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Developer Partner 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 DEVELOPER PARTNER PROGRAM BEFORE CLICKING THE CHECKBOX LABELED "I AGREE TO THE DEVELOPER PARTNER AGREEMENT." BY CLICKING THE "I AGREE" CHECKBOX, YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THIS BQE DEVELOPER PARTNER 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 DEVELOPER PARTNER PROGRAM.

This BQE Developer Partner Agreement (this "Agreement") is entered into as of the date ("Effective Date") that you (hereinafter referred to as "Partner") click "I Agree." This Agreement is between Partner 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, Partner desires for BQE to make the BQE Application accessible to Partner through its access and use of BQE's API's, software development kits, app keys and access tokens, and developer webpages and documentation (collectively, the "Developer Platform"), and to permit Partner to integrate its Partner Application with the BQE Application through the Developer Platform in order to offer customers a more integrated solution; and

WHEREAS, BQE desires to work with Partner to make the Developer Platform available, all 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. "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.
    2. "Partner Application" shall mean the application, product or service which is developed by Partner for integration with the BQE Application, and which is owned and operated by the Partner.
    3. "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.
    4. "User Data" means any personally identifiable information of a user that is transmitted through the Partner 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. Partner License and Reservations of Rights.
    1. License to Use Developer Platform. Subject to the terms and conditions of this Agreement, BQE hereby grants to Partner the worldwide, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Developer Platform solely for its development efforts, as may be necessary to build the Partner Application and enable it to access or interface 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, and Partner shall have no right to use the BQE Application functionality for Partner's regular business operations other than for its development of a Partner Application, unless Partner separately executes a BQE license agreement for use of the BQE Application.
    2. Demonstration Account. Subject to the terms and conditions of this Agreement and any additional terms of service governing use of the BQE Application as may be adopted by BQE from time to time, BQE grants Partner a worldwide, non-exclusive, non-assignable, non-transferable and non-sublicensable license to use and display content for one (1) demonstration account of the BQE Application ("Demonstration Account") solely for demonstration purposes in order to promote and sell the Partner Application to prospective customers, provided such use is for internal business use only and shall not include service bureau use, outsourcing, renting or time-sharing of the BQE Application. The rights granted to Partner in this Section 2.2 are provided on the condition that Partner does not (and does not allow any third party 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 otherwise attempt to discover any source code, modify the BQE Application or use unauthorized modified versions of the BQE Application, 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. Except as provided in this Agreement, the license granted in this Section 2.2 to Partner does not convey any rights in the BQE Application, express or implied, or ownership in the BQE Application or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by BQE.
    3. License for Documentation. Subject to the terms and conditions set forth in this Agreement, BQE hereby grants to Partner a worldwide, non-exclusive, non-assignable and non-transferable license to use BQE's Documentation solely in order to enable the Partner Application to access or interface with the BQE Application. Partner shall not reprint, distribute or embed this content in any form whatsoever without the prior written consent of BQE.
    4. Trademark License Grant. In the event that either Party ("Trademark Licensor") permits the other Party ("Trademark Licensee") to use Trademark Licensor's trademarks, service marks, trade names, logos, insignias, trade dress or other proprietary trade designations ("Trademarks") in connection with this Agreement, Trademark Licensee is granted a worldwide, limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable, royalty-free and fully-paid license during the term of this Agreement to use such Trademarks solely for purposes related to its performance under this Agreement, including use in Trademark Licensee's website, advertisements or promotional materials. Trademark Licensor will have the right to approve the format and presentation of its Trademarks as used by Trademark Licensee. Trademark Licensee's use of Trademark Licensor's Trademarks, including all goodwill arising therefrom, will inure to the benefit of Trademark Licensor. Refer to the Go-To-Market Guide for specific guidelines on approved trademark usage.
