Customer API Use Agreement

IMPORTANT: THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU BY CLICKING THE CHECKBOX DISPLAYED HEREWITH. YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT GOVERNING THE BQE CUSTOMER API USE PROGRAM BEFORE CLICKING THE CHECKBOX LABELED "I AGREE TO THE CUSTOMER API USE AGREEMENT." BY CLICKING THE "I AGREE" CHECKBOX, YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THIS BQE CUSTOMER API USE AGREEMENT ON BEHALF OF YOUR COMPANY (OR OTHER LEGAL ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU MUST NOT CLICK THE "I AGREE" CHECKBOX AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN THE BQE CUSTOMER API USE PROGRAM.

This BQE Customer API Use Agreement (this "Agreement") is entered into as of the date ("Effective Date") that you (hereinafter referred to as "Customer") click "I Agree." This Agreement is between Customer and BQE Software, Inc., a California corporation ("BQE"), with its headquarters located at 3825 Del Amo Boulevard, Torrance, California 90503.

WHEREAS, BQE provides valued-added application services that include dashboarding, time and expense tracking, project management, billing, accounting and reporting, for such industries as architecture, engineering, accounting, legal, consulting and government contracting (the "BQE Application"). For purposes of this Agreement, the BQE Application shall include any updates, modifications, bug fixes, upgrades, enhancements and new versions of the BQE Application and also includes the Documentation related to the BQE Application; and

WHEREAS, Customer desires for BQE to make the BQE Application accessible to Customer through its access and use of BQE's API's, software development kits, app keys and access tokens, developer webpages, documentation and other related materials made available by BQE (collectively, the "Developer Platform"), and to permit Customer to use the Developer Platform to extract or add information to its BQE Core software database and/or to integrate its Customer Application with the BQE Application; and

WHEREAS, BQE desires to make the Developer Platform available to Customer, in accordance with the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and conditions contained in this Agreement, the Parties agree as follows:

  1. Certain Definitions. Except as otherwise expressly provided herein, the following terms in this Agreement shall have the following meanings:
    1. "Customer Application" means an application, product, service or internal firm project or solution(s) which is developed, owned or licensed by Customer, and which is operated by Customer.
    2. "Documentation" means all instructions and other similar material made available by a Party, whether on its website or otherwise, to describe the functionality or assist end-users in the use of such Party’s applications, products and services.
    3. "Integrated Customer Application" means a Customer Application that accesses, utilize or interacts with the BQE Application through use of the Developer Platform.
    4. "Party" or "Parties" means BQE and/or Customer.
    5. "Person" means an individual, a proprietorship, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or any other entity or organization, including a government, a political subdivision or an agency or instrumentality thereof.
    6. "User Data" means any information of Customer and/or its users that is transmitted through any Integrated Customer Application and/or the BQE Application, including, but not limited to, financial statements, reports, cost and expense data, management techniques, trade secrets, know-how, designs, plans, production processes, product samples, specifications, customer data and employee information.
  2. Customer License and Reservations of Rights.
    1. License to Use Developer Platform. Subject to the terms and conditions of this Agreement, BQE hereby grants to Customer the worldwide, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Developer Platform solely to permit Customer to extract or add information to its BQE Core software database and/or to integrate its Customer Application with the BQE Application, in each case solely for Customer’s use in connection with the BQE Application. For avoidance of doubt, this shall categorically exclude any access to and/or use of any of BQE’s source code, including, but not limited to, the BQE Application source code. In addition to any other restrictions set forth in this Agreement, the rights granted to Customer in this Section 2.1 and in Section 2.2 are provided on the following conditions: (a) Customer shall have separately executed a BQE license agreement for use of the BQE Application and must be an active paying customer of BQE at all times during the term of this Agreement; (b) Customer may use the Developer Platform and any Integrated Customer Application solely for its internal business use and shall not permit service bureau use, outsourcing, renting or time-sharing of the BQE Application or any Integrated Customer Application; (c) Customer may not sell or repackage any rights to use (or otherwise permit any other Person to use) all or any portion of any Integrated Customer Application or the Developer Platform; (d) Customer may not use the Developer Platform to develop or implement any feature or functionality that substantially replicates or replaces any paid feature or functionality of the BQE Application or of any other products or services offered by BQE; and (e) any Integrated Customer Application must be approved by BQE as provided in Section 3.4.
