BlackBerry Spark Beta Software Development Kit
Development License Agreement
VERSION DATED: September 30, 2020
These SDK license terms and conditions are an agreement (“Agreement”) between BlackBerry Limited (“BlackBerry”) and the company or organization that you represent ( “you”). Please read them. They apply to the Software Development Kit (“SDK”) named above and defined below.
BY CLICKING TO ACCEPT THIS AGREEMENT BELOW OR BY COPYING, DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU: (I) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY OR ORGANIZATION YOU REPRESENT; AND (II) AGREE ON BEHALF OF THE COMPANY OR ORGANIZATION YOU REPRESENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SDK AND DO NOT COPY, DOWNLOAD, INSTALL, ACTIVATE OR USE ANY PORTION OF THE SDK.
- "Affiliate" means any entity controlling, controlled by, or under common control with BlackBerry. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or exercise a controlling influence on the management of such entity, whether through the ownership of voting securities, by contract or otherwise.
- “Application” means one or more software application programs that are developed by you under the terms and conditions of this Agreement that use and/or incorporate the SDK (or portion thereof) to access the BlackBerry Service, including bug fixes, updates and upgrades of such software application program(s).
- “BlackBerry Service” means BlackBerry’s proprietary mobile threat protection and detection cloud services made available via BlackBerry’s proprietary software (in object code form only).
- “Derivative Work” means a work that is based upon one or more pre-existing works, such as a revision, modification, correction, port, translation, derivation, abridgement, addition, compilation, enhancement, improvement, extension, condensation, expansion, or any other form in which such pre-existing works or any portion thereof may be recast, transformed, or adapted.
- “End Users” means individuals who are granted the right to use the Application from you under the terms of an end-user license agreement for your internal business purposes only and not for any other use.
- “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including software licensed or distributed under any of the following or similar licenses or distribution models: (a) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the BSD License; and (f) the Apache License.
- “Party” means BlackBerry or you individually and “Parties” means BlackBerry and you collectively.
- “SDK” means: (a) the beta version of the BlackBerry Spark SDK application programming interfaces (APIs) and client libraries (in object code form only), (b) accompanying documentation provided by BlackBerry, and (c) any bug fixes, updates, upgrades or modified versions of or to the foregoing which may be provided by BlackBerry at its sole discretion. “SDK” specifically excludes Open Source Software and other third party software.
B. Limited License Grant:
- Subject to your compliance with the terms and conditions of this Agreement, BlackBerry grants to you a limited, non-exclusive, royalty-free, non-transferable, non-sublicensable, revocable license during the term of this Agreement:
- to internally use the SDK solely in the manner described in BlackBerry’s published documentation for the SDK and solely for the purpose of developing and testing the Application internally within your organization and not for purposes of any distribution to any entity or third party, commercial or otherwise; and
- to internally distribute the Application to your End Users for internal use solely in association with the BlackBerry Service.
- This Agreement does not give you and your End Users any license or right to use the BlackBerry Service and associated BlackBerry server software for any purpose and you are solely responsible for arranging at your own expense the necessary applicable BlackBerry licenses and agreements. BlackBerry reserves the right to charge a fee and require you to agree to additional terms if BlackBerry introduces new SDK features and functionalities.
C. Records and Reconciliation: You will, during the term of this Agreement and for one (1) year following its termination, create and maintain records regarding your use and distribution of the SDK, which records shall include every installation and use of the SDK and the distribution of any credentials for the SDK under this Agreement (“Records”). At BlackBerry’s request, you will promptly provide such Records to BlackBerry for the purpose of BlackBerry verifying compliance with this Agreement. If there is any inconsistency between BlackBerry’s records regarding your installation or use of the SDK and the Records, BlackBerry’s records shall be deemed to be accurate (unless BlackBerry’s records are definitively proven by you to be incorrect). If you fail to create, maintain or deliver Records as required under this Section, or if there is any dispute as to the accuracy of the Records, BlackBerry may audit your use of the SDK (e.g. by reviewing copies of the applicable server or device logs files) at any location in which it is or has been installed or otherwise used, subject to your reasonable policies with respect to security and confidentiality.