    5. Conditions for Use. Except as otherwise provided hereunder, all uses by Trademark Licensee of Trademark Licensor's Trademarks will be in accordance with such quality control standards as Trademark Licensor may promulgate from time to time. Trademark Licensee agrees to refrain from all uses of Trademark Licensor's Trademarks to which Trademark Licensor objects. All websites, advertisements and other promotional materials prepared by Trademark Licensee that display Trademark Licensor's Trademarks will also bear the appropriate copyright and/or trademark notices as prescribed by Trademark Licensor. Trademark Licensee agrees that it will not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to Trademark Licensor's Trademarks. At no time during the term of this Agreement or thereafter will Trademark Licensee challenge or file any application with respect to any Trademarks of Trademark Licensor.
    6. 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, Partner shall not, and Partner 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.
    7. BQE's Reservation of Rights. All rights not expressly granted to Partner 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 Partner or any end-user.
    8. Intellectual Property Ownership.
      1. Partner Rights. Notwithstanding anything to the contrary in this Agreement, BQE acknowledges and agrees that, as between BQE and Partner, Partner 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 Partner Application and all other intellectual property rights inherent in and appurtenant to the Partner Application, subject to BQE's rights in and to any underlying BQE Materials (as defined below). For avoidance of doubt, Partner shall own any application or tool developed by Partner to connect with the BQE Application. Partner agrees to provide BQE with a reasonable number of copies of or other access to the Partner Application. During the term of this Agreement, Partner hereby grants to BQE a non-exclusive, worldwide, paid-up, royalty-free and irrevocable right and license, under all of Partner's intellectual property rights, to: (a) use, perform, and display the Partner Application and its content for purposes of BQE's internal testing purposes (including security testing) and for marketing, demonstrating and making the Partner Application available to end-users; and (b) link to and direct users to the Partner Application. Following the termination of this Agreement and upon written request from Partner, BQE will make commercially reasonable efforts, as determined in its sole discretion, to remove all references and links to the Partner Application from BQE's website. BQE has no other obligation to delete copies of, references to, or links to the Partner Application.
      2. BQE Rights. Notwithstanding anything to the contrary in this Agreement, Partner acknowledges and agrees that, as between BQE and Partner, 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 Partner under this Agreement, BQE does not grant Partner any right, title, or interest in the BQE Materials. Partner shall have no obligation to give BQE any suggestions, comments or other feedback relating to the BQE Materials ("Feedback"). If Partner provide BQE with Feedback, Partner 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 Partner based on intellectual property rights or otherwise.
      3. BQE Independent Development and Patent Issues. Partner 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 the Partner 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, Partner 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 Developer Partner Program.
    1. Registration. To be eligible to participate in the BQE Developer Partner Program, Partner must register with BQE by completing the registration process established by BQE and supplying such information regarding Partner, its business and its proposed Partner Application as BQE may request. BQE reserves the right to accept or deny access to the BQE Developer Platform in its sole discretion.
    2. License. Upon BQE's confirmation that Partner is accepted in the BQE Developer Partner Program, and subject to Partner's acceptance of this Agreement, Partner shall be granted the license to access and use the Developer Platform, the Demonstration Account and BQE's Documentation as provided in Section 2 of this Agreement and subject to the terms and conditions of this Agreement.
    3. License Pricing. There is currently no charge for Partner 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 Partner licenses, BQE will provide Partner with at least ninety (90) days' advance notice of such change.
    4. Inspection and Approval. BQE shall be given the opportunity to discuss with Partner the integration method for the BQE Application and shall be entitled to approve the final product integration connection between the BQE Application and the Partner Application, which approval may be given or withheld in BQE's sole discretion.
    5. Account Information; User Data. Partner shall be solely responsible for the accuracy, completeness, quality, legal right to use or possess, appropriateness and reliability of all information provided by Partner to BQE. BQE is not responsible for the correction, damage, destruction, loss or failure to store any User Data caused by Partner or the Partner Application. User Data is owned solely by each User. Partner may not sell, repurpose or data mine any User Data for any purpose.
    6. Security. Partner shall be solely responsible for its use of the Developer Platform, the Partner Application and any User Data or other content that Partner or its customers use with the BQE Application. Partner 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 Partner's development of the Partner Application, BQE will provide development support through email and other communication channels as needed.