    2. License for Documentation. Subject to the terms and conditions set forth in this Agreement, BQE hereby grants to Customer a worldwide, non-exclusive, non-assignable and non-transferable license to use BQE's Documentation solely to permit Customer to extract or add information to its BQE Core software database and/or to integrate its Customer Application with the BQE Application. Customer shall not reprint, distribute or embed this content in any form whatsoever without the prior written consent of BQE.
    3. Limitations. The Parties acknowledge that any use of the Developer Platform and BQE Application is prohibited, except as expressly permitted by this Agreement or other written agreement between the Parties. Except as otherwise expressly permitted under this Agreement, Customer shall not, and Customer shall not authorize its customers or any other Person to, copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any BQE software or any part of the BQE Application or Developer Platform, or otherwise attempt to discover any source code, modify the BQE Application or Developer Platform or use unauthorized modified versions of the BQE Application or Developer Platform, including, without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the BQE Application, or modify, adapt, alter, translate, create or have created derivative works of BQE's Documentation.
    4. BQE's Reservation of Rights. Except as provided in this Agreement, the licenses granted in Sections 2.1 and 2.2 to Customer does not convey any rights in the BQE Application, Developer Platform or BQE's Documentation, express or implied, or ownership in the BQE Application, Developer Platform or BQE's Documentation or any intellectual property rights thereto. All rights not expressly granted to Customer are expressly reserved by BQE. BQE further reserves the right in its sole discretion to limit the time, manner and amount of User Data transmitted to the BQE Application by Customer or any end-user.
    5. Intellectual Property Ownership.
      1. Customer Rights. Notwithstanding anything to the contrary in this Agreement, BQE acknowledges and agrees that, as between BQE and Customer, Customer is the exclusive owner of all right, title and interest in and to all patent rights, copyrights, trademarks, know-how, trade secrets, inventions, ideas, systems, programs, software, source code, modules, applications, documentation, including written or electronic reports, analysis or other working papers, and other work product developed, prepared or designed in connection with any Integrated Customer Application and all other intellectual property rights inherent in and appurtenant to the Integrated Customer Application, subject to BQE's rights in and to any underlying BQE Materials (as defined below). For avoidance of doubt, Customer shall own any application or tool developed by Customer to connect with the BQE Application. During the term of this Agreement, Customer hereby grants to BQE a non-exclusive, worldwide, paid-up, royalty-free and irrevocable right and license, under all of Customer's intellectual property rights, to use, perform and display any Integrated Customer Application and its content for purposes of BQE's internal testing purposes (including security testing), and Customer agrees to provide BQE with a reasonable number of copies of or other access to such Integrated Customer Application for such purposes.
      2. BQE Rights. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that, as between BQE and Customer, BQE is the exclusive owner of all right, title and interest in and to all patent rights, copyrights, trademarks, know-how, trade secrets, inventions, ideas, systems, programs, software, source code, modules, applications, documentation, including written or electronic reports, analysis or other working papers, and other work product developed, prepared or designed in connection with the Developer Platform, BQE Application, BQE's other products and services, and all related technology, websites and content, and any modifications or derivative works of the foregoing, and all other intellectual property rights inherent in and appurtenant to the foregoing (collectively, the "BQE Materials"). Except for the limited use right expressly granted to Customer under this Agreement, BQE does not grant Customer any right, title, or interest in the BQE Materials. Customer shall have no obligation to give BQE any suggestions, comments or other feedback relating to the BQE Materials ("Feedback"). If Customer provides BQE with Feedback, Customer hereby grants to BQE a worldwide, paid-up, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify, sublicense (through multiple tiers) and otherwise exploit the Feedback (including any ideas, concepts, methods, know-how or techniques embodied in Feedback) for any purpose, without any restriction or obligation to Customer based on intellectual property rights or otherwise.
      3. BQE Independent Development and Patent Issues. Customer acknowledges that BQE may be independently creating (or may receive from third parties) features, applications, content, or other products or services that may be similar to or competitive with any Integrated Customer Application, and nothing in this Agreement shall be construed as restricting or preventing BQE from doing so. In addition, in order to allow others to benefit from the Developer Platform, Customer agrees not to assert (or assist or encourage anyone in asserting) any patent claims against BQE (or its users, customers, partners or developers, or BQE's or their respective successors and assigns) where such patent claim relates to the integration, combination or interface of any applications, products or services with the BQE Application or BQE's other products or services.
