API AND SDK LICENSE AGREEMENT
This API and SDK License Agreement (the "Agreement") is a legal agreement between You individually if You are agreeing to it in Your own capacity, or if You are authorized to acquire the SDK on behalf of Your company or organization, between the entity for whose benefit You act and Q2. By indicating Your acceptance as set forth below, executing a Sales Order for the API or SDK and/or by downloading, installing, activating or using the SDK or API, You accept all the terms and conditions of this Agreement.
YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOUR USE OF THE SDK OR API CONSTITUTES ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT ACCESS OR USE THE SDK OR API.
a. "API" means Q2's developer kit application programming interface that includes Documentation (including in on-line format) and related items that provide You the ability to access and make calls to an endpoint.
b. "Applications" means the software application or other interface that You develop, own or operate using the SDK or to interact with the API.
c. "Authorized Applications" means applications, or portions thereof to be deployed in a data center designated by Q2, developed by You using the SDK and approved in writing by Q2 prior to implementation for use with the Q2 Services.
d. "Authorized Users" means: (i) any of Your employees; or (ii) any consultants, independent contractors and any other persons You authorize to use or to whom You otherwise make available the SDK or API, in each case to use on Your behalf to develop Applications or Authorized Applications.
e. "Confidential Information" means any information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party") which, (i) if in written, graphic, machine readable, or other tangible form, is marked as "Confidential" or "Proprietary," or (ii) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential. The parties acknowledge that Confidential Information additionally includes the SDK, Documentation, and both parties' financial data, prices and product roadmaps.
f. "Documentation" means any related explanatory materials provided by Q2 accompanying the SDK.
g. "Intellectual Property Rights" means any patent rights (including the exclusive right to make, use, and sell), copyright rights (including the right to use, reproduce, modify, distribute, publicly display, and publicly perform the copyrighted work), trademark rights (including trademarks, trade names, service marks, and trade dress), trade secrets, know-how, rights of publicity, rights of privacy, moral rights, goodwill and any other similar rights or intangible assets recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing.
h. "Q2" means Q2 Software, Inc., a Delaware corporation, with a principle place of business at 13785 Research Blvd., Ste. 150, Austin, Texas 78750.
i. "Q2 Services" means the data processing services provided to You by Q2 and described in a separate agreement between You and Q2.
j. "SDK Sales Order" or "API Sales Order" means Q2's sales order form which You and Q2 mutually execute for Your purchase of the Q2 Services specific to the SDK or API (e.g., certification, code reviews, support, etc.), and which specifies at a minimum the Q2 Services, applicable Fees and quantity.
k. "Sample Code" means software code that Q2 has included for You to incorporate into Your application programs.
l. "SDK" means Q2's software developer's kit that includes Sample Code, Documentation (including in on-line format), and related items that are placed on Your computer by executing the SDK installer and/or otherwise manually downloaded by You.
m. "You" and "Your" refer to any person or entity acquiring or using the API or SDK under the terms of this Agreement.
2. LICENSE GRANT.
Subject to Your compliance with the terms of this Agreement, Q2 grants to You (i) a personal, nonexclusive, nontransferable, revocable, royalty-free license to use the items in the SDK only for the purposes of internal development of Applications or Authorized Applications designed to function with the Q2 Services and (ii) a personal, nonexclusive, nontransferable, revocable, royalty-free license to use and make calls to the API in order to develop, implement and distribute software applications, services or products which interface with the Q2 Services. Any modified or merged portion of the Sample Code is subject to this Agreement. Nothing in the Agreement gives You a right to use any of Q2's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK or API. In consideration of the rights granted by Q2 herein, You hereby grant to Q2, its affiliates and applicable third parties a fully paid-up, royalty-free, non- exclusive, worldwide, revocable right and license to use, reproduce, perform, provision for You and Your end users, and display the Authorized Applications in order to provide You the Q2 Services.
3. TERM & TERMINATION.
This Agreement shall become effective and binding on You and Q2 on the date you accept all the terms and conditions of this Agreement and shall continue in effect until terminated as set forth herein.
Q2 has the right to terminate this Agreement immediately, without judicial intervention, if You materially fail to comply with any term herein. Q2 may also terminate this Agreement on the later of ninety (90) days after providing You prior notice or if applicable, upon termination or expiration of Your separate master agreement with Q2 for Q2's online banking services (the "Master Agreement"). Notwithstanding the foregoing, if You have entered into a Master Agreement with Q2, this Agreement shall automatically terminate upon expiration or termination of such Master Agreement. If Q2 terminates this Agreement by providing You with ninety (90) days prior notice, Q2 shall provide You a refund of any pre-paid but unused Fees pursuant to the Sales Order related to Your use of the SDK or API as of the effective date of termination. Upon any termination, You must remove all full and partial copies of the items in the SDK and stop making calls to and accessing the API from your computer or systems (including any archived copies) and discontinue the use of the API and the items in the SDK. You further agree to destroy all copies of any Documentation contained on any hard drive or other fixed medium of storage. You agree to execute and return a certificate of destruction within five (5) days of the effective date of termination, certifying that You will stop accessing the API and have removed the items of the SDK and destroyed all copies of the Documentation.
