THESE TERMS AND CONDITIONS (THE "TERMS AND CONDITIONS") FORM A LEGAL AGREEMENT BETWEEN YOU AND BLACKBERRY LIMITED, HAVING ITS REGISTERED OFFICE AT 2200 UNIVERSITY AVENUE EAST, WATERLOO, ONTARIO, CANADA N2K 0A7 ("BlackBerry").
BY CLICKING ON THE "SUBMIT" BUTTON YOU INDICATE THAT: (A) YOU AGREE ON YOUR OWN BEHALF AND ON BEHALF OF EACH ENTITY FOR WHOSE BENEFIT YOU ACT (TOGETHER "YOU" OR "YOUR") TO THE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS (AS DEFINED BELOW IN SECTION 2); (B) YOU MAY NOT USE THE BENEFITS (AS HEREINAFTER DEFINED) WITHOUT AGREEING TO BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS; AND (C) IF YOU ARE RESIDENT IN A JURISDICTION OUTSIDE OF SOUTH AND CENTRAL AMERICA THAT YOU ARE NOT A CONSUMER AS DEFINED BY LEGISLATION IN YOUR JURISDICTION. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TECHNICAL SUPPORT TERMS, PLEASE CONTACT BLACKBERRY AT BEPP@BLACKBERRY.COM. IF, PRIOR TO USING THE BENEFITS: (A) YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TECHNICAL SUPPORT TERMS, DO NOT CLICK "SUBMIT"; OR (B) IF YOU HAVE ALREADY CLICKED "SUBMIT", PLEASE CONTACT BLACKBERRYAT LEGAL@BLACKBERRY.COM TO INFORM BLACKBERRY THAT YOU WISH TO TERMINATE THE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS AND WILL NOT BE USING THE BENEFITS. BLACKBERRY AND YOU ARE EACH A "PARTY" AND COLLECTIVELY THE "PARTIES" TO THE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS.
Thank you for Your interest in the BlackBerry Enterprise Partner Program (the "Program"). Following the processing of your application for membership in the BlackBerry Enterprise Partner Program, if accepted, you will be notified as to which level of the Program you have successfully qualified. Following your acceptance into the Program, you will have access to the benefits (the "Benefits") set-out in the BlackBerry Enterprise Partner Program Guide (the "Program Guide"). You acknowledge that certain Benefits may be subject to additional terms and conditions which must be agreed to by You in order for You to be able to access such Benefits. In the event of a conflict between such additional terms and conditions and this Agreement, such additional terms and conditions will prevail to the extent of the conflict.
BlackBerry and/or BlackBerry's affiliates will provide You with the Benefits in accordance with BlackBerry's current Program Guide. These Terms and Conditions, combined with the Program Guide are collectively referred to herein as the "BlackBerry Enterprise Partner Program Terms". BlackBerry and/or BlackBerry's affiliates shall provide the Benefits as an independent contractor, and nothing contained in these Terms and Conditions shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the Parties. Without limiting the foregoing, and for the purposes of clarification, any use of the word "Partner" in or in relation to the BlackBerry Enterprise Partner Program Terms is intended to denote the relationship of the Parties in a marketing sense, and is not intended to convey legal meaning or to create a legal relationship. These Terms and Conditions take priority over the Program Guide and replace and take priority over all prior communications and documents both written and oral related to the Benefits. These Terms and Conditions may only be amended in writing signed by both You and BlackBerry. Benefits will be provided by BlackBerry and/or BlackBerry's affiliates in English except as otherwise specifically noted otherwise in the Program Guide.
You agree that BlackBerry may in its sole discretion expand, reduce, and/or change the scope or contents of any aspect of the Benefits, in whole or in part including but not limited to program tiers, program benefits, fees, or anything described in the Program Guide. Notice of such changes shall be provided to You by posting the changes on the BlackBerry Enterprise Partner Program Website. If You do not accept such changes, You may terminate these BlackBerry Enterprise Partner Program Terms at any time within sixty (60) days following notice by BlackBerry, by delivering written notice to BlackBerry terminating these BlackBerry Enterprise Partner Program Terms and stating the reason thereof. If You do not deliver a notice to BlackBerry terminating these BlackBerry Enterprise Partner Program Terms within the sixty (60) day time period, You shall be deemed to have accepted the change. You acknowledge that BlackBerry shall bear no responsibility or liability whatsoever for any claims, actions, damages, losses or expenses of any kind whatsoever asserted caused directly or indirectly as a result of BlackBerry's actions under this Section 3.
