THESE TERMS AND CONDITIONS (THIS "AGREEMENT") FORM A LEGAL AGREEMENT BETWEEN YOU AND BLACKBERRY.
BY CLICKING ON THE "AGREE" BUTTON YOU INDICATE THAT: YOU AGREE ON YOUR OWN BEHALF AND ON BEHALF OF EACH ENTITY FOR WHOSE BENEFIT YOU ACT (TOGETHER "YOU" OR "YOUR") TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Reseller shall place Orders for the BlackBerry Solution (or third party products, if applicable) through a BlackBerry Authorised Distributor. Reseller’s Affiliates may Order the BlackBerry Solution, provided that Reseller remains jointly and severally liable for its Affiliates.
If BlackBerry makes a BlackBerry Solution available which includes a service level commitment to End Users in the Territory, Reseller agrees to co-operate in good faith with BlackBerry in relation to such service level commitments including, without limitation: (i) passing through the payment of any service level commitment credits (if applicable) to End Users, when made available to Reseller by BlackBerry, in accordance with BlackBerry’s reasonable instructions from time to time; (ii) receiving notifications of service level commitment incidents from End Users; and (iii) reporting to BlackBerry any service level commitment incidents notified to Reseller by End Users. No other service level commitments by BlackBerry shall apply.
No more often than once in any 12-month period, BlackBerry may, at its expense, upon written notice and during business hours, audit Reseller’s books and records to ensure compliance with this Agreement. The auditors shall protect the confidentiality of Reseller's information and abide by Reseller's reasonable security policies. Reseller’s refusal to permit an audit within a period of 30 calendar days following receipt of notice shall be a material breach of this Agreement. On a quarterly basis, Reseller will provide End User sell-through reports stipulating the End User’s name and the type of BlackBerry Solution(s) provided to such End Users. Reseller will send reports to: email@example.com.
All use of the BlackBerry Solution by the End User shall be subject to the terms and conditions of the applicable End User License Agreement and/or applicable product/service terms.
Reseller is limited to distributing the BlackBerry Solution to those End Users who have accepted the unmodified terms of the End User License Agreement. Reseller shall ensure that it and its personnel and any Reseller Affiliate shall:
Upon termination of this Agreement: (a) Reseller shall return to BlackBerry any and all BlackBerry marketing collateral supplied to Reseller by BlackBerry or anyone else in support of this Agreement; (b) Reseller shall immediately pay any outstanding amounts due to BlackBerry (c) Reseller shall provide a list of End Users to BlackBerry that have purchased BlackBerry Solution from the Reseller within the last two (2) years prior to termination and (d) BlackBerry may take such additional measures as it deems reasonable, in its sole discretion, to protect the availability and continuity of services for End Users after termination of this Agreement, and Reseller shall reasonably cooperate with BlackBerry to facilitate such continued availability and continuity of service for the benefit of End Users. Except as expressly provided herein, the termination of this Agreement shall not limit either Party from pursuing any other remedies available to it, including injunctive relief. Any termination of this Agreement for cause shall be without prejudice to any other rights or remedies BlackBerry may be entitled to under this Agreement, or at law (subject to any restrictions contained in this Agreement).
Except for the limited use rights expressly provided in this Agreement, Reseller acknowledges and agrees that it does not acquire any intellectual property or other proprietary rights, including without limitation patents, industrial, intangible, designs, trademarks, copyright, moral, trade secret, confidential information or other rights in or relating to the BlackBerry Solution or other BlackBerry intellectual property (“Intellectual Property Rights”), BlackBerry Confidential Information or any translation or other derivative work thereof. Reseller agrees it will not refute or otherwise challenge BlackBerry’s ownership of the Intellectual Property Rights. All comments, ideas, changes or other feedback provided by Reseller to BlackBerry regarding the BlackBerry Solution will be owned by BlackBerry.
All delivery dates are best estimates only. In no event will BlackBerry be liable for increased cost, loss of profits or goodwill or any other special, incidental or consequential damages due to late delivery or non-delivery of BlackBerry Solution.
Neither Party will be liable for its failure to perform or the delayed performance of its obligations if such failure results from circumstances beyond the affected Party’s reasonable control, including without limitation supplier strikes, lock-outs and labour disputes, acts of God(s), war, riot, civil commotion, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction not in force on the Effective Date, accident, fire, flood or severe weather conditions (“Event of Force Majeure”). Each Party agrees to give the other Party prompt notice, containing sufficient details, of any Event of Force Majeure. If an Event of Force Majeure continues for more than ninety (90) working days, either Party will have the right to terminate, without further liability to the other, except that Reseller remains liable for payment of unpaid amounts in respect of the BlackBerry Solution or associated products and services.
Reseller acknowledges that this Agreement does not create an agency, joint venture, partnership, employment relationship, or franchise with BlackBerry. Neither Reseller nor its Affiliates shall have the authority to bind BlackBerry in any manner.
This Agreement will be governed and construed under the laws of the State of New York. Each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts of New York, New York. The Parties further waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. The Parties disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.
Reseller will comply with all applicable laws, ordinances, codes, regulations or policies applicable to Reseller’s resale of the BlackBerry Solution, including without limitation any applicable privacy and data protection laws. Reseller agrees that the BlackBerry Solution may include cryptographic technology, data or information and will not be exported, imported, used, transferred, or re-exported except in compliance with the applicable laws and regulations of the relevant government authorities. Reseller represents that: (a) to the best of Reseller’s knowledge Reseller is eligible to resell the BlackBerry Solution under applicable law; and (b) Reseller will not resell the BlackBerry Solution for the development, production, handling, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or their missile delivery systems, or of materials or equipment that could be used in such weapons or their missile delivery systems, or resell or export to anyone or any entity involved in such activity.
