This BlackBerry Enterprise Server Software License Agreement (the "Agreement")
is a legal agreement between you individually, or if you are authorized
to acquire the Software on behalf of your company or another organization,
between the entity for whose benefit you act ("You") and Research
In Motion Limited ("RIM") (together the "Parties" and
individually a "Party"). BY INDICATING YOUR ACCEPTANCE BY
CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY INSTALLING OR USING THE
SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT,
PLEASE CONTACT RIM VIA http://www.blackberry.com/legal/index.shtml. IF,
PRIOR TO ACTIVATING THE SOFTWARE, YOU DECIDE YOU ARE UNWILLING TO AGREE
TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE BLACKBERRY ENTERPRISE
SERVER SOFTWARE AND THE ACCOMPANYING DOCUMENTATION AND PACKAGING TO RIM
OR THE RIM AUTHORIZED DISTRIBUTOR FROM WHOM YOU OBTAINED THE SOFTWARE.
If You have already paid for the Software within the previous ninety
(90) days, provide RIM with Your proof of purchase and RIM will refund
the fees You have paid for these items to You. Upon providing You with
reasonable notice, RIM reserves the right to make changes to this Agreement.
"Airtime Service Provider" means the service provider that supports the BlackBerry
Solution. If You wish information about which service providers support the
BlackBerry Solution from whom You subscribe for airtime services in Your location,
please contact RIM via legal@rim.com.
"Authorized User(s)" means any of Your employees, consultants or independent
contractors You authorize to use the Software or to whom You otherwise make
the Software available.
"BlackBerry Desktop Software" or "Desktop Software" means RIM proprietary desktop
software, regardless of the form or media in or on which it is provided to
You, which software can be used to provision and maintain cable based synchronization
between the Handheld Product and the BES Software. If the BES Software is used
to wirelessly provision and synchronize a Handheld Product, the Desktop Software
is not a required part of the BlackBerry Solution and provides optional desktop
management functionality.
"BlackBerry Enterprise Server Software" or "BES Software" means the RIM proprietary
software licensed by RIM hereunder, regardless of the form or media in or on
which it is provided to You, which integrates with and provides a consolidated
link between Your messaging platform, Your other corporate application servers
and the Handheld Products provisioned to operate with the BES Software. The
BES Software communicates with Handheld Products using push-based encrypted
wireless data transmission.
"BlackBerry Solution" means the BES Software and one or more of the following:
RIM Products, Handheld Software, Desktop Software, the Services, and RIM supplied
accessories and Documentation. You must have a subscription for airtime on
a wireless network in order to use the BlackBerry Solution. Airtime services
offered for use with the BlackBerry Solution ("Airtime Services") are provided
to You by an Airtime Service Provider and shall be subject to the terms and
conditions of an agreement between You and the Airtime Service Provider pertaining
to the Airtime Services.
"Handheld Product(s)" means: (a) a RIM BlackBerry wireless handheld device; or
(b) a wireless handheld device manufactured or distributed by a third party
who has been authorized by RIM to have such wireless handheld device operate
in conjunction with the Handheld Software ported to that particular device.
"Handheld Software" means RIM proprietary software, firmware and data flashed
or otherwise residing on a Handheld Product at the time of purchase, or otherwise
provided for installation on a Handheld Product.
"RIM Product" means the RIM BlackBerry wireless handheld device and/or any RIM
accessories for such RIM BlackBerry wireless handheld device, but shall not
include any Software.
"Services" means any RIM service provided to You in conjunction with the BlackBerry
Solution.
"Software" means the BlackBerry Enterprise Server Software and, if You use the BES Software
to wirelessly provision Handheld Products (i.e. You do not use the Desktop
Software to provision the Handheld Products), means the Handheld Software on
those Handheld Products that are wirelessly provisioned using the BES Software.
The term Software shall not include the Desktop Software, or any Third Party
Software whether or not Third Party Software accompanies or is provided with
the Software. Use of such software products shall be governed by and subject
to Your agreement to the terms of separate software licenses for those products.