D. Support: BlackBerry does not supply, and you and your End Users are not entitled to, any technical support or warranty. BlackBerry may extend, enhance or otherwise modify the SDK provided hereunder at any time without notice, but is under no obligation to do so. If updates are made available to you by BlackBerry, the terms and conditions of this Agreement will govern such updates, unless the update is accompanied by a separate license, in which case the terms and conditions of that license will govern. You acknowledge that BlackBerry has no express or implied obligation to make available any updates to the SDK to anyone in the future. You acknowledge and agree that you are solely responsible for supporting your End Users with regard to any issues arising from or related to the Application.
E. Open Source Software: To the extent that any license to any Open Source Software requires that BlackBerry provide you with the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to you in this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. You acknowledge and agree that unless otherwise required by the applicable Open Source Software license, each Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any. If your Application includes any Open Source Software, you agree to comply with all applicable Open Source Software licensing terms. You also agree you will not use any Open Source Software in the development of your Application, or incorporate or combine any Open Source Software with the SDK (or any portion thereof), in such a way that would cause the non-Open Source Software portions of the SDK to be subject to any Open Source Software licensing terms or obligations.
F. Application, BlackBerry Service & BlackBerry Service SDK Restrictions:
- You shall not (and shall not allow your employees and independent contractors or any third party to):
- modify or create Derivative Works of the SDK (or any portion thereof);
- reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the SDK or the BlackBery Service (or any portion thereof), or permit, acquiesce, authorize or encourage any other party to do the same. For the purposes of this Agreement, “reverse engineer” includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code) or services or any method or process of obtaining or converting any information, data or software from one form into a human-readable form;
- copy the SDK (or any portion thereof) except as reasonably necessary for back-up purposes;
- remove or alter any product identification, trademark, copyright or other notices embedded within or appearing within or on the SDK;
- provide, lease, lend, sublicense, use for timesharing or service bureau purposes or otherwise use or distribute or allow the use or distribution of the SDK (or any portion thereof) for the benefit of any third party (including by way of multiplexing or pooling);
- exploit the BlackBerry Service in any unauthorized way whatsoever, including by trespass or burdening network capacity;
- use or permit any third party to use the Application with any server, software or service other than the BlackBerry Service; or
- develop any Application or make any product, software or service available through any Application which is similar to the BlackBerry Service (or any portion thereof) or has as its primary functionality of mobile threat protection and detection cloud services or any other functionality offered by any products, software or services of BlackBerry or any of its Affiliates.
- Application Requirements. You acknowledge and agree that:
- You are solely responsible for obtaining all required license rights to any third party software development kits or other intellectually property rights not expressly licensed or included herein;
- You are solely responsible for ensuring that the Application complies with all applicable laws, rules and regulations and does not violate any intellectual property rights of BlackBerry, its Affiliates or any third party;
- Your Application end-user license agreement with End Users shall protect the SDK application programming interfaces (APIs) and client libraries at least as much as this Agreement;
- You will ensure that the Application will be compatible with current and future versions of the BlackBerry Service server software;
- The Application must not contain any malware, malicious or harmful code, program, or other internal component (e.g. computer viruses, trojan horses, “backdoors”) which could damage, destroy, interfere with, disrupt or adversely affect the SDK, the BlackBerry Service, or other software, firmware, hardware, data, systems, services or networks;
- You shall ensure that each copy of the Application that uses or incorporates the SDK (or portion thereof) shall display the following copyright statement: “Portions of this software are © 2020 BlackBerry Limited. All rights reserved.”; and
- BlackBerry reserves the right to: (A) limit or terminate the BlackBerry Service for any Application which, in BlackBerry’s reasonable judgment, exceeds BlackBerry’s acceptable usage; or (B) charge for the BlackBerry Service for any Application which exceeds BlackBerry’s acceptable usage. BlackBerry also reserves the right to reject any Application which has, as its primary functionality, mobile threat protection and detection cloud services or other functionality offered by products, software or services of BlackBerry.