In the event that You enter into a Sales Order for the purchase of Q2 Services specific to the SDK or API, You shall pay Q2 the Fees according to the payment schedule set forth in the SDK Sales Order or API Sales Order and You agree to remit payment to Q2 within fifteen (15) days after receipt of Q2's invoice. The Fees are exclusive of, and You are responsible for paying to Q2, all existing and future applicable taxes, charges, duties or assessments levied or assessed by any governmental authority as a result of the execution or performance of the Q2 Services or any other service or materials provided to You pursuant to this Agreement. You shall not be responsible for any ad valorem, income, gross receipts, franchise, privilege, property, value added or occupational taxes applicable to Q2. If You are tax exempt, Client shall provide Q2 a valid tax exemption certificate within thirty (30) days of the effective date of the applicable SDK Sales Order or API Sales Order.
5. USE OF THE SDK OR API.
(a) You may not sell, sublicense, rent, loan or lease any portion of the SDK or API to any third party. You may not reverse engineer, decompile or disassemble any portion of the SDK or API. You may not use the SDK or API to try to gain unauthorized access to any service, data, account or network by any means. You may make a limited number of complete copies of the SDK or API to be used by Authorized Users as provided herein, and not for general business purposes or distribution, and such Authorized Users shall be subject to the obligations and restrictions in this Agreement.
(b) You and Your Authorized Users will not knowingly, develop an Application or Authorized Application or make any products, services or content available through an Application or Authorized Application, which in isolation or with any other software, system, network, or data would, in Q2's judgment, acting reasonably, contain functionality that could be used for inappropriate or improper purposes or interfere with the proper operation of, degrade, cause damage to or adversely affect any software, hardware, services, system, network or data used by Q2 or its customers, or any of their respective products or services, and You will immediately cease any such activity upon Q2 delivering notice of same to You.
(c) You and Your Authorized Users will not use the SDK or API to develop an Application or Authorized Application or make any products, services or content available through an Application or Authorized Application, which is/are intended to be used to commit or would be used predominantly to commit any crime or other illegal or tortious acts. Without limiting the foregoing, any products, services or content available through an Application or Authorized Application must not contain or link to any content, or perform any function, that is illegal (e.g. against any criminal, civil or statutory law or regulation), including, without limitation, any libel or defamation, obscenity, breach of privacy, infringement or misappropriation of any intellectual property rights and/or other proprietary rights of any party.
(d) Any products, services or content made available through an Application or Authorized Application, do not, and will not contain any: (i) virus, trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, drop dead mechanism, or spyware; or (ii) any other software, code, or program that is likely to or is intended to: (A) have an adverse impact on the performance of, (B) disable, corrupt, or cause damage to, or (C) cause or facilitate unauthorized access to or deny authorized access to, or cause to be used for any unauthorized or inappropriate purposes, any software, hardware, network, services, systems, or data ("Malware"). If You become aware of the existence of any Malware in or relating to an Application or Authorized Application, You shall promptly notify Q2.
(e) You will not knowingly develop or distribute any Application or Authorized Application or make any products, services or content available through an Application or Authorized Application that infringes any Q2 or third party Intellectual Property Rights.
(f) If You use the SDK or API to run applications developed by a third party or that access data, content or resources provided by a third party, You agree that Q2 is not responsible for those applications, data, content, or resources. You understand that all data, content or resources which You may access through such third party applications are the sole responsibility of the person from which they originated and that Q2 is not liable for any loss or damage that You may experience as a result of the use or access of any of those third party applications, data, content, or resources.
(g) With respect to any Application or Authorized Application available to end users, You will protect the privacy and legal rights of those end users. If the end users provide You with end user names, passwords, or other login information or personal information, You must make the end users aware that the information will be available to Your Application or Authorized Application, and You must provide a legally adequate privacy notice and protection for those end users. If Your Application or Authorized Application stores personal or sensitive information provided by users, it must do so securely.
(h) Q2 reserves the right to limit the number of API calls You are allowed to make. Q2 may temporarily suspend Your access to the API if You exceed API call limits. Attempts to circumvent API call limits may result in termination of this Agreement. Unused API calls will not rollover to the next call limit period.