In no event shall such separate software licenses impose any additional obligations,
or obligations inconsistent with the terms of this Agreement, upon RIM whatsoever.
"Third Party Software" means software applications proprietary to a third party
but shall not include software licensed by RIM from a third party for incorporation
into a RIM software product and distribution as an integral part of that RIM
software product under a RIM brand. Where the Handheld Product is not a RIM
BlackBerry wireless handheld device, there may be instances (including, without
limitation the provision of Sun Microsystems Java software) where Third Party
Software is integrated with a RIM software product, but is not licensed hereunder
since that software is licensed to You directly by the manufacturer or distributor
of such Handheld Product ("Manufacturer") pursuant to the terms of the Manufacturer's
license with the Third Party Software supplier.
You acknowledge that You are supplied with the Software, even if such items are
purchased or acquired separately from the BES Software and that RIM provides
the Services conditional upon Your acceptance of the terms and conditions herein
and any additional terms and conditions that You agree to be bound by from
time to time, and Your payment of all fees due for the Software and the Services.
For greater certainty, this Agreement does not constitute a sale of the Software
or any portion thereof to You.
The license to You to use the Software is conditional upon payment of all license
fees due for the Software whether to RIM or to a RIM authorized distributor
of the Software.
Except as the Parties specifically agree in writing, You shall be solely responsible
for the selection, implementation, and performance of any and all third party
equipment and hardware, Third Party Software and telecommunication equipment
and services (including, without limitation, Internet email connectivity and
Airtime Services used in connection with the Software) used in association
with the BlackBerry Solution. You are responsible for ensuring that the email
system and computer(s) with which You choose to operate the BlackBerry Solution
meet RIM's minimum standards for interoperability, including, without limitation,
processing speed, memory requirements, the choice of email server and client
software and the use of dedicated Internet access for accessing Internet email.
The license granted to You hereunder is subject to the following terms and conditions:
a. You and Your Authorized Users will only use the Software and access the
Services in accordance with this Agreement and the Documentation;
b. If You are acquiring the Software as an individual and not on behalf of a
company or other entity, You are over the age of majority;
c. You and Your Authorized Users will comply with Your obligations under this
Agreement and with all applicable laws, regulations and agreements respecting
the use of the Software and access to the Services;
d. You will ensure that any information that is provided to RIM pursuant to
this Agreement is true, accurate, current and complete;
e. You will be responsible for all activities with respect to the Software or
in accessing the Services undertaken by You or undertaken by anyone who has access
to the Software through You;
f. You represent and warrant, as an individual or on behalf of a company or
other entity, that You have the right and the authority to enter into this Agreement;
g. You and Your Authorized Users will not knowingly, after making such inquiries
as a reasonable person would undertake in Your position or in Your Authorized
Users' position as the case may be, use or permit others to use the Software
or access the Services in isolation or with any other software or data to transmit
data in a manner that in RIM's judgment, acting reasonably interferes with, degrades,
or adversely affects any software, system, network or data used by any person
including RIM or an Airtime Service Provider and You will not use or allow any
person to use the Software or access the Services in a way that has a detrimental
effect upon RIM, an Airtime Service Provider or their respective customers or
product or service(s), and will take reasonable steps to avoid doing so;
h. You and Your Authorized Users will not transmit harassing, abusive, libelous,
illegal or deceptive messages or information using the BlackBerry Solution or
any portion thereof;
i. You and Your Authorized Users will not use the BlackBerry Solution or any
portion thereof to commit or attempt to commit a crime or facilitate the commission
of any crime or other illegal or tortious acts;
j. You and Your Authorized Users will not sell or transfer, or attempt to sell
or transfer, the Software or any part thereof without the written permission
of RIM or use the Software or access the Services on behalf of a third party
whether in the operation a service bureau or otherwise;
k. You and Your Authorized Users will cooperate with RIM and provide information
and copies of records requested by RIM to assist RIM in investigating or determining
whether there has been a breach of all or part of this Section 5 or any other
provision of this Agreement and provide RIM with access to the premises and computers
where the Software is used; and
l. You will be responsible for obtaining (including paying the fees or charges
for) any necessary approvals, licenses or permits, including, but not limited
to exchange control approvals, and will take all actions as may be necessary
to ensure that full payment of all amounts owing to RIM will be made. RIM reserves
the right to promptly stop all supply of products and services to You if You
fail to obtain any necessary approvals, licenses or permits and to demand the
return of all products sold and delivered which are the subject of non-payment.