- YOU ACKNOWLEDGE AND AGREE THAT THE SDK IS A GENERAL PURPOSE DEVELOPMENT PLATFORM AND THAT THE SDK MUST NOT BE RELIED UPON FOR THE TRANSMISSION OF DATA RELATING TO EMERGENCY, MISSION CRITICAL OR LIFE THREATENING SITUATIONS OR FOR USE REQUIRING FAILSAFE PERFORMANCE AND OR WHERE FAILURE COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE.
G. No Warranty: THE SDK AND BLACKBERRY SERVICE ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLACKBERRY DISCLAIMS ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SDK AND BLACKBERRY SERVICE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE NON-INFRINGEMENT, SATISFACTORY QUALITY AND TITLE. BLACKBERRY DOES NOT REPRESENT, WARRANT, GUARANTEE OR PROVIDE ANY OTHER SIMILAR ASSURANCE WHATSOEVER OF: (I) UNINTERRUPTED OR ERROR-FREE USE OR OPERATION OF THE SDK OR BLACKBERRY SERVICE; (II) THE SDK OR BLACKBERRY SERVICE SECURITY, INCLUDING THAT ALL THREATS, VULNERABILITIES, ATTACKS OR MALWARE WILL BE DISCOVERED, REPORTED OR REMEDIED; OR (III) YOUR (INCLUDING YOUR END USERS’) DATA , SYSTEMS OR NETWORKS SHALL BE FREE FROM LOSS OR CORRUPTION.
H. Limitation Of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY:
- (A) BLACKBERRY, ITS AFFILIATES AND THEIR SUPPLIERS EXCLUDE AND DISCLAIM ALL LIABILITY (i) FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, (ii) FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST INCOME OR REVENUES, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, COST OF SUBSTITUTE SOFTWARE OR SERVICES, OR OTHER ECONOMIC LOSS, AND (iii) DURING ANY DEVELOPMENT, BETA OR TESTING PERIOD;
- (B) UNDER NO CIRCUMSTANCES WILL BLACKBERRY ITS AFFILIATES, AND THEIR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR AN AMOUNT GREATER THAN THE total fees paid by YOU HEREUNDER TO BLACKBERRY DURING THE SIXTY (60) DAY PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE; AND
- (c) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR DEATH OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
I. Indemnification: You shall defend, indemnify and hold harmless BlackBerry and its Affiliates and their respective officers, directors, suppliers, contractors and agents (“BlackBerry Indemnities”) from and against all claims, actions, suits and causes of action (collectively “Claims”), liabilities, damages, losses, costs and expenses (including reasonable legal fees and expenses) arising out of or relating to: (i) any allegation that any Application or its use infringes a third party’s patent, trade secret, copyright or other intellectual property right; (ii) any breach of this Agreement by you or any of your employees or independent contractors; or (iii) the use of any Application. BlackBerry will notify you in writing of any Claim and BlackBerry may at its option and expense participate in the defence of the Claim or its settlement.
J. Confidentiality: You acknowledge and agree that the SDK (including information accessible by means of the SDK) and the BlackBerry Service were developed at considerable time and expense by BlackBerry or its Affilate and contain valuable trade secrets and confidential information of BlackBerry or its Affilate. You agree to maintain the SDK and BlackBerry Service (including information accessible by means of the SDK) in strict confidence. You agree that you shall not: (i) disclose or provide access to the SDK or BlackBerry Service to any third party, except to your employees and independent contractors with a need for access to exercise the licenses granted herein and who are under legally enforceable confidentiality obligations no less restrictive than those set out herein; and (ii) use or access the SDK or BlackBerry Servicee for any purpose not expressly authorized in this Agreement, or permit or authorize any other person or entity to do so.