Reseller acknowledges and agrees that notwithstanding anything to the contrary contained in the Agreement, BlackBerry in its discretion may choose to not ship or make available any product and/or service which, in BlackBerry's determination, fails to comply with legal and/or regulatory and/or contractual requirements or restrictions, and/or which BlackBerry is otherwise prohibited from shipping or making available (either temporarily or permanently). Reseller irrevocably authorizes BlackBerry to register or file or disclose on its own behalf or on behalf of Reseller a copy of the Agreement or any portion thereof, as BlackBerry may determine in its sole discretion, with any government authority or agency or other administrative body or as BlackBerry determines may be necessary. Unless Reseller is expressly authorized by BlackBerry in writing or required by law, Reseller will ensure that the Agreement is not registered or filed anywhere or otherwise disclosed to any third parties. Where Reseller is required by a law of the Territory(ies) to disclose the Agreement, Reseller agrees to: (i) provide BlackBerry with sufficient notice to enable BlackBerry to seek an order to limit or preclude such disclosure; (ii) redact from the Agreement being disclosed, any commercial or other information that is not mandatory to disclose or legally permitted to be redacted; and (iii) ensure that the recipient is made aware of the confidential nature of the Agreement being disclosed. Unless otherwise expressly agreed to in writing by BlackBerry, Reseller acknowledges and agrees that BlackBerry is providing only English documentation. Any translation or localisation obligations relating to the BlackBerry Solution, products and/or the English documentation, to comply with local legal, regulatory or other requirements shall be Reseller’s responsibility and shall be performed by Reseller at Reseller’s cost and only in accordance with BlackBerry’s instructions and then current translation guidelines in effect from time-to-time.
BlackBerry may assign this Agreement with Notice to Reseller. Reseller will not assign this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of BlackBerry and any assignment without BlackBerry’s prior written consent shall be null and void and of no effect. BlackBerry may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its Affiliates, contractors or subcontractors or may outsource the performance of some or all obligations to a third party.
Any notice, request, demand or other communication required or permitted under this Agreement (“Notices”) will be in writing and shall be sufficiently given if delivered by hand or sent by registered or recorded mail, courier, email or facsimile addressed to the other Party at the address as the parties may from time-to-time designate in writing delivered pursuant to this notice provision. In addition to the above, Notices to BlackBerry are to be sent to Attention: Legal Department either at BlackBerry Limited at 2200 University Avenue East, Waterloo, Ontario, Canada N2K 0A7 or by email to firstname.lastname@example.org. Any such notices, requests, demands or other communications shall be deemed received and effective: (i) upon delivery, if delivered personally; or (ii) on the date of receipt of facsimile, mail, email or courier, where a confirmation of receipt is provided for such facsimile, mail, email or courier.
BlackBerry’s in-bound suppliers and licensors are third party beneficiaries of the protections and restrictions set out in this Agreement. Except as otherwise specifically stated in this Section, the provisions of this Agreement are for the benefit of Reseller and BlackBerry and not for any other person or entity.
Notwithstanding anything to the contrary contained in the Agreement, Reseller acknowledges and agrees that if there is more than one entity comprising the “Reseller”, including if the entity described under Sold To and Bill To on this Agreement are different, then both entities will be deemed to be the “Reseller” and each of the entities comprising the “Reseller” shall be jointly and severally liable for the obligations of Reseller under this Agreement. Where there are multiple BlackBerry entities that are Parties to this Agreement, BlackBerry’s obligation under the Agreement to Reseller will be no greater than its obligations would be if there was only one entity comprising the “Reseller” and/or one BlackBerry entity as a Party to this Agreement.
Reseller acknowledges on behalf of itself and its Affiliates that it is aware that and it will ensure that its Affiliates are aware that BlackBerry and/or BlackBerry affiliates may have appointed and may, from time-to-time, appoint other distributors, resellers and agents to distribute BlackBerry products and/or services in the Territory(ies), and that BlackBerry and/or BlackBerry affiliates may have distributed and may, from time-to-time, distribute directly or indirectly BlackBerry products and/or services in the Territory(ies) and that nothing in the Agreement precludes BlackBerry from doing any of the foregoing.
This Agreement and the NDA, if one has been executed, is the complete agreement between the Parties concerning the subject matter of this Agreement and supersedes any prior agreement, whether oral or written between the Parties. There are no conditions, understandings, collateral agreements, representations, or warranties expressed or implied, that are not specified in this Agreement. This Agreement may only be modified by a written document executed by the Parties.
The waiver by either Party of any right provided under this Agreement must be in writing and signed by such Party and any waiver will not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
To the extent any section, clause, provision or sentence or part thereof (“Part”) of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render this Agreement valid and enforceable.
7 (Restrictions), 8 (Term and Termination), 9 (Termination Remedies), 10 (Effect of Expiration or Termination), 11 (Confidentiality), 12 (Ownership and Intellectual Property), 13 (Warranty, Limitation of Warranty, Indemnity and Limitation of Liability), 17 (Applicable Law and Jurisdiction), 18 (Compliance with Laws and Export Control), 28 (Survival), and 29 (Order of Precedence).
To the extent of a conflict between this Agreement and any Orders: (a) in respect of Sections 11 (Confidentiality), 12 (Ownership and Intellectual Property) and 18 (Compliance with Laws and Export Control), this Agreement will prevail; and (b) for all other Sections, unless the Order expressly states that it modifies or varies this Agreement, this Agreement will prevail.