Subject to the terms and conditions herein, this Agreement hereby grants to You
a personal, revocable, non-exclusive non-transferable license to: (a) install
one copy of the BES Software on a single server residing on Your premises;
(b) use and permit Authorized Users to use the BES Software solely as part
of the BlackBerry Solution, including without limitation to wirelessly provision
Handheld Products up to the licensed number of Handheld Products; (c) use and
permit Authorized Users to use the Handheld Software on the Handheld Products
wirelessly provisioned using the BES Software solely as part of the BlackBerry
Solution and solely on the Handheld Product on which the Handheld Software
was originally installed. You may not use or allow the use of the Software
or access the Services other than for Your own internal or personal purposes
or if You permit such use, the personal purposes of Your Authorized Users.
You may not provision more Handheld Products or otherwise have more Authorized
Users than the number
of users for whom license fees have been paid to RIM to use the Software. You
and each of Your Authorized Users may download a single copy of the Documentation
from http://www.blackberry.com/legal/index.shtml RIM's website solely for Your
use in conjunction with the use of the Software as authorized hereunder. Nothing
herein obligates RIM to supply You with future upgrades or updates of the Software.
However, if RIM does provide You with any upgrades or updates to the Software,
either directly or through an authorized distributor, such updates or upgrades
shall be subject to the terms and conditions of this Agreement or such agreement,
if any, which accompanies such upgrades or updates, and may be subject to additional
payments. Except to the extent that RIM is expressly precluded by law from
prohibiting these activities, You may not print, copy, reproduce, distribute,
modify or in any other manner duplicate the Software, in whole or in part.
For the purposes of this provision "copy or reproduce" shall not include copying of statements and instructions of the Software during program
execution when used in accordance with and for the purposes described in the
Documentation or copies made of the Software in the course of making regular
backups of the computer or system on which the Software is installed, in accordance
with industry standard business practices. You may not copy any written materials
accompanying any portion of the Software unless specifically authorized in
writing to do so by RIM.
Neither You nor Your Authorized Users acquire any intellectual property or other
proprietary rights, including patents, designs, trademarks, copyright or rights
in any confidential information or trade-secrets, in or relating to the BlackBerry
Solution or any part thereof under this Agreement. Any rights and licenses
not expressly granted herein or in a separate agreement between RIM and You
are expressly reserved. The Software is only licensed to You as expressly set
out herein, and it and all Documentation is protected by Canadian, U.S. and
international copyright and patent laws pursuant to international conventions
and treaties. There are severe penalties, both civil and criminal, for intellectual
property infringement. You agree that nothing in this Agreement shall affect
any rights and recourse to any remedies that RIM may have under any applicable
law relating to the protection of RIM's intellectual property or other proprietary
rights.
You acknowledge that the Software may include encryption software that may be
controlled for import, export or purposes under the laws and regulations of
the country(ies) and/or territory(ies) in which the Software is used ("Applicable
Law"). In particular, You acknowledge that the Software is of Canadian origin,
is subject to Canadian laws and regulations, and may be subject to restrictions
on export or re-export to countries subject to Canadian embargoes (currently
Angola, Eritrea, Ethiopia, Iraq, Liberia, Myanmar (Burma), Rwanda and Sierra
Leone) or to persons or entities prohibited from receiving Canadian exports
(including, but not limited to, those involved with missile technology or nuclear,
chemical or biological weapons). You hereby represent that: (i) to the best
of Your knowledge You are eligible to receive RIM Products and Software under
Applicable Law; (ii) You will import, export, or re-export the RIM Products
and/or the Software to, or use the Software in, any country or territory only
in accordance
with Applicable Law; and (iii) You will ensure that Your Authorized Users and
any other persons use the RIM Products and/or the Software in accordance with
the foregoing restrictions. The Software is provided with RESTRICTED RIGHTS.
