON-COMPLIANCE WITH THE WARRANTY IS REPORTED IN WRITING TO BQE NO MORE THAN THIRTY (30) DAYS FOLLOWING THE DATE OF YOUR PURCHASE, BQE SOFTWARE'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS EULA SHALL BE, AT BQE 'S OPTION, TO (1) SUPPLY YOU WITH A REPLACEMENT COPY OF THE SOFTWARE THAT SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION SUPPLIED WITH THE SOFTWARE, (2) PROVIDE A REPLACEMENT FOR DEFECTIVE MEDIA, IF APPLICABLE, OR (3) REFUND TO YOU YOUR PURCHASE PRICE FOR THE SOFTWARE. THE THIRTY (30)-DAY PERIOD TO REPORT ANY PROBLEMS WITH THE SOFTWARE WILL NOT BE EXTENDED FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, FAILURE TO TIMELY INSTALL, INSPECT, REVIEW AND REPORT THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR PURCHASE OF THE SOFTWARE. BQE SHALL HAVE NO RESPONSIBILITY OR LIABILITY IF THE SOFTWARE (OR MEDIA, IF APPLICABLE) HAS BEEN ALTERED IN ANY WAY OR DAMAGED BY MISUSE, ACCIDENT, ABUSE, MODIFICATION OR MISAPPLICATION, OR IF THE FAILURE ARISES OUT OF USE OF THE SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION. ANY SUCH ALTERATION, MISUSE, ACCIDENT, ABUSE, MODIFICATION OR MISAPPLICATION OF THE SOFTWARE OR MEDIA OR FAILURE TO USE THE SOFTWARE WITH A RECOMMENDED HARDWARE CONFIGURATION WILL VOID THE WARRANTY ABOVE.
- BQE PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE TRIAL VERSION AND NOT FOR RESALE VERSION OF THE SOFTWARE. THE TRIAL VERSION AND NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED ON AN "AS-IS" AND “AS-AVAILABLE” BASIS.
- EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN THE TRIAL VERSION AND NOT FOR RESALE VERSION, BQE AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, A COURSE OF DEALING, USAGE OR TRADE PRACTICE, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BQE AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE IS SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, IDENTITY THEFT, THREAT OF HACKERS, OTHER PROGRAM LIMITATIONS, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL AND LIFE SUPPORT OR WEAPONS SYSTEMS. BQE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
- IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF PURCHASE.
- NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BQE, ITS DEALERS, DISTRIBUTORS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
- FOR U.S. CUSTOMERS ONLY: SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
- THE SOFTWARE AND ANY RELATED SERVICES AND CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE EXPRESS UNDERSTANDING THAT BQE AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE OR SERVICES. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. BQE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY ANY STATUTORY, REGULATORY OR OTHER LEGAL OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS, INCLUDING BUT NOT LIMITED TO, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002 OR OTHER FEDERAL OR STATE LAWS, RULES OR REGULATIONS.
Limitation of Liability
- NEITHER BQE NOR ITS SUPPLIERS (AS SUCH TERM IS DEFINED IN SECTION 9(c)) SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS OR BUSINESS INTERRUPTION), ARISING OUT OF OR RELATING TO THIS EULA OR THE INSTALLATION, USE, OPERATION OR SUPPORT OF THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BQE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- UNDER NO CIRCUMSTANCES SHALL BQE SOFTWARE'S AGGREGATE LIABILITY FOR LOSSES OR DAMAGES FOR ANY CAUSE WHATSOEVER, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EXCEED $200 OR THE ACTUAL PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE GIVING RISE TO SUCH LOSSES OR DAMAGES, WHICHEVER IS GREATER.?
- THE REMEDIES SPECIFIED IN SECTION 10 AND THIS SECTION 11 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY LOSSES OR DAMAGES YOU OR ANY OTHER PERSON OR ENTITY MAY INCUR ARISING OUT OF OR RELATING TO THIS EULA OR THE INSTALLATION, USE, OPERATION OR SUPPORT OF THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT.
- FOR U.S. CUSTOMERS ONLY: SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
Basis of Bargain
The “Limited Warranty and Disclaimer” “and “Limitation of Liability” provisions set forth above are fundamental elements of the basis of the agreement between BQE and you with respect to the Software and the subject matter hereof. BQE would not be able to provide the Software on an economic basis without such limitations. Such “Limited Warranty and Disclaimer” and “Limitation of Liability” provisions inure to the benefit of BQE and its Suppliers.
Consents to Electronic Communications and to Do Business Electronically
- BQE may be required by law to send Communications (as such term is defined below) to you that may pertain to the Software, the use of information you may submit to BQE and the services you choose. Additionally, certain Third-Party Services (as such term is defined in Section 15) you choose may require Communications with the third parties who administer these programs. You agree that BQE, on behalf of itself and others who administer such services (as applicable), may send Communications to you by email and/or may make Communications available to you by posting them at one or more of BQE Software's sponsored websites. You consent to receive these Communications electronically. The term "Communications" means any notice, record, agreement or other type of information that is made available to you or received from you in connection with the Software, BQE Software's products and services and Third-Party Services.