The Receiving Party will treat as confidential all Confidential Information of the Disclosing Party, will not use such Confidential Information except to fulfill the purpose of this Agreement and will not disclose such Confidential Information except to the Receiving Party's employees and subcontractors who specifically "need to know" such information and who are bound by obligations of confidentiality at least as restrictive as those set forth herein or to such other persons as the Disclosing Party may expressly authorize in writing. Without limiting the foregoing, the Receiving Party will use at least the same degree of care and security safeguards (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own Confidential Information to prevent the unauthorized disclosure of the Confidential Information. The Receiving Party will promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Confidential Information in the Receiving Party's possession, custody or control.
Confidential Information excludes information that: (i) the Receiving Party can document was in the public domain at the time of disclosure or has entered the public domain without fault of the Receiving Party; (ii) was known to the Receiving Party without restriction of confidentiality at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information; or (v) becomes known to the Receiving Party, without restriction of confidentiality, from a source other than the Disclosing Party, without breach of this Agreement by the Receiving Party. The Receiving Party may disclose the Disclosing Party's Confidential Information to the extent such disclosure is required by applicable law or regulating agency, provided that Receiving Party provides notice to Disclosing Party prior to such disclosure (to the extent permitted by applicable law), and reasonably cooperates with Disclosing Party's efforts to obtain a protective order or otherwise protect or restrict such disclosure.
7. PROPRIETARY RIGHTS.
The API and the items contained in the SDK are the intellectual property of Q2 and its suppliers and are protected by United States copyright and patent law, international treaty provisions and applicable laws of the country in which it is being used. Q2 retains all right, title and ownership of the Intellectual Property Rights in the API and SDK, the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist. Q2 agrees that You own the Intellectual Property Rights in or to any Application or Authorized Application that You develop using the API or SDK and Q2 obtains no right, title or interest from You under the Agreement. Except as stated herein, this Agreement does not grant You any Intellectual Property Rights to the API or to the items in the SDK. All rights not expressly granted herein are reserved by Q2.
8. NON-BLOCKING OF Q2 DEVELOPMENT.
You acknowledge that Q2 is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to an Application or Authorized Application that You may develop or consider developing based on your license herein, including concepts for Applications or Authorized Applications or distinct elements of Applications or Authorized Applications which You may discuss with Q2 or about which Q2 becomes aware by virtue of providing the SDK or access to the API to You. Nothing in this Agreement shall impair, limit or curtail Q2's right to continue with its development, maintenance and/or distribution of Q2's technology or products, including any technology or products that have or might have design and/or functionality similar to Your Applications or Authorized Applications, or contemplated Applications or Authorized Applications or concepts included in either. You agree that other than Your rights to the Applications or Authorized Applications described above, You shall not assert any Intellectual Property Rights arising out of or in connection with this API or SDK or modifications made thereto against Q2, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors for the manufacture, use, import, licensing, offer for sale or sale of any Q2 Services. If You elect to provide Q2 with any suggestions or feedback, You hereby assign to Q2 all Intellectual Property Rights in and to such suggestions or feedback and grant to Q2 an exclusive, transferable, non-revocable right and license to use such suggestions and to create derivative works therefrom. You further acknowledge and agree that Q2 will be entitled to use, implement and exploit any such suggestions or feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting or compensation to You.
Q2 is under no obligation to provide You with any updates to the API or SDK. However, if Q2 does provide You with any updates, such updates shall be subject to the terms and conditions of this Agreement (including the license) or such agreement, if any, which accompanies such updates. Further, to enable all or part of the functionality of an Application or Authorized Application you may need to enter into one or more additional agreements with Q2. Q2 reserves the right to modify the API or SDK, and to release subsequent versions. You may be required to use the most recent version of the API or SDK in order to obtain functionality for associated plug-ins and applications. You agree that the form and nature of the API and SDK that Q2 provides may change without prior notice to You and that future versions of the API or SDK may be incompatible with applications developed on previous versions of the API or SDK.
Except as expressly set forth in an SDK Sales Order or API Sales Order, Q2 has no obligation to provide You or any users of any Application or Authorized Application with support for the API or SDK or any Application or Authorized Application. You understand and agree that You are solely responsible for providing user support and any other technical assistance for the Applications and Authorized Applications.
11. DISCLAIMER OF WARRANTY.
Q2 licenses the SDK and API to You only on an "AS-IS" basis. Q2 makes no representation with respect to the adequacy of the API or any items in the SDK, whether or not used by You in the development of any products, for any particular purpose or with respect to their adequacy to produce any particular result. Q2 and its suppliers shall not be liable for loss or damage arising out of this Agreement or from the distribution or use of Your products that access the API or contain portions of the SDK. Q2 AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF ANY THIRD PARTY RIGHT IN RESPECT OF THE API AND ITEMS IN THE SDK OR ANY SERVICES RELATED TO THE API OR SDK.