Use, duplication or disclosure by the U.S. Government is subject to restrictions
as set forth in DFARS 227.7202 or in FAR 52.227-19, or their successors, as
applicable. Contractor is Research In Motion Limited, 295 Phillip Street, Waterloo,
Ontario, Canada N2L 3W8. You hereby agree to indemnify RIM from any claims,
actions, liability or expenses (including reasonable lawyers' fees) resulting
from Your failure to act in accordance with the certifications and commitments
in this section.
The BES Software and Handheld Software include a level of encryption data security
for communications between the Handheld Products and the computer system on
which the BES Software is installed. You assume full responsibility for the
establishment of appropriate security measures to control access to the Handheld
Products and such computer system.
You acknowledge and agree that the Software was developed at considerable time
and expense by RIM and is confidential to and a trade-secret of RIM. You also
acknowledge that RIM has copyright over the Software. You agree that You and
Your Authorized Users will maintain the Software in strict confidence and will
not disclose or provide access thereto to any person except to any of Your
employees with a need for access to exercise the license rights conferred hereby.
You do not have the right to obtain or use any source code for the Software,
and You agree that, except to the extent that RIM is expressly precluded by
law from prohibiting You from doing so, You and Your Authorized Users will
not alter, modify, adapt, create derivative works, translate, deface, reverse
engineer, decompile or disassemble the Software, or attempt to perform any
of the foregoing prohibited activities, or otherwise derive or attempt to derive
the source code of any Software or portion thereof, and You further agree not
to permit, authorize,
acquiesce, encourage, allow or enable any other person to do so.
This Agreement shall be effective upon Your agreement to be bound by the terms
of this Agreement, (as manifested by the conduct described in the preamble
above) and shall end upon termination of this Agreement in accordance with
the provisions set out herein. Upon expiration or termination of this Agreement,
You will cease all use of the Software and destroy and/or permanently delete
all copies of the BES Software in Your possession.
If You or any of Your Authorized Users breach any provision of this Agreement
RIM may, in addition to all other rights and remedies provided by this Agreement
or by law, terminate this Agreement and any other license agreement between
You and RIM for any other portion of the BlackBerry Solution used by You or
Your Authorized Users with the Software by providing notice of termination.
You will be deemed to be in breach of this Agreement if: (i) You fail to comply
with or perform a term or condition herein; (ii) You or any Authorized User
interfere with RIM's customer service or business operations; (iii) You materially
contravene any other license agreement that You may have with RIM for any
other portion of the BlackBerry Solution used by You or Your Authorized Users
with the Software, including without limitation, the terms of any click-wrap
or shrink-wrap agreement that You have agreed to on RIM's website or otherwise;
or (iv) You violate any code of conduct or other guidelines by which You may
be governed in
conjunction with Your use of the BlackBerry Solution or any portion thereof.
In addition, RIM may terminate this Agreement and cease to provide the Services
if RIM is prevented from licensing or providing any portion of the BlackBerry
Solution or the Airtime Service Provider is prevented from providing the Airtime
Services by any law, regulation, requirement or ruling issued in any form
whatsoever by judicial or other governmental body, or if a notice from a government
agency or department indicates RIM is not permitted to license or provide
any portion of the BlackBerry Solution or that the Airtime Service Provider
is not permitted to provide the Airtime Services. Nothing herein shall be
construed to require RIM to seek a waiver of any law, rule, regulation or
restriction, or seek judicial review or appeal of any court order. RIM shall
have no liability to You arising from or related to the termination of this
Agreement as set out herein.