  3. BQE Customer API Use Program.
    1. Registration. To be eligible to participate in the BQE Customer API Use Program, Customer must register with BQE by completing the registration process established by BQE and supplying such information regarding Customer and its proposed Integrated Customer Application and/or other proposed use of the Developer Platform as BQE may request. BQE reserves the right to accept or deny access to the Developer Platform in its sole discretion.
    2. License. Upon BQE's confirmation that Customer is accepted in the BQE Customer API Use Program, and subject to Customer's acceptance of this Agreement, Customer shall be granted the license to access and use the Developer Platform and BQE's Documentation as provided in Section 2 and subject to the terms and conditions of this Agreement.
    3. License Pricing. There is currently no charge for Customer licenses and no annual fee to maintain such licenses. BQE reserves the right to charge a fee or otherwise modify its pricing structure in the future in its sole discretion. In the event that BQE commences to charge for Customer licenses, BQE will provide Customer with at least ninety (90) days' advance notice of such change.
    4. Inspection and Approval. BQE shall be given the opportunity to discuss with Customer the integration method for the BQE Application and shall be entitled to approve the final product integration connection between the BQE Application and any Integrated Customer Application, which approval may be given or withheld in BQE's sole discretion.
    5. Account Information; User Data. Customer shall be solely responsible for the accuracy, completeness, quality, legal right to use or possess, appropriateness and reliability of all information provided by Customer to BQE. BQE is not responsible for the correction, damage, destruction, loss or failure to store any User Data caused by Customer or any Integrated Customer Application. User Data is owned solely by Customer.
    6. Security. Customer shall be solely responsible for its use of the Developer Platform, any Integrated Customer Application and any User Data or other content that Customer uses with the BQE Application. Customer shall notify BQE as soon as practicable of any unauthorized or suspected unauthorized use of any password, account or User Data or any other breach or suspected breach of security.
    7. Development Support. During Customer's development or integration of any Integrated Customer Application, BQE will provide development support through email and other communication channels as needed.
    8. Modifications. While BQE may provide Customer with support or modifications for the Developer Platform, BQE is not obligated to do so and shall have no obligation to fix or respond to errors Customer may encounter. In BQE's sole discretion and without liability to Customer, BQE may add, remove or modify any features of the Developer Platform, impose additional eligibility requirements or restrictions for access to the Developer Platform, or discontinue the Developer Platform. If BQE modifies the Developer Platform, BQE may require Customer to use the modified version, which may not be compatible with any Integrated Customer Application developed using previous versions. BQE typically make these changes as part of the overall BQE Customer API Use Program and may not be able to provide Customer with individual notice of the changes. BQE shall not be responsible for any user's interruption or inability to access any Integrated Customer Application as a result of any modifications to the Developer Platform and/or Customer's failure to keep current with the latest version of the Developer Platform.
  4. Customer's Additional Responsibilities.
    1. Customer's Use of Customer Application. Customer shall at all times comply with any terms of use applicable to its use of any Integrated Customer Application. Customer acknowledges that it is solely responsible, and that BQE has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of any Integrated Customer Application. Without limiting the foregoing, Customer will be solely responsible for (a) the technical installation and operation of any Integrated Customer Application; (b) creating and displaying information and content on, through or within any Integrated Customer Application; and (c) ensuring that any Integrated Customer Application does not violate or infringe any intellectual property rights of any Person.
    2. Compliance with Terms and Conditions. With respect to all uses of the Developer Platform by Customer, Customer must comply with all restrictions set forth in this Agreement, the BQE license agreement and any other terms of service applicable to the BQE Application, and BQE's Privacy Policy.
