Terms and Conditions of Sale
- SCOPE. These Terms and Conditions of Sale, along with the terms and conditions applicable to the use of the specific good and/or the provision of the applicable service purchased, referred to herein as the BlackBerry Solution, (this “Agreement”) shall apply to all orders accepted by BlackBerry for the BlackBerry Solution unless expressly modified by BlackBerry and the purchaser (the “Customer”) in a written agreement signed by BlackBerry and the Customer (each a “Party” and together the “Parties”). The terms and conditions applicable to the use of the specific good and/or the provision of the applicable service purchased can be viewed at www.blackberry.com/legal. BlackBerry may offer for sale third party goods and services which for the purposes of these Terms and Conditions of Sale only shall be considered part of the BlackBerry Solution. BlackBerry is defined as the specific BlackBerry entity with which your order is placed.
- TAXES AND FEES. All fees are exclusive of any Taxes. Customer shall be responsible for and shall pay all taxes due under or in relation to this Agreement, including, but not limited to, withholding taxes, charges, duties, levies or other applicable amounts (“Taxes”). Amounts payable by Customer to BlackBerry or an authorized reseller of the BlackBerry Solution, as applicable, under this Agreement are exclusive of any Taxes. If Customer is required to withhold any amounts (including, without limitation, Taxes) from payments (“Withholdings”), then the amount payable by Customer shall be increased by the amounts of such Withholdings. Customer shall promptly furnish BlackBerry with all official receipts evidencing payment of Taxes due under or in relation to this Agreement.
- PAYMENT AND INVOICING.
a. Payment. Unless otherwise agreed by BlackBerry, all payments must be made in the currency used by the BlackBerry entity with which Customer has placed its Order and in advance, or if approved by Blackberry, within net thirty (30) days from the date of the invoice. Any sum not paid by Customer when due will bear interest from the due date until paid at a rate of: (i) ten percent (10%) per annum; or (ii) the maximum rate permitted by law, whichever is less.
b. Invoicing. Customer may not withhold payment of any invoice on the basis of any dispute, including dissatisfaction with the BlackBerry Solution, other than on the basis of a clear error on the face of the invoice including, for example, a calculation error or a quantity error. Payment by Customer shall not preclude Customer from questioning any charges that Customer believes to be improper or incorrect, within a reasonable period of time.
- LIMITED WARRANTY. BlackBerry’s warranty obligations are as stated in the applicable goods and services terms and conditions. For example, BlackBerry’s warranty relating to BlackBerry Software is as described in the BlackBerry Solution License Agreement which can be viewed at www.blackberry.com/legal. Any modifications to BlackBerry’s warranty obligations unique to Customer’s purchase will be stated by BlackBerry in the applicable sales transaction documents.
- NO RETURNS. Unless otherwise provided specifically in the applicable goods or service terms, no returns shall be accepted and no refunds or credits will be provided.
- INTELLECTUAL PROPERTY RIGHTS. All software and firmware of any kind and all manuals and documentation (collectively, “BlackBerry Software”) are proprietary to BlackBerry (or its suppliers) and are subject to intellectual property laws. As between the Parties, Customer agrees that BlackBerry retains ownership of all right, title and interest in all aspects of the BlackBerry Solution. Customer and its affiliates and sub-contractors agree not to reverse engineer any aspect of the BlackBerry Solution supplied under or in relation to this Agreement. Customer’s only rights with respect to any BlackBerry Software shall be as provided under the terms of the BlackBerry Solution License Agreement.
- APPLICABLE LAW AND JURISDICTION. This Agreement will be governed and construed by the applicable laws described below and 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 as follows: (a) where Customer is in Canada, or any other destinations not described in the following sub-parts (b), (c) and (d), the laws of the Province of Ontario, Canada and the courts of Toronto, Ontario, Canada; (b) where Customer is in the United States or U.S. territories, the laws of the State of New York, United States and the courts of New York City; (c) where Customer is in the UK, European Union, Middle East or Africa region, the laws of England and Wales and the courts of England and Wales; and, (d) where Customer is in the Asia-Pacific region, the laws of the Republic of Singapore and the courts of Singapore. IN ADDITION, 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 WITH REGARD TO THE INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW:
a. BLACKBERRY SHALL NOT BE LIABLE FOR: (I) ANY CLAIMS RELATED TO GOODS OR SERVICES PROPRIETARY TO A THIRD PARTY; OR, (II) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA, LOSS OF PROFITS OR REVENUE.
b. IN NO EVENT SHALL BLACKBERRY BE LIABLE TO CUSTOMER, FOR ANY DAMAGES OF ANY KIND IN EXCESS OF THE AMOUNTS RECEIVED BY BLACKBERRY FROM CUSTOMER FOR THE APPLICABLE GOODS OR SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
c. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY LIABILITY OR ANY OTHER THEORY OF LIABILITY; (II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO BLACKBERRY; AND (III) TO BLACKBERRY, ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS, SUCCESSORS AND ASSIGNS.
- DELIVERY TERMS APPLICABLE TO HARDWARE, ACCESSORIES AND/OR OTHER PHYSICAL GOODS. Customer acknowledges and agrees that: (a) any shipment dates specified are estimates only and are subject to change; (b) any delay in Customer providing BlackBerry with any required pre-payment or required information may impact BlackBerry’s ability to ship the physical goods by a particular date; and (c) Customer shall validate each shipment against attached packing slips for accuracy of items and quantities promptly upon receipt and notify BlackBerry immediately of any discrepancy between the attached packing slip and the shipment upon discovery of any nonconformity. Unless BlackBerry has received notice of any nonconformity from Customer within ten (10) business days of the shipment date, Customer shall be deemed to have accepted the shipment. Delivery shall be deemed complete and risk of loss shall pass to Customer at BlackBerry’s point of shipment. All shipping costs including, without limitation, insurance, brokerage, duties, freight are extra and are the responsibility of the Customer.
a. BlackBerry and Customer both agree that their obligations under this Agreement shall be performed in accordance with all applicable federal, state, provincial and local laws, rules and regulations.
b. BlackBerry shall in no event be liable for any failure or delay in performing its obligations under this Agreement, or for any loss or damage resulting therefrom, due to causes beyond its control, including but not limited to riots, suppliers, work stoppages, fires, or natural catastrophes.
c. BlackBerry may assign this Agreement and Customer may assign this Agreement with BlackBerry’s consent.
d. To the extent any provision of this Agreement is determined to be invalid or unenforceable by a competent authority in any jurisdiction, then such determination will not affect the legality, validity or enforceability of the remaining parts of the Agreement.
e. The provisions of this Agreement are personal to the respective Parties and are not intended to confer any rights of enforcement on any third party.
f. Nothing in this agreement shall be deemed to create an agency or employment relationship between the Parties.