You shall defend, indemnify, and hold harmless RIM, RIM's affiliates and their
officers, directors, employees, suppliers, agents, successors, and assigns
(each a "RIM Indemnified Party") from any claims, damages, losses, costs or
expenses (including without limitation attorney fees) incurred by a RIM Indemnified
Party in connection with all claims, suits, judgments and causes of action
for: (i) infringement of patents or other intellectual property or proprietary
rights arising from combining with or using any device (other than a Handheld
Product), system or service in connection with the BlackBerry Solution or any
portion thereof; (ii) damages arising from You or any of Your Authorized Users
breaching Sections 5, 6, 7, 8, 10, or 16 herein; (iii) libel, slander, defamation
or infringement of copyright or other intellectual property or proprietary
right with respect to material transmitted by You or any of Your Authorized
Users using the BlackBerry Solution or any portion thereof; (iv) any injury,
death or property
damage arising from Your negligence or misconduct or the negligence or misconduct
of Your Authorized Users in connection with Your use or Your Authorized Users'
use of the BlackBerry Solution or any portion thereof (other than such damage
to person or property (excluding data) that directly arises from the use of
the Software or other RIM Products strictly in accordance with the Documentation
which specifically pertains to such version of Software and/or RIM Products);
or (v) claims made by third parties against RIM arising from or related to
Your use of the BlackBerry Solution or any portion thereof (other than such
claims that arise solely from the use of the Software and/or RIM Products strictly
in accordance with the Documentation which specifically pertains to such version
of Software and/or RIM Products). No remedy herein conferred upon RIM is intended
to be, nor shall it be construed to be, exclusive of any other remedy provided
herein or as allowed by law or in equity, but all such remedies shall be cumulative. In the event of the termination of this Agreement pursuant
to Section 12, You shall pay to RIM all attorney fees, collection fees, and
related expenses, expended or incurred by RIM in the enforcement of any right
or privilege hereunder (including, but not limited to, telephone, freight,
express and postal charges, expenses of paid investigators and reasonable compensation
for time of RIM's representatives).
a. Services. THE SERVICES ARE PROVIDED TO YOU 'AS IS' AND 'AS AVAILABLE' WITHOUT
WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND. RIM SHALL HAVE NO LIABILITY
TO YOU, OR ANY AUTHORIZED USER OR OTHER THIRD PARTY, CLAIMING BY OR THROUGH
YOU, FOR ANY ISSUE RELATING TO THE SERVICES OR THE AIRTIME SERVICES, INCLUDING
WITHOUT LIMITATION, THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH
SERVICES OR AIRTIME SERVICES. You acknowledge and agree that Handheld Products
acquired from one Airtime Service Provider may not operate on the network of
another Airtime Service Provider.
b. Products. You acknowledge and agree that no warranty is
provided hereunder with respect to any portion of the BlackBerry Solution
or any Handheld Product other than the express warranty in Section 14(c)
for the Software. Any warranty with respect to any such item, if any,
is contained in a separate agreement or warranty card accompanying that
item.