- The decision whether to do business electronically is yours, and you should consider whether you have the required hardware and software capabilities to do so, including, but not limited to, having a recommended hardware configuration for use with the Software. Your consent to do business electronically and our agreement to do so covers all transactions you conduct through the Software for as long as you remain a subscriber to the Software.
U.S. Government Restricted Rights Legend
The Software is a "commercial item," consisting of "commercial computer software" and "commercial computer software documentation," as such terms are defined and used at 48 C.F.R. 2.101 (OCT 1995) and 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 4 (JUNE 1995), all U.S. Government End Users acquire the Software with only those rights set forth in this EULA. Manufacturer: BQE Software, Inc., 3825 Del Amo Blvd., Torrance, CA 90503.
Consumer End Users Only
For Non-U.S. Customers: The limitations or exclusions of warranties, remedies or liability contained in this EULA do not affect or prejudice the statutory rights of a consumer (i.e., a person acquiring goods other than in the course of a business) and shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
Third-Party Software and Services
The Software may contain, or you may be made aware of, software, services, products, offers and promotions provided by third parties, and not by BQE (collectively, "Third-Party Services"), that require notices and/or additional terms and conditions. Required third-party software notices and/or additional terms and conditions are located at www.bqe.com and are made a part of and incorporated in this EULA by reference. If you decide to use any Third-Party Services that are not required for use of the Software, you are responsible for reviewing and understanding the terms and conditions governing such Third-Party Services. You agree that the third party, and not BQE, is responsible for the performance of the Third-Party Services and that BQE shall have no liability for any such Third-Party Services.?
BQE shall have the right, in its sole discretion and subject to Section 21(j), to add to, change or modify the terms of this EULA at any time and to change, delete, discontinue or impose conditions on any feature or aspect of the Software, including, but not limited to, any Internet-based services, pricing, technical support options and other product-related policies, upon notice by any means BQE determines in its discretion to be reasonable, including posting information concerning any such change, addition, modification, deletion, discontinuance or conditions in the Software or on any BQE-sponsored website. Any use of the Software by you after BQE Software's publication of any such changes shall constitute your acceptance of this EULA as modified. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to this EULA would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid this EULA being deemed illusory or unenforceable.
Your rights under this EULA may be terminated or suspended by BQE immediately and without notice if (a) you fail to make any payment due for the Software (or your subscription for the Software) and any related services or content, (b) you fail to comply with any term or condition of this EULA, or (c) you no longer consent to receive electronic communications. Additionally, BQE reserves the right (but has no obligation) to delete all your information and account data stored on BQE Software's servers if your subscription has been terminated or if you have not renewed a subscription for the Software. Upon termination or expiration of your subscription or this EULA for any reason, all of your rights under this EULA shall terminate and you must immediately cease using the Software and delete or destroy all copies of the Software and all documents, notes and other materials related thereto in your possession. Any termination or expiration of this EULA shall not affect BQE Software's rights hereunder and shall not relieve you of your obligations to make all accrued payments through the date of termination or relieve you from any liability on account of a breach of this EULA arising prior to or following the effective date of termination or expiration. Further, you agree that upon termination or expiration of the EULA, BQE shall not be liable to you or any third party for any termination of your access to the Software or deletion of your information and account data.
You agree to indemnify and hold BQE and its Suppliers harmless, and at BQE Software's option defend BQE and its Suppliers, from and against any and all third-party claims, losses, liabilities, damages, lawsuits, proceedings, costs and expenses (including without limitation attorneys' fees and costs) (collectively, “Claims”) arising out of or relating to your and/or your authorized subscribers' or users' (a) use of the Software and any related services and content or (b) breach or violation of this EULA, state or federal laws, rules or regulations, or any third party's rights, including but not limited to, infringement of any copyright, violation of any proprietary rights or invasion of any privacy rights. If you are obligated to indemnify BQE and/or any of its Suppliers, BQE may, in its sole and absolute discretion, control the defense and disposition (including its possible settlement) of any Claim at your sole cost and expense. Without limitation of the foregoing, you will not settle, compromise or in any other manner dispose of any Claim without the written consent of BQE. Your obligations under this Section will survive the termination or expiration of this EULA.
Mediation and Binding Arbitration
BQE will make every reasonable effort to informally resolve any complaints, disputes or disagreements that you may have with us. If those efforts fail, you agree that any complaint, dispute or disagreement you may have against BQE, and any claim that BQE may have against you, arising out of, relating to, or connected in any way with this EULA, any purchases or other transactions or relationships with BQE, or your use of or interaction with the Software and any related services or content (collectively, “BQE Transactions or Relationships”) will be settled, first, by mediation to take place within thirty (30) days of the written notice of such dispute and, second, if the parties are unable to settle such dispute by mediation in such thirty (30)-day period, then by binding arbitration ("Arbitration") administered by JAMS or its successor ("JAMS") and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the "Applicable Rules"). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the "AAA") instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the "Applicable Rules" in such circumstances). You further agree to the following:
- The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and BQE (the "Arbitrator").