L. Export, Restricted Rights: The SDK may include cryptographic technology, data or information and may be subject to export and import control laws and regulations, including the U.S. Export Administration Act. You agree to comply with all applicable laws, ordinances, codes, regulations and policies applicable to your receipt or you and your your employees’ or independent contractors’ use of the SDK. You agree that the SDK will not be exported, imported, used, transferred, or re-exported except in compliance with the applicable laws and regulations of the relevant government authorities. You represent that: (a) to the best of your knowledge, you are eligible to receive the SDK under applicable law; and (b) you will ensure that your receipt and use of the SDK is in accordance with the restrictions in this Section L.
M. Intellectual Property: The SDK and BlackBerry Service are protected by U.S. and international copyrights, patents, trade secrets and other intellectual property rights. BlackBerry retains all rights, title and interest, including intellectual property rights, in and to the SDK and the BlackBerry Service. This Agreement does not transfer or assign any title or ownership in the SDK or the BlackBerry Service or any intellectual property rights therein or thereto and you irrevocably waive and release all such claims to title, ownership and intellectual property rights. You agree that you shall not assert or authorize any person or entity to assert a claim against BlackBerry, any of its Affiliates, or any of their respective licensees that the SDK (or any portion thereof), any Derivative Work thereof, or the BlackBerry Service (or any portion thereof), infringes your patent rights. This obligation shall not prevent you from asserting a defensive patent claim in relation to a third party claim against you that the SDK (or any portion thereof) or the BlackBerry Service (or any portion thereof) infringes such party’s patent rights and refuses to withdraw such claim within fourteen (14) days of receiving notice from you regarding this provision. BlackBerry reserves all rights and licenses not expressly granted to you in this Agreement and nothing herein shall be construed as giving rise to any other license or right, by implication, estoppel, statute or otherwise. If you develop any Derivative Work to the SDK or any portion thereof (“Improper Derivative Work”), in addition to any remedies available to BlackBerry for breach of this Agreement, BlackBerry shall own all such Improper Derivative Works and all intellectual property rights therein and thereto, and you will promptly and completely disclose to BlackBerry the Improper Derivative Work, and take all steps necessary to confirm or perfect BlackBerry's ownership of same.
N. Feedback: You may, but are not obligated to, provide BlackBerry or any of its Affiliates with suggestions, comments and feedback, in oral or written form, about the SDK or the BlackBerry Service (“BlackBerry Feedback”), and in connection with providing such BlackBerry Feedback, you hereby assign to BlackBerry and its Affiliates all of your right, title and interest thereto. You shall and shall ensure that your employees and independent contractors sign further documents and do such other acts as reasonably requested by BlackBerry to confirm BlackBerry's ownership of BlackBerry Feedback and to enable BlackBerry to register or protect any associated intellectual property rights or confidential information.
O. Government End Users: The SDK is a “Commercial Item”, as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users only: (i) as Commercial Items and (ii) with those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
P. Term and Termination; Survival:
- This term of this Agreement commences on your acceptance of the Agreement and expires on the last date of the beta period as determined by BlackBerry, which may be extended or terminated at any time at BlackBerry’s sole discretion. Either Party may terminate this Agreement without cause by giving the other Party at least ten (10) days’ notice in writing. BlackBerry may terminate this Agreement on written notice to you if you or any of your employees or independent contractors breach this Agreement or any other agreement between you and BlackBerry or any of its Affiliates and fail to cure the breach within ten (10) days following receipt of such written notice. Notwithstanding the foregoing, this Agreement may be terminated immediately by BlackBerry in the event of breach by you or any of your employees or independent contractors of Section B (Limited License Grant), Section E (Open Source Software), Section F (Application, BlackBerry Service & BlackBerry Service SDK Restrictions), Section J (Confidentiality), Section L (Export, Restricted Rights) or Section M (Intellectual Property) of this Agreement.
