This API and SDK License Agreement for Non-Clients (the "Agreement") is applicable to those entities who are not Q2 clients. The Agreement is a legal agreement between You individually if You are agreeing to it in Your own capacity, or if You are downloading, installing, activating, or using the SDK on behalf of Your company or organization, between the entity for whose benefit You act and Q2. By downloading, installing, activating or using the SDK or APIs, You accept all the terms and conditions of this Agreement. If You are downloading, installing, activating, or using the SDK on behalf of Your company or organization, you represent and warrant that you have the authority to bind Your company or organization to these terms and conditions.
YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOUR USE OF THE SDK OR APIs CONSTITUTES ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT ACCESS OR USE THE SDK OR APIs.
1. DEFINITIONS.
a. "API" means a Q2 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 applications or other interfaces, designed to function with the Q2 Services, that You develop, own or operate using the SDK or APIs for the intended purchase or use by Q2 clients.
c. "Authorized Applications" means Applications, or portions thereof to be deployed in a data center designated by Q2, approved in writing by Q2 prior to implementation.
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 APIs, in each case to use on Your behalf to develop Applications or Authorized Applications.
e. “Beta Customers” means the first three Customers for which Q2 enables an Authorized Application.
f. "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, APIs, Documentation, the fees under this Agreement, and both parties' financial data, prices and product roadmaps.
g. “Customer” means an entity that is a current or prospective purchaser of the following items, which You sell directly to that entity: (i) an Authorized Application; or (ii) software You develop, which is used in combination with an Authorized Application.
h. "Documentation" means any related explanatory materials provided by Q2 accompanying the SDK.
i. “End User” means the clients of a Customer who access services via an Authorized Application.
j. “End User Data” means any information relating to an End User, including but not limited to personal information, business information, financial information, user names, passwords, email addresses, geo-location data, credit card numbers, social security numbers, account records and anything related or derived from the foregoing that is transferred to or otherwise comes into Your possession via an Authorized Application.
k. "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.
l. "Q2" means Q2 Software, Inc., a Delaware corporation, with a principle place of business at 13785 Research Blvd., Ste. 150, Austin, Texas 78750.
m. "Q2 Services" means the online banking platform or other data processing services provided by Q2 to Q2 clients.
n. "Residual Information" means any information in intangible form, including ideas, concepts, know-how, or techniques, retained in the unaided memory of the Receiving Party's personnel who use or have access to the Disclosing Party's Confidential Information pursuant to the terms of this Agreement.
o. "Sample Code" means software code that Q2 has included for You to incorporate into Your Applications or Authorized Applications.
p. "SDK" means Q2's software developer's kit that includes Sample Code, Documentation (including in on-line format), and related items.
q. "You" and "Your" refer to any person or entity acquiring or using the APIs 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, license to use the items in the SDK only for the purposes of developing Applications and Authorized Applications; and (ii) a personal, nonexclusive, nontransferable, revocable, license to use and make calls to the APIs only for the purposes of developing Applications and Authorized Applications. 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 APIs.
3. TERM & TERMINATION.
(a) 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.
(b) The parties may terminate this Agreement for convenience upon providing written notice to the other party. You will not receive a refund of Fees for Your termination under this subsection (b).
(c) Upon any termination, You must remove all full and partial copies of the SDK and Documentation from your computer or systems (including any archived copies), discontinue the use of the SDK, and stop making calls to and accessing APIs. 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 have stopped accessing the APIs, have removed the SDK, and have destroyed all copies of the Documentation.
4. ORDER FORM & FEES.
(a) For each Beta Customer you wish for Q2 to enable an Authorized Application, You must submit an order form (“Order Form”) and a signed consent from the Beta Customer, both in a form provided by Q2, for Q2 to enable the Authorized Application. Q2 may reject or terminate an Order Form at any time in its sole discretion.
(b) You will pay Q2 an annual fee per Beta Customer (“Fee”) as provided by Q2 in the Order Form. Your payment obligation commences with respect to a Beta Customer upon Q2’s enablement of the applicable Authorized Application for such Beta Customer. You agree to remit payment to Q2 within thirty (30) days after receipt of Q2's invoice.
(c) 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 services 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, You shall provide Q2 a valid tax exemption certificate within thirty (30) days of receipt of Q2’s invoice.
(d) IN ORDER TO ENABLE THE AUTHORIZED APPLICATION FOR ADDITIONAL CUSTOMERS AFTER THE BETA CUSTOMERS, YOU MUST ENTER INTO A SEPARATE PARTNER INNOVATION PROGRAM AGREEMENT, WHICH WILL CONTAIN DIFFERENT TERMS AND FEES FOR ALL CUSTOMERS.
5. USE OF THE SDK OR APIs.
(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) 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.
(d) You will not 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.
(e) If You use the SDK or APIs 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. You may not, without Q2’s prior written consent, (i) permit a third party software provider to access or use an Application, Authorized Application, or data obtained therefrom; or (ii) access or use an Application, Authorized Application, or data obtained therefrom for the benefit of a third party software provider.