- The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of this EULA and/or these arbitration provisions in this Section 21, including but not limited to any claim that all or any part of this EULA is void or voidable.
- The Arbitration shall be conducted in the English language and held either: (i) in Los Angeles County, California, U.S.A.; or (ii) at such other location as may be mutually agreed upon by you and BQE; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
- The Arbitrator (i) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (ii) shall honor claims of privilege recognized at law; and (iii) shall have authority to award any form of legal or equitable relief.
- The Arbitration can resolve only your and/or BQE Software's individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated.
- The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it (an "Award"). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The prevailing party shall be entitled to recover its reasonable attorneys' fees and its share of the costs of the arbitration, as the Arbitrator determines. In no event will the Arbitrator have the authority to award punitive damages or any other damages expressly limited by this EULA.
- Notwithstanding anything to the contrary contained in this Section 21, a party may seek equitable relief by court action before or after instituting arbitration, including, without limitation, seeking and obtaining temporary restraining orders, injunctions or other provisional, ancillary or equitable remedies, and the institution and maintenance of any such action shall not constitute a waiver of the right to arbitrate any controversy or claim.
- Notwithstanding the foregoing, you and BQE adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure with respect to any final Award in the Arbitration.
- YOU ACKNOWLEDGE AND AGREE THAT YOU AND BQE SOFTWARE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPOSED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.
- BQE may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after BQE has given notice of such modifications and only on a prospective basis for claims arising from BQE Transactions and Relationships occurring after the effective date of such notification.
- This EULA shall be governed by the internal laws of the State of California as applied to agreements entered into and to be performed entirely within the State of California, without giving effect to its conflict of laws principles or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles. Subject to the arbitration provisions above, any action or proceeding arising out of or relating to this EULA or any other BQE Transactions or Relationships must be brought exclusively in the federal or state courts located in Los Angeles County, California, USA, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise, and you agree to waive any bond, surety or other security that might be required of any other party with respect thereto. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
- This EULA contains and represents the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements or understandings, whether oral or written, between the parties with respect to its subject matter. No dealers, suppliers, distributors, agents, representatives or employees of BQE are authorized to amend or modify this EULA or to make any representations, commitments, guarantees, or warranties binding on BQE, unless set forth in a writing signed by an officer of BQE. To the extent there are varying, contradicting or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed under this EULA, the provisions of this EULA shall govern, and such varying, contradicting or additional terms shall be of no effect. No failure or delay of BQE to exercise any right, power or privilege under this EULA or upon any breach of this EULA will operate as a waiver of thereof or any further rights, power or privileges under this EULA or of such breach. No waiver of any of the provisions of this EULA shall constitute a waiver of any other provision hereof, nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.
- If any provision of this EULA shall be held by a court of competent jurisdiction to be unenforceable or invalid under applicable law or contrary to law, that provision will be modified to accomplish the purpose of such provision to the maximum extent permissible under the law and the remaining provisions of this EULA shall remain in full force and effect.
- Unless otherwise required by law, any claim or cause of action (including any arbitration) arising out of or relating to this EULA or any other BQE Transactions or Relationships must be commenced within one (1) year after such claim or cause of action arose.
- If any arbitration or court proceeding is brought in connection with this EULA, or any document, agreement, instrument or certificate delivered under or pursuant to this EULA, the prevailing party in such proceeding shall be entitled to recover from the other party all costs, expenses and reasonable attorneys' fees incidental to any such proceeding.
- You agree that BQE shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond BQE Software's reasonable control, including but not limited to acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages of transportation, facilities, fuel, energy, labor or materials, interruptions of power or telecommunications services or failure of equipment or technology (such as computer breakdown or failure not within BQE Software's reasonable control.
- Section headings are included in this EULA for convenience only and shall not be considered in interpreting this EULA.
- This EULA is binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You shall not assign your rights or obligations hereunder without BQE Software's prior written consent or as otherwise expressly permitted in this EULA.
- All questions concerning this EULA shall be directed to: BQE Software, Inc., 3825 Del Amo Blvd., Torrance, CA 90503, Attention: Legal Department.
- BQE®, BillQuick®, Bill Quick®, ArchiOffice®, EngineerOffice®, Power Up Your Business®, Power Up Your Practice®, CORE Powered by BQE™, Powered by BQE™, BQE CORE Payroll™, BQE CORE HR™, BQE CORE Scheduling™, BQE CORE Accounting™, BQE CORE CRM™, BQE Smart Transactions™, BQE Smart Billing™, Your Business Operating System™ and other trademarks contained in the Software are the registered and unregistered trademarks of BQE Software, Inc. in the United States and/or other countries. Third-party trademarks, trade names, product names and logos are the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logos, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use BQE Software's or its licensors' names or any of their respective trademarks.
Last revised: June 14, 2017