- Upon the expiry or earlier termination of this Agreement and without further notice to you, the licenses provided in Section B of this Agreement to use the SDK and your right to access the BlackBerry Service shall immediately terminate. You shall immediately cease all use of the SDK and BlackBerry Service and promptly destroy or delete all copies of the SDK in your possession or control and provide proof of same to BlackBerry if requested. You shall also immediately cease distribution of all software applications that were developed or distributed in breach of this Agreement upon delivery of notice from BlackBerry requiring same. BlackBerry shall not have any liability to you arising from or in conncetion with the termination of this Agreement or the licenses provided provided in Section B of this Agreement for any reason. No remedy herein conferred upon BlackBerry 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 this Section P for cause, you shall pay to BlackBerry all legal fees and related expenses expended or incurred by BlackBerry in the enforcement of any right or privilege hereunder.
- The following Sections of this Agreement will survive its termination, howsoever occurring: A, C, E - N inclusive, P and Q.
- Assignment. You may not assign this Agreement or any of your rights hereunder, by operation of law or otherwise, without BlackBerry’s prior written consent, which consent shall be subject to BlackBerry’s sole discretion. Any attempted assignment in breach of this provision will be void. This Agreement shall be binding upon the Parties and BlackBerry’s successors and assigns.
- Notices. Except as otherwise provided in this Agreement, any notice provided by BlackBerry to you hereunder shall be in writing and delivered electronically to the last e-mail address provided by you to BlackBerry. Electronic notice to you shall be deemed to have been duly given on the date that it was sent. Alternatively, BlackBerry may post notices to you on the BlackBerry Developer Portal. No notice shall be binding on BlackBerry unless delivered by courier to BlackBerry, addressed to BlackBerry's Legal Department at 2200 University Avenue East, Waterloo, Ontario Canada, N2K 0A7.
- Governing Law; Equitable Relief; Attorneys’ Fees. This Agreement shall be governed and enforced in accordance with the laws of the state of New York, excluding its choice of law provisions. The Parties agree that damages will be an inadequate remedy in the case of your or your employees’ or independent contractors’ breach of certain terms of this Agreement, and that BlackBerry may therefore seek equitable relief in addition to any other remedies it may have for such breach without the requirement of posting a bond. You irrevocably consent and attorn to the jurisdiction of the courts located in New York, New York for any claims arising from or related to this Agreement. The Parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement.
- Modifications. BlackBerry reserves the right to modify this Agreement, including to reflect changes in law or business practices. Notwithstanding anything to the contrary herein, BlackBerry shall notify you of the change by a reasonable means of notice, including posting the revised Agreement at the BlackBerry Developer Portal. You should regularly visit the portal to review the most current version of this Agreement. Changes to this Agreement will be effective as of the date set forth on the revised Agreement and you agree that your continued use of the SDK after the changes become effective shall constitute your acceptance of the revised Agreement. If there is any inconsistency between this Agreement and any documentation used with the SDK, the provisions of this Agreement shall apply to the extent of the inconsistency.
- Miscellaneous. Nothing in this Agreement is intended to create a partnership, franchise, joint venture or agency relationship between the Parties. Neither Party shall use the name, trade name or any trademark of the other Party in any advertising, promotion, public relations or media release relating to this Agreement without the prior written consent of the other Party. This Agreement and any documents incorporated herein by reference constitute the complete agreement between the Parties concerning its subject matter and supersede all prior or contemporaneous agreements, representations or understandings. There are no intended third party beneficiaries of this Agreement, except for BlackBerry’s Affiliates and suppliers. If any provision of this Agreement is held to be in violation of applicable law or unenforceable in any court of competent and appropriate jurisdiction, then such provision will be limited if possible and only thereafter waived to the extent necessary for this Agreement to be otherwise enforceable in such jurisdiction. Any ambiguities herein will be clarified in an equitable manner without regard to authorship. When used herein, “include” and “including” are not limiting. The provisions of this Agreement may only be waived or modified in a writing signed by a representative of each Party with authority to bind it.