(f) You (and any third party with whom You have contracted to serve advertising) may not collect End User Data without prior End User consent, whether such data is obtained directly from the End User or through the use of an Authorized Application, and then only to provide a service or function that is directly relevant to the use of the Authorized Application. You may not broaden or otherwise change the scope of usage for previously collected End User Data without obtaining prior End User consent for such expanded or otherwise changed data collection.
(g) You must provide clear and complete information to Customers and End Users regarding the collection, use and disclosure of End User Data. Furthermore, You must take appropriate steps to protect such End User Data from unauthorized use, disclosure or access by third parties. If an End User ceases to consent or affirmatively revokes consent for collection, use or disclosure of their End User Data, You (and any third party with whom You have contracted to serve advertising) must promptly cease all such use subject to applicable law. You must provide a privacy policy to End Users explaining Your collection, use, disclosure, sharing, retention, and deletion of End User Data. You agree to notify End Users, in accordance with applicable law, in the event of a data breach in which End User Data collected from Your Authorized Application is compromised.
(h) Applications and Authorized Applications must comply with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdictions in which Your Applications or Authorized Applications may be offered or made available. In addition:
o Applications and Authorized Applications must comply with all applicable privacy and data collection laws and regulations with respect to any collection, use or disclosure of End User Data;
o Applications and Authorized Applications may not be designed or marketed for the purpose of harassing, abusing, spamming, stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and publicity) of others; and
o Neither You, Applications, or Authorized Applications may perform any functions or link to any content, services, information or data or use any robot, spider, site search or other retrieval application or device to scrape, mine, retrieve, cache, analyze or index software, data or services provided by Q2 or its licensors, or obtain (or try to obtain) any such data, except the data that Q2 expressly provides or makes available to You. You agree that You will not collect, disseminate or use any such data for any unauthorized purpose.
6. CONFIDENTIALITY.
(a) 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.
(b) 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.
(c) Notwithstanding any other provision of this Agreement, the Receiving Party has the right at any time to disclose, publish, disseminate, and use Residual Information for any purpose, provided the Receiving Party does not breach its confidentiality obligations under this section in using such Residual Information. The Receiving Party: (i) has no obligation to (1) limit or restrict the work assignments of any of its personnel, or (2) pay any royalties for any intellectual property developed in reliance on or through the use of, in whole or in part, any Residual Information; and (ii) will own exclusively all right, title, and interest, including all patent and other Intellectual Property Rights, in and to any inventions, discoveries, works, or other subject matter developed in reliance on or through the use of, in whole or in part, any Residual Information.
7. PROPRIETARY RIGHTS.
The APIs 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 APIs 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 APIs or SDK and Q2 obtains no right, title or interest from You under the Agreement to those Applications or Authorized Applications. Except as stated herein, this Agreement does not grant You any Intellectual Property Rights to the APIs 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 APIs 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 the APIs 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.
9. UPDATES.
Q2 is under no obligation to provide You with any updates to the APIs 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 APIs or SDK, and to release subsequent versions. You may be required to use the most recent version of the APIs or SDK in order to obtain functionality for associated plug-ins and applications. You agree that the form and nature of the APIs and SDK that Q2 provides may change without prior notice to You and that future versions of the APIs or SDK may be incompatible with applications developed on previous versions of the APIs or SDK.
10. SUPPORT.
Q2 has no obligation to provide You or any users of any Application or Authorized Application with support for the APIs 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 APIs to You only on an "AS-IS" basis. Q2 makes no representation with respect to the adequacy of the APIs 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 APIs 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 APIs AND ITEMS IN THE SDK OR ANY SERVICES RELATED TO THE APIs OR SDK.
12. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAWS, 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 APIs 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.
Q2 DOES NOT EXCLUDE OR LIMIT ITS LIABILITY TO YOU IN ANY WAY WHERE IT WOULD BE UNLAWFUL TO DO SO. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Q2’S TOTAL CUMULATIVE LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED A TOTAL OF ONE THOUSAND US DOLLARS ($1,000).
13. INDEMNIFICATION.
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 third-party 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 APIs 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.
15. WAIVER.
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.
17. NOTICES.
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.
18. ASSIGNMENT.
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 APIs 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 APIs OR SDK, YOUR USE OF THE APIs AND SDK AND ANY APPLICATIONS OR AUTHORIZED APPLICATIONS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE. You agree that the APIs 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 APIs 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 APIs. All rights to use the APIs 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 APIs 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 APIs 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 APIs or SDK granted under this Agreement.
21. ORDER OF PRECEDENCE.
When conflicting language exists between this Agreement and any other written agreement signed by both parties with respect to the APIs or SDK, this Agreement shall control unless the other agreement expressly states otherwise. 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 APIs 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, Customers, and/or end users of the Authorized Application 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 the needs and preferences of Q2 clients, (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 use of Applications or Authorized Applications; and/or (d) any purposes permitted or required by any applicable law.
23. INJUNCTIVE RELIEF.
24. SURVIVAL.
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, including but not limited to Sections 6, 7, 8, 12, 13, 14, 21, 23, 24.