    3. Prohibited Uses. Customer agrees not to use, nor permit any Person to use, the Developer Platform to:
      1. Submit to the Developer Platform or BQE Application any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature;
      2. Defame, abuse, harass, stalk or threaten others, promote unlawful activities or send disruptive or offensive messages or advertisements;
      3. Try to exceed or circumvent limitations on server or API calls and use;
      4. Interfere with, modify or disable any feature, functionality or security controls of BQE's API's or the BQE Application, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for BQE's API's or the BQE Application;
      5. Copy, reformat, reverse-engineer or otherwise modify the Developer Platform, access credentials or BQE’s website or content;
      6. Download, scrape, post or transmit (in any form or means) any part of BQE's website or content;
      7. Sublicense BQE's API's or any other portion of the Developer Platform for use by any Person;
      8. Create an API or similar function designed to help Customer enhance its websites and/or any Customer Application that functions substantially the same as any of BQE's API's or any paid feature or functionality of the BQE Application or BQE's other products or services, or offer such API or similar function for use by third parties; or
      9. Access the Developer Platform for competitive purposes (including to connect to a competitive product or to create Customer's own competitive product) or publicly disseminate performance information or analysis (including uptime, response time and/or benchmarks) relating to BQE's API's.
  5. Confidentiality.
    1. Customer Confidential Information. Customer shall not disclose any information to BQE that Customer considers to be confidential. To avoid any potential confusion, Customer agrees that any unsolicited information Customer provides to BQE in relation to the Developer Platform will be non-confidential and that BQE may use it under the same terms as for Feedback above. However, this Section 5.1 does not apply to the extent Customer has entered into a separate non-disclosure agreement or other confidentiality terms with BQE addressing Customer’s confidential information in relation to the Developer Platform.
    2. BQE Confidential Information. BQE may provide certain information to Customer that is confidential or proprietary ("BQE Confidential Information"). BQE Confidential Information consists of (a) Customer's access keys or logins for the Developer Platform, -any non-public elements of the Developer Platform or any pre-release information about the BQE Application, and (b) anything identified or marked as "Confidential" or "Proprietary" or that Customer should reasonably understand to be confidential or proprietary under the circumstances. Customer shall take all reasonable steps to assure that any BQE Confidential Information which has or will come into the possession or knowledge of Customer in connection with this Agreement, whether transmitted prior to or after the Effective Date, shall not be disclosed to others, in whole or in part, without the prior written permission of BQE, and shall be used solely for the purpose for which such information was provided and for no other purpose whatsoever.
    3. Return of Materials. At BQE's request, at any time and for any reason, Customer shall return or destroy all BQE Confidential Information furnished to or obtained by Customer or any of its agents or representatives, including all notes, excerpts, analyses and other documents derived from such BQE Confidential Information and prepared by Customer or its agents or representatives. Customer and its agents and representatives shall not retain any copies, extracts or other reproductions thereof, including those resident in computer files, unless otherwise authorized by BQE in writing. Upon BQE's written request, Customer shall deliver a written certification of such return or destruction to BQE. Notwithstanding the return or destruction of BQE Confidential Information, Customer and its agents and representatives shall continue to be bound by their obligations of confidentiality and other obligations hereunder.
    4. Independent Contractors. Customer may utilize the services of independent contractors who may necessarily gain access to BQE Confidential Information in the course of providing services to Customer. As a condition of each independent contractor's access to BQE Confidential Information, the independent contractor shall (a) be specifically informed of the confidential nature of BQE Confidential Information and (b) execute an agreement with Customer in which the independent contractor agrees (i) to use BQE Confidential Information only to perform services for Customer, (ii) not to disclose BQE Confidential Information to any Person or to use such information for its own purposes, and (iii) to be bound by covenants of confidentiality at least as restrictive as those contained in this Agreement. Nevertheless, Customer shall be responsible for any breach of this Agreement by all those who gain access to BQE Confidential Information, directly or indirectly, via Customer or its affiliates.
  6. Term, Termination and Suspension.
    1. Term of Agreement. Unless earlier terminated pursuant to Section 6.2, 6.3 or 6.4, the term of this Agreement will begin on the Effective Date and will terminate after a period of one (1) year; provided, however, that this Agreement will be automatically extended for successive one-year periods unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days before the expiration of the then-current term.
    2. Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party in the event of a material default by the other Party of any of its obligations hereunder. The non-performance of any obligation hereunder shall not be deemed a default unless the same shall not have been cured within ten (10) days after the non-performing Party has received written notice of such non-performance from the other Party.
    3. Termination Without Cause. Either Party may terminate this Agreement for any or no reason by giving the other Party at least thirty (30) days' prior written notice.