c. Software. If during the ninety (90) day period following delivery of the BES
Software to You (the "Warranty Period"), the Software as originally provided
to You is not capable of performing the functions described in the Documentation
when used as specified by RIM in the Documentation applicable to the specific
version of the Software in conjunction with other unaltered portions of the
BlackBerry Solution, RIM will, at its sole option and discretion either make
efforts to correct or provide You with a workaround for such problem (which
may be provided in a form at RIM's reasonable discretion, including in the
course of telephonic customer support provided to You, in a generally available
software fix release, or made available to You at our website) or provide You
with a refund for the one time fees paid by You for the applicable Software
if You cease to use the Software, and the media (if any) on which the Software
was provided to You and all packaging related thereto is returned to RIM in
accordance with Your normal warranty return mechanism (which may be through a RIM authorized
distributor) within the Warranty Period together with proof of purchase. Notwithstanding
anything to the contrary in this Agreement, the above obligation does not apply
to updates of the Software. Updates are provided 'as is' and without warranty
of any kind. Upgrades, for which You have paid additional license fees, shall
be subject to the warranty set out above for a period of ninety (90) days from
the date that the upgrade for any Software is delivered to You. RIM shall provide
support and maintenance for any updates or upgrades provided to You under the
terms of a support agreement with RIM. The foregoing is RIM's only obligation
and is Your sole and exclusive remedy for any defects, errors, or problems
You may experience related to the Software. The above obligation will not apply
if the failure of the Software to perform the functions described in the Documentation
is due to: (i) use of the Software in a manner inconsistent with any of the obligations set out in Sections 5 and 6 of this Agreement or in
a manner inconsistent with the instructions, including the safety instructions,
specified by RIM in the Documentation applicable to the specific version of
the Software; (ii) malfunction or other problem related to any hardware, software,
network, or communication system other than a component of the BlackBerry Solution;
or (iii) any external causes affecting the Software, including the media upon
which the Software is provided, such as accident, disaster, electrostatic discharge,
fire, flood, lightning, water or wind, or correction of errors attributable
to software other than the Software. The Software may include Sun Microsystems,
Inc. ("Sun") Java code. Any such code is provided to You by RIM "AS IS" and
at no charge with no representations, warranties or conditions either express
or implied, including without limitation any warranties or conditions of merchantability,
quality, performance, fitness for a particular purpose, durability, title or non-infringement. In no event shall either RIM or Sun be liable
to You for any damages whatsoever, including without limitation any direct,
indirect, consequential, punitive, exemplary damages, arising out of or in
relation to the provision of the Sun Java code as part of the Software, its
performance or lack of performance, even if RIM or Sun has been advised of
the possibility of such damages. You acknowledge that this limitation and exclusion
is reasonable given that this code is provided at no charge. This paragraph
14(c) sets out Your sole remedies in respect of the Software and any breach
of the warranty set out herein.
The only type of damages that can be recovered against RIM arising from or related
to this Agreement including without limitation in relation to the provision,
use, performance or non-performance of the Software or any portion thereof,
shall be Your direct foreseeable damages (the "Direct Damages"), caused solely
by a breach or breaches of this Agreement by RIM. Without expanding on the
specific remedies set out in Section 14 above in no event shall: (i) the aggregate
liability of RIM exceed the amount paid by You for the particular item(s) of
Software that gave rise to the claim or to which the claim relates; and (ii)
RIM shall only be liable for damages incurred during the period of such failure,
delay or nonperformance of the Software. RIM SHALL HAVE NO LIABILITY WHATSOEVER
TO YOU HEREUNDER FOR ANY DAMAGES HOWSOEVER ARISING UNDER OR RELATED TO THIS
AGREEMENT FOR ANY PORTION OF THE BLACKBERRY SOLUTION OR HANDHELD PRODUCTS,
OTHER THAN THE DAMAGES EXPRESSLY SET FORTH ABOVE RELATED TO THE SOFTWARE. FOR
THE AVOIDANCE
OF DOUBT, DIRECT DAMAGES DO NOT INCLUDE AND TO THE EXTENT PERMITTED BY LAW
RIM SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF BUSINESS, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR
RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION
WITH THE SOFTWARE, DOWNTIME COSTS, LOSS OF THE USE OF THE BLACKBERRY SOLUTION,
OR ANY ASSOCIATED PRODUCTS, COST OF SUBSTITUTE GOODS, FACILITIES, OR SERVICES,
COST OF CAPITAL, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS
AGREEMENT WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING
WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD
PARTY SOFTWARE, EVEN IF RIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
RIM DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE AND
ANY OTHER IMPLIED WARRANTY OR CONDITION ARISING BY STATUTE OR CUSTOM OR USAGE
OF TRADE. THE PARTIES ALSO AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS
ACT ("UCITA"), AS ENACTED IN ANY STATE SHALL NOT APPLY TO THIS AGREEMENT AND
TO THE MAXIMUM EXTENT PERMITTED BY LAW UCITA IS HEREBY EXCLUDED IN ITS ENTIRETY
FROM APPLICATION TO THIS AGREEMENT. The limited warranties set out in this
Agreement give You specific legal rights. You may also have other rights that
vary by State or Province. Some jurisdictions may not allow the exclusion or
limitation of implied warranties and conditions. To the extent permitted by
law, any implied warranties or conditions relating to the Software to the extent
they cannot be excluded as set out above are limited to ninety (90) days from
the date of delivery to You of the item of Software that gave rise to the claim
or to which the claim relates.