    8. Marketing Support. Following BQE's approval of the final product integration connection between the BQE Application and the Partner Application, BQE will (a) include the Partner Application in BQE's integrated applications directory on BQE's website and (b) promote Partner through the BQE portal through newsletters, user conferences, tradeshows and similar events, as may be appropriate as determined by BQE in its sole discretion.
    9. Modifications. While BQE may provide Partner 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 Partner may encounter. In BQE's sole discretion and without liability to Partner, 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 Partner to use the modified version, which may not be compatible with the Partner Application developed using previous versions. BQE typically make these changes as part of the overall BQE Developer Partner Program and may not be able to provide Partner with individual notice of the changes. BQE shall not be responsible for any user's interruption or inability to access the Partner Application as a result of any modifications to the Developer Platform and/or Partner's failure to keep current with the latest version of the Developer Platform.
  4. Partners' Additional Responsibilities.
    1. End-User Relationships. The Partner Application must include Partner's own legally binding terms of use and privacy policy (the "Partner Terms") that are publicly available to Party's third-party users (assuming Partner has third-party users or that the Partner Application allows for the retrieval of User Data, or where including the Partner Terms would be customary or appropriate under the circumstances). If a user of the BQE Application allows the Partner Application to retrieve any User Data, including where such User Data is aggregated by Partner across more than one user from the BQE Application, Partner must (a) access only the minimum data fields which the Partner Application needs to work properly, as permitted by the user and (b) ensure the User Data is collected, processed, transmitted, maintained and used in accordance with the Partner Terms, all applicable laws and reasonable measures that protect the privacy and security of the User Data. Without limiting the foregoing, the Partner Terms must contain clear and legally adequate disclosures about the nature of the Partner's Application's integration with BQE and the User Data that Partner is collecting and how Partner may use it.
      For clarity, any user's access or use of the BQE Application itself is subject to BQE's terms of service or other applicable terms agreed by BQE with the user, not the Partner Terms. If BQE receives any User Data from or on behalf of a user, including through or enabled by the Partner Application, BQE will treat such User Data under its applicable terms with such user and such data will no longer be subject to the Partner Terms.
    2. Prohibited Uses. Partner agrees not to use, nor permit any third party 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. Copy, reformat, reverse-engineer or otherwise modify the Developer Platform or BQE's website or content, or access credentials;
      5. Download, scrape, post or transmit (in any form or means) any part of BQE's website or content;
      6. Sublicense BQE's API's for use by a third party;
      7. Use User Data to assist with any unsolicited marketing communication (electronic or otherwise) to any Person;
      8. Resell (for a fee or any other commercial benefit) any User Data (for clarity, as used in this Section 4.2.8, "resell" does not include Partner's charging subscription fees for access to the Partner Application, generally);
      9. Transfer any User Data, in the form provided through the Developer Platform, to any third party;
      10. Permit any third party to use any User Data for any purpose not directly related to Partner's advertised product or service offering, including but not limited to, the on-sale of transactional bank feed data or any revenue generating product or services;
      11. Create an API or similar function designed to help Partner enhance its websites and/or the Partner Application that functions substantially the same as any of BQE's API's and offer it for use by third parties; or
      12. Access the Developer Platform for competitive purposes (including to connect to a competitive product or to create Partner'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. Partner Confidential Information. Partner shall not disclose any information to BQE that Partner considers to be confidential. To avoid any potential confusion, Partner agrees that any unsolicited information Partner provide 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 Partner has entered into a separate non-disclosure agreement or other confidentiality terms with BQE addressing Partner's confidential information in relation to the Developer Platform.
    2. BQE Confidential Information. BQE may provide certain information to Partner that is confidential or proprietary ("BQE Confidential Information"). BQE Confidential Information consists of (a) Partner's access keys or logins for the Developer Platform and Demonstration Account, 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 Partner should reasonably understand to be confidential or proprietary under the circumstances. Partner shall take all reasonable steps to assure that any BQE Confidential Information which has or will come into the possession or knowledge of Partner 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, Partner shall return or destroy all BQE Confidential Information furnished to or taken by Partner or any of its agents or representatives, including all notes, excerpts, analyses and other documents derived from such BQE Confidential Information and prepared by Partner or its agents or representatives. Partner 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, Partner shall deliver a written certification of such return or destruction to BQE. Notwithstanding the return or destruction of BQE Confidential Information, Partner and its agents and representatives shall continue to be bound by their obligations of confidentiality and other obligations hereunder.