    4. Termination of BQE Customer API Use Program. BQE reserves the right to cancel or modify the BQE Customer API Use Program in its entirety, at any time and for any reason. If the BQE Customer API Use Program is terminated by BQE for any reason, BQE shall give written notice of such termination to Customer and Customer shall no longer be able to participate in, or receive the benefits of, the BQE Customer API Use Program and this Agreement shall be automatically terminated.
    5. Effect of Termination. In the event of any termination of this Agreement, neither Party shall have any remaining rights, duties or obligations hereunder, except that: (a) Customer shall cease to exercise any rights and licenses granted by BQE hereunder; (b) any accrued rights or obligations of the Parties arising in any manner under this Agreement as of the date of termination and Sections 2.3, 2.4, 2.5, 3.5, 3.6, 4, 5, 6.5 and 7 through 11, inclusive, shall survive any termination of this Agreement.
    6. Suspension. BQE reserves the right to suspend, without prior notice, Customer's access to and use of the Developer Platform, BQE Application and/or the licenses granted hereunder if BQE believes (a) Customer has violated or attempted to violate any material term or condition hereunder, (b) use of any Integrated Customer Application with the BQE Application is not in BQE's best interests, (c) Customer has engaged, or is engaging, in unlawful activity, or (d) as required by applicable law.
  7. Customer's Representations and Indemnity
    1. Representations and Warranties. Customer represents and warrants to BQE that: (a) it has the requisite power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform its obligations under this Agreement; (b) any Integrated Customer Application and Customer's use of the Developer Platform will not violate any Person's rights (including intellectual property rights and rights of privacy or publicity) or any laws, rules, regulations or orders, including those relating to data privacy, data transfer, international communications and the export of technical or personal data; (c) all information Customer provides to BQE is and will be true, accurate and complete; and (d) Customer will not interfere with BQE's business practices, the way in which BQE offers the BQE Application or Developer Platform or any third-party products, services or networks used with the Developer Platform.
    2. Indemnification. Customer shall indemnify, defend and hold harmless BQE and its affiliates, and their respective officers, directors, employees, agents, contractors, end-users, licensees, attorneys, successors and assigns, from and against any losses, claims, damages, liabilities, costs or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or related to (a) Customer's use of the Developer Platform, (b) any Integrated Customer Application, (c) Customer’s breach or alleged breach of this Agreement, and (d) Customer's infringement or alleged infringement of any Person's rights and related to the development, use and/or maintenance of any Integrated Customer Application. BQE may at its own expense participate in the defense and settlement of any claim with its own counsel, and Customer may not settle any claim without BQE's prior written consent (not to be unreasonably withheld).
  8. Disclaimer of Warranties. THE DEVELOPER PLATFORM, BQE APPLICATION AND ALL OTHER BQE MATERIALS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS". EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, BQE AND ITS THIRD-PARTY LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. BQE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE (A) RELATED TO RELIABILITY, ACCURACY OR COMPLETENESS OF THE DEVELOPER PLATFORM OR ANY BQE MATERIALS, (B) THAT BQE WILL CONTINUE TO OFFER THE DEVELOPER PLATFORM OR (C) THAT USE OF ANY BQE MATERIALS WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS. Customer may have other statutory rights, in which case the disclaimers above will apply to the full extent permitted by law.
  9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, (A) BQE WILL BE NOT LIABLE FOR ANY LOSS OF USE, LOSS OR INACCURACIES OF DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, DOWNTIME, COSTS OF DELAY, LOST PROFITS OR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES; AND (B) IN ANY EVENT BQE'S ENTIRE AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (1) THE TOTAL AMOUNT PAID (IF ANY) BY CUSTOMER TO BQE TO USE THE DEVELOPER PLATFORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY OR (2) ONE THOUSAND U.S. DOLLARS (US$1,000). CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, NOTWITHSTANDING ANY LIMITED REMEDY'S FAILURE OF ESSENTIAL PURPOSE.
  10. Compliance with Laws. BQE agrees that it will comply in all material respects with all current federal, state or local laws, ordinances, regulations, rules, decisions, orders or requirements adopted from time to time applicable to the Developer Platform, any licenses granted to Customer under this Agreement, or otherwise in connection with BQE's performance of its obligations under this Agreement. Customer agrees that it will comply in all material respects with all current federal, state or local laws, ordinances, regulations, rules, decisions, orders or requirements adopted from time to time applicable to the Developer Platform, any Integrated Customer Application, any licenses granted to BQE under this Agreement, or otherwise in connection with Customer’s performance of its obligations under this Agreement.