RIM SHALL BE LIABLE TO YOU AS EXPRESSLY PROVIDED IN THIS AGREEMENT BUT TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHALL HAVE NO OTHER OBLIGATION,
DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT OR OTHERWISE TO YOU OR YOUR
AUTHORIZED USERS INCLUDING ANY LIABILITY FOR NEGLIGENCE. THE LIMITATIONS, EXCLUSIONS
AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF
THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU OR YOUR AUTHORIZED USERS INCLUDING
BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR
ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR
THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED
HEREIN.
IN NO EVENT SHALL ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER,
INDEPENDENT CONTRACTOR, SUCCESSOR OR ASSIGN OF RIM OR ANY AFFILIATE OF RIM
HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT. NOTWITHSTANDING
SECTION 21(a), THESE PERSONS AND ENTITIES ARE INTENDED THIRD PARTY BENEFICIARIES
HEREOF.
By submitting personal information (including, without limitation, personal information
about employees and customers) to RIM pursuant to this Agreement, including
without limitation names, addresses and telephone numbers, You warrant that
You have obtained all consents necessary under applicable law to release such
personal information to RIM for the collection, use, processing, transmission
and disclosure of such information by RIM for the purposes of RIM internal
use, specifically the purposes for which such information has been requested,
such as billing requirements, any purposes for which RIM may reasonably require
such information in order to facilitate provision of the Services, and in accordance
with RIM's privacy policy, which may be viewed at http://www.blackberry.com/legal/index.shtml.
RIM reserves the right to modify its privacy policy from time to time in its
discretion. If information is disclosed to an Airtime Service Provider to facilitate
the provision of the BlackBerry Solution, or related products
or services (including the Services) to You, the Airtime Service Provider's
privacy policy will be applicable. You agree to inform all individuals whose
personal information you provide to RIM that they may have rights to access
and correct their personal information under applicable laws and regulations.
RIM may assign this Agreement without notice to You. You shall not assign this
Agreement without the prior written consent of RIM (such consent may be withheld
or conditioned at RIM's discretion) and any assignment without RIM's prior
written consent shall be null and void and of no effect. RIM may perform all
obligations to be performed under this Agreement directly or may have some
or all obligations performed by its contractor or subcontractors or affiliates.
Except as otherwise provided in this Agreement, all notices or other communications
hereunder shall be deemed to have been duly given when made in writing and
delivered in person, by courier or deposited in the mail, postage prepaid,
registered mail, return receipt requested, and addressed to You at the billing
address supplied to RIM by You, and addressed to Research In Motion Limited,
295 Phillip Street, Waterloo, Ontario, Canada, N2L 3W8, with a copy (which
shall not constitute notice) to RIM's Vice President, Legal at the same address.
In addition to the foregoing, RIM may, at its option, give You any notice under
this Agreement by email. Notice to You by email shall be deemed to have been
duly given when transmitted to an email address furnished by You to RIM.
Notwithstanding any other provision of this Agreement, neither Party shall be
deemed in default of this Agreement for failure to fulfill its obligations
when due to causes beyond its reasonable control. This provision shall not
be construed as excusing nonperformance of any obligation by either Party to
make payment to the other Party under this Agreement.