12. LIMITATION OF LIABILITY.
Notwithstanding any other provisions of this Agreement, Q2's liability to You under this Agreement shall be limited to the amount paid by You to Q2 for the SDK or API. IN NO EVENT WILL Q2 OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES INCLUDING DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, COSTS, FEES OR EXPENSES OF ANY KIND OR NATURE ARISING OUT OF ANY PROVISION OF THIS AGREEMENT OR THE USE OR INABILITY TO ACCESS OR USE THE API OR USE THE ITEMS IN THE SDK, EVEN IF A Q2 REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY PARTY.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations in Sections 11 and 12 may not apply to You. You may have rights which vary from state to state or jurisdiction to jurisdiction. The foregoing does not affect or prejudice Your statutory rights. To the extent permissible, any implied warranties are limited to ninety (90) days.
To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless Q2, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney's fees) arising out of or accruing from (a) Your use of the API or SDK, (b) any Applications or Authorized Applications, and (c) any non-compliance by You with the Agreement.
14. CHOICE OF LAW.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Texas. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Q2, its agents or employees, but only by an instrument in writing signed by an officer of Q2.
16. NATURE OF RELATIONSHIP.
This Agreement shall not create or be construed as creating a joint venture, co-ownership, partnership, or agency relationship between You and Q2. Neither party will have authority to or will hold itself out as having any authority to incur, assume, or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of, or on behalf of, or in any way binding upon, the other.
Any notice shall be in writing and delivered as follows, with notice deemed given as indicated: (i) by personal delivery, when delivered personally; (ii) by overnight courier, upon written verification of receipt; or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. Notice to Q2 shall be sent to the address set forth in Section 1, Definitions, of this Agreement or to such other address as a party may provide to the other party in writing.
You shall not assign, sublicense or delegate any of Your rights or obligations under this Agreement to any third party without the prior written consent of Q2. Any assignment, sublicense or delegation in violation of this provision shall be null and void.
19. U.S. GOVERNMENT REGULATIONS.
THE SDK AND API ARE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE API OR SDK, YOUR USE OF THE API AND SDK AND ANY APPLICATIONS OR AUTHORIZED APPLICATIONS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. You agree that the API and SDK and any Applications or Authorized Applications will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act. In addition, if any part of the API or SDK is identified as export controlled items under the export laws, You represent and warrant that You are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that You are not otherwise prohibited under the export laws from receiving the SDK or accessing the API. All rights to use the API and SDK are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement.
20. OPEN SOURCE SOFTWARE.
Notwithstanding anything to the contrary, You are not licensed to (and You agree that You will not) integrate or use the API or SDK with any Viral Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the API or SDK in source code form, for the purpose of making derivative works, or at no charge. For the purposes of this Section 20, "Viral Open Source Software" shall mean software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license terms that could require, or condition Your use, modification, or distribution of such software on, the disclosure, distribution, or licensing of any other software in source code form, for the purpose of making derivative works, or at no charge. Any violation of the foregoing provision shall immediately terminate all of Your licenses and other rights to the API or SDK granted under this Agreement.
21. ORDER OF PRECEDENCE.
When conflicting language exists between this Agreement and any other agreement with respect to the API or SDK, this Agreement shall control. If either You or Q2 employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees. You acknowledge that You have read this Agreement, understand it and that it is the complete and exclusive statement of Your agreement with Q2 which supersedes any prior agreement, oral or written, between Q2 and You with respect to the licensing to You of the API and SDK. No variation of the terms of this Agreement will be enforceable against Q2 unless Q2 gives its express consent, in writing signed by an officer of Q2. The English language version of this Agreement shall be the version used in the event any dispute arises hereunder. All translations of this Agreement are for convenience only and shall not be used by the parties or any court when interpreting or construing this Agreement.
22. CONSENT TO COLLECTION OF INFORMATION.
Notwithstanding anything to the contrary herein, You consent to the collection, use, processing, transmission, and/or disclosure of information submitted through or collected by the Applications or Authorized Applications into the Q2 Services. You warrant that You have obtained all consents necessary under applicable law from Your Authorized Users to disclose their personal information to Q2 and for Q2 and/or its affiliated companies to collect, use, process, transmit, and/or disclose such personal information, which may also include the use, processing, transmission, and/or disclosure of such information to its affiliated companies, for: (a) the internal use of Q2 and its affiliated companies, including, without limitation: (i) understanding and meeting Your needs and preferences, (ii) developing new and enhancing existing services and product offerings, and (iii) managing and developing Q2's business and operations; (b) any purpose related to the registration, provision, activation and/or Your use of the API or SDK and/or related products and/or services, including without limitation to provide You the Q2 Services and to enable license key generation; (c) providing You with upgrades or updates of the API or SDK and/or related products and/or services; and/or (d) any purposes permitted or required by any applicable law.
The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this Agreement.