  11. Miscellaneous
    1. Notices. All notices, requests, demands, waivers, consents and other communications hereunder shall be in writing, shall be delivered either in person, by electronic means, by a nationally-recognized courier service for next business day delivery or by mail, and shall be deemed to have been duly given and to have become effective (a) upon receipt if delivered in person or by electronic means calculated to arrive on any business day prior to 5:00 p.m., local time, or on the next succeeding business day if delivered on a non-business day or after 5:00 p.m., local time, (b) one business day after having been delivered to a nationally-recognized courier service for next business day delivery, or (c) three business days after having been deposited in the mails as certified or registered mail, return receipt requested, all fees prepaid, directed, in the case of BQE, to BQE Software, Inc., 3825 Del Amo Boulevard, Torrance, California 90503, to the attention of Bob Wolff, email: coremarketplacemanager@bqe.com, and, in the case of Customer, to Customer’s contact information as provided to BQE (or at such other address as shall be given by a Party in writing pursuant hereto).
    2. Relationship of the Parties. The relationship between the Parties under this Agreement is solely that of independent contractors, and neither Party is or shall be construed to be a partner, joint venturer, employee, agent, representative or participant of or with the other Party for any purpose whatsoever. Neither Party shall have any right or authority whatsoever to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party or to bind the other Party in any capacity.
    3. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior negotiations, discussions, undertakings and agreements, whether written or oral, between the Parties with respect to the subject matter hereof.
    4. Headings. The heading of each section of this Agreement is solely for the convenience of the Parties and shall not explain, modify, interpret or expand the provisions herein.
    5. No Third-Party Beneficiaries. Except as otherwise specifically provided herein, Customer and BQE hereby agree that the duties, obligations, and terms and conditions of this Agreement are provided for the sole benefit of the Parties hereto and are not rendered for the benefit of any Person other than the Parties, without the prior written consent of the other Party.
    6. No Construction Against the Drafter. The Parties agree that this Agreement is the result of careful negotiations between sophisticated parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement, shall not apply to the terms and conditions of this Agreement.
    7. Severability. The terms of this Agreement are severable, and if any provision of this Agreement is determined to be invalid, illegal or otherwise unenforceable, such provision shall be enforced to fullest extent permitted by law, and the remainder of this Agreement shall remain in full force and effect.
    8. Waivers. No term or provisions hereof shall be deemed waived and no breach excused, in whole or in part, unless such waiver or consent shall be in writing and signed by the Party to be charged. No waiver by any Party of any provision of this Agreement or any default hereunder shall affect such Party's right thereafter to enforce such provision or to exercise the right or remedy set forth in this Agreement in the event of any other default, whether or not similar.
    9. Successors and Assigns. Customer may not assign or otherwise transfer its rights or interest in this Agreement without BQE's prior written consent, and any assignment without such consent is null and void. BQE may assign, transfer or delegate its rights and obligation under this Agreement in its discretion. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assignees
    10. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced under the laws of the State of California (regardless of the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect and performance.
    11. Arbitration; Venue. All claims or disputes arising out of or relating to this Agreement or the BQE Materials will be resolved by binding arbitration conducted by JAMS in Los Angeles County, California, rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would. The Parties also both agree that BQE or Customer may bring suit in court to enjoin infringement or other misuse of intellectual property rights or BQE Confidential Information. The Parties agree that all claims and disputes will be resolved exclusively in Los Angeles County, California, and Customer consents to personal jurisdiction there, and waive any claim of forum non conveniens.
    12. Modification of Agreement. BQE reserves the right to modify the terms and conditions of this Agreement without prior notice, and such modifications shall become effective upon posting of the modified Agreement on BQE's portal or upon notice to Customer, whichever comes first. Customer may be required to accept the modified terms in order to continue using the Developer Platform, and in any event Customer agrees that Customer's continued use of the Developer Platform after the changes become effective constitutes acceptance of the modified terms. Except as set forth in this Section 11.12, all amendments must be in writing and signed by both Parties.

THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON CLICKING “I AGREE” ON BEHALF OF CUSTOMER HAS BEEN AUTHORIZED TO DO SO.

Last revised: December 20, 2019