This Agreement constitutes the entire agreement between the Parties hereto with
respect to the Software and the use thereof, and cancels and supersedes any
prior understandings and agreements between the Parties hereto with respect
thereto. There are no provisions, representations, undertakings, agreements,
or collateral agreements between the Parties other than as set out herein in
this Agreement. Further, You acknowledge that no statements or representations
made by or on behalf of RIM have been relied upon by You in agreeing to enter
into this Agreement.
a. No Third Party Beneficiaries. Except as otherwise specifically stated in this
Agreement, the provisions herein are for the benefit of the Parties and not for
any other person or entity.
b. Waivers of Default. Waiver by either Party of any default by the other Party
shall not be deemed a continuing waiver of such default or a waiver of any other
default.
c. Survival. The terms, conditions and warranties contained in this Agreement
that by their sense and context are intended to survive the performance hereof
by either or both Parties shall so survive the completion of performance, cancellation
or termination of this Agreement. Without limiting the generality of the foregoing,
the terms and conditions in Sections 5, 7, 8, 10, and 16 shall so survive.
d. Governing Law and Dispute Resolution. If You reside in Canada and the BES
Software is shipped or delivered to You in any format in Canada, this Agreement
is to be construed under the laws of the Province of Ontario. Otherwise, this
Agreement is to be construed under the laws of the State of New York, excluding
any body of law governing conflicts of law. The Parties agree that the United
Nations Convention on Contracts for the International Sale of Goods is hereby
excluded in its entirety from application to this Agreement. Any disagreement
or dispute arising out of or relating to this Agreement, or the breach thereof
which the Parties are unable to resolve after good faith negotiations, shall
be submitted first to the upper management level of the Parties. The Parties,
through their upper management level representatives shall meet within thirty
(30) days of the dispute being referred to them and if the Parties are unable
to resolve such disagreement or dispute within thirty (30) days of meeting, such
disagreement or dispute shall be settled by final and binding arbitration to be conducted
in Ontario, Canada in accordance with the Commercial Rules of the American Arbitration
Association. Each of the Parties shall appoint one arbitrator, and the two arbitrators
shall jointly appoint a third arbitrator. Each Party shall bear one-half of the
costs associated with the arbitration proceedings. No dispute between the Parties,
or involving any person but You, may be joined or combined together, without
the prior written consent of RIM. Judgment upon the award rendered by the three
arbitrators may be entered in any Court having jurisdiction thereof. Notwithstanding
the foregoing, RIM has the right to institute legal or equitable proceedings
in a court of law for claims or disputes regarding: (i) amounts owed by You to
RIM in connection with Your license for the Software if applicable; and (ii)
Your violation or threatened violation of Sections 5, 6, 7, 8, and 10 of this
Agreement. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is
to be resolved in a court of law, such dispute shall not be resolved by jury
trial.
e. Severability. If a provision of this Agreement is held to be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather (unless a failure of consideration would result
therefrom) the entire Agreement shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and obligations
of each Party shall be construed and enforced accordingly.
f. Language. It is the express will of the Parties that this Agreement and all
related documents be drawn up in English. C'est la volonté expresse des Parties
que la présente convention ainsi que les documents qui s'y rattachent soient
rédigés en anglais.
If there is any inconsistency between this Agreement and any software license
or end user agreement provided in the packaging of the Software, the provisions
of this Agreement shall apply to the extent of the inconsistency. If there
is any inconsistency between this Agreement and any software license or end
user agreement provided in connection with any upgrades or updates to the Software,
the provisions of such other license or end user agreements shall apply, to
the extent of the inconsistency.
You will, at Your expense, obtain and maintain the governmental authorizations,
licenses, registrations and filings that may be required under the laws of
Your jurisdiction to execute or perform this Agreement or any related license
agreements. In the event any governmental authorization, license, registration
and/or filing is required, You will notify RIM of such requirement and will
only proceed with any governmental authorization, license, registration and/or
filing process upon RIM's express written consent. You will otherwise comply
with all laws, regulations and other legal requirements within Your jurisdiction
that apply to this Agreement or any related license agreements.