    4. Independent Contractors. Partner may utilize the services of independent contractors who may necessarily gain access to BQE Confidential Information in the course of providing services to Partner. 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 Partner in which the independent contractor agrees (i) to use BQE Confidential Information only to perform services for Partner, (ii) not to disclose BQE Confidential Information to any third party 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, Partner shall be responsible for any breach of this Agreement by all those who gain access to BQE Confidential Information, directly or indirectly, via Partner or its affiliates.
  6. Term, Termination and Suspension.
    1. Term of Agreement. Unless earlier terminated pursuant to Sections 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 Developer Partner Program. BQE reserves the right to cancel or modify the BQE Developer Partner Program in its entirety, at any time and for any reason. If the BQE Developer Partner Program is terminated by BQE for any reason, BQE shall give written notice of such termination to Partner and Partner shall not longer be able to participate in, or receive the benefits of, the BQE Developer Partner 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) Partner 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 2.6, 2.7, 2.8, 3.5, 3.6, 4.2 and 5 through 12, inclusive, shall survive any termination of this Agreement.
    6. >Suspension. BQE reserves the right to suspend, without prior notice, Partner's access to and use of the Developer Platform, BQE Application, Demonstration Account and/or the licenses granted hereunder if BQE believes (a) Partner has breach any material term or condition hereunder, (b) use of the Partner Application with the BQE Application is not in BQE's or its users' best interests, (c) Partner has engaged, or is engaging, in unlawful activity, or (d) as required by applicable law.
  7. Partner's Representations and Indemnity.
    1. Representations and Warranties. Partner 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) the Partner Application and Partner's use of the Developer Platform will not violate any third party 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 Partner provides to BQE is and will be true, accurate and complete; and (d) Partner will not interfere with BQE's business practices, the way in which it offers the BQE Application or the Developer Platform or any third-party products, services or networks used with the Developer Platform.
    2. Indemnification. Partner 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) Partner's use of the Developer Platform, (b) the Partner Application and Partner's relationships or interactions with any users or third-party distributors of the Partner Application, (c) Partner's breach or alleged breach of this Agreement, and (d) Partner's infringement or alleged infringement of any third party's rights and related to the development, maintenance, distribution and/or sale of the Partner Application. BQE may at its own expense participate in the defense and settlement of any claim with its own counsel, and Partner 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 PARTNER'S REQUIREMENTS OR EXPECTATIONS. Partner 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 PARTNER UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (1) THE TOTAL AMOUNT PAID (IF ANY) BY PARTNER 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). PARTNER 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 Partner under this Agreement, or otherwise in connection with BQE's performance of its obligations under this Agreement. Partner 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, the Partner Application, any licenses granted to BQE under this Agreement, or otherwise in connection with Partner's performance of its obligations under this Agreement.
  11. Publicity and Advertising. Partner or any affiliate or subsidiary shall follow all guidelines with regards to the Trademarks including the guidelines in the Go-To-Market Guide when implementing the Trademarks in any press release or other marketing or promotional content. Partner shall submit proposed press release or marketing materials to BQE for approval which shall not be unreasonably withheld. Partner may not represent, directly or indirectly, that any product or service provided by such party has been created, approved, sponsored or endorsed by BQE.
  12. 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 Partner, to Partner'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 and the attached exhibits constitute 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, Partner 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 to this Agreement 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. Partner 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 Partner 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 Partner consents to personal jurisdiction there, and waive any claim of forum non-convenience.
    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 Partner, whichever comes first. Partner may be required to accept the modified terms in order to continue using the Developer Platform, and in any event Partner agrees that Partner'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 12.11, 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 PARTNER HAS BEEN AUTHORIZED TO DO SO.

Last revised: November 21, 2019