These BlackBerry Enterprise Partner Program Terms have a twelve (12) month term (the "Term") commencing on the date that You are accepted by BlackBerry into the Program (the "Commencement Date"), and will remain in effect for a one (1) year term (the "Initial Term"). These BlackBerry Enterprise Partner Program Terms will be automatically renewed for successive one (1) year periods (each an "Additional Term"), unless one Party provides the other Party with written notice terminating these BlackBerry Enterprise Partner Program Terms no less than sixty (60) days prior to expiration of the Initial Term or any subsequent Additional Terms, as the case may be.
BlackBerry may terminate these BlackBerry Enterprise Partner Program Terms at any time upon no less than thirty (30) days prior written notice to You.
Subject to these BlackBerry Enterprise Partner Program Terms, during the Term, BlackBerry authorizes You to use, on a non-exclusive, non-sublicensable and non-transferable basis, the BlackBerry Partner Marks (defined below) authorized by Your tier solely in connection with the Program, provided that, such use of BlackBerry Marks shall, in all cases, be subject to compliance with the BlackBerry Partner Marks Branding Guidelines provided to Partner (as they may be updated from time-to-time). "Marks" means any trademarks, trade names, service marks, commercial symbols, icons, trade dress, logos or other indicia of origin. Any right not expressly granted in this Section 6 is reserved to BlackBerry.
You hereby grant to BlackBerry a non-exclusive, royalty-free license during the Term to use, reproduce and display Your Marks and refer to You and/or Your products or Your services for the purposes of: (i) marketing and promotion of the Program and/or Your products or Your services including but not limited to the distribution, directly and indirectly through third parties, of marketing and promotional materials displaying Your Marks; (ii) displaying Your Marks on BlackBerry's web sites; and (iii) any other use to which You provides its prior written consent to BlackBerry.
The parties agree that each party retains the sole ownership of all rights, title and interests anywhere in the world to their Marks and the goodwill associated therewith. Each Party agrees that it does not have any ownership or title in or to any of the other party's Marks. All goodwill associated with the use of the the other Party's Marks pursuant to this Agreement shall inure solely to the benefit of the owner of the Marks.
You consent to receive electronic communications from BlackBerry related to the Program, to promotions, updates and to products. You can withdraw your consent at any time.
You agree to comply with and be responsible for any laws, regulations, filings, registrations, licenses, approvals and consents required in Your country or jurisdiction including without limitation import, export or data privacy laws and regulations applicable to You, the execution of these BlackBerry Enterprise Partner Program Terms by You, and the receipt or use of the Benefits by You including without limitation the transfer or provision of information, technology, data or personal information to BlackBerry.
The BlackBerry Enterprise Partner Program Terms shall be governed by and construed under the laws of the Province of Ontario, Canada. Each Party hereto 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 the Province of Ontario, Canada. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to the BlackBerry Enterprise Partner Program Terms.
You acknowledge and agree that You do 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 (the "Intellectual Property Rights") in or relating to the Benefits, BlackBerry Confidential Information or any translation or other derivative work thereof. You agree that nothing in the BlackBerry Enterprise Partner Program Terms shall adversely affect any rights and recourse to any remedies that BlackBerry may have under any laws in Your country or jurisdiction relating to the protection of BlackBerry's Intellectual Property Rights. You agree that You will not or will not cause others to register or record with relevant authorities any aspects of the Benefits, BlackBerry Confidential Information as well as any related software or materials (including without limitation any translation or other derivative work of the Benefits, BlackBerry Confidential Information, any related software or materials) for the purpose of acquiring any Intellectual Property Rights except that, upon BlackBerry's written request, You may register or record the BlackBerry Enterprise Partner Program Terms solely for the purpose of facilitating remittance of payments. If You receive or use the Benefits or are resident in a country or jurisdiction that does not have copyright legislation in force or for which copyright legislation does not apply to software then, in addition to any other obligations You may have under the applicable laws in Your country or jurisdiction, You expressly agree that the Copyright Act of Canada shall be deemed to apply to You and Your receipt and use of the Benefits. If You breach, misappropriate or otherwise infringe BlackBerry's confidential information, intellectual property or other proprietary rights (collectively, "IP Breach") and a court in Your jurisdiction is unable or unwilling to grant an injunctive order to stop such IP Breach, You acknowledge that BlackBerry will have the right to receive liquidated damages from You in the amount of US $5,000 per day during the period of such IP Breach.
If a court determines that any provision of these BlackBerry Enterprise Partner Program Terms is wholly or partially invalid or unenforceable, such invalid or unenforceable provision will be regarded as excluded from these BlackBerry Enterprise Partner Program Terms to the extent of such invalidity or unenforceability and the other provisions of these BlackBerry Enterprise Partner Program Terms will remain in force and not be affected thereby.
EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR COUNTRY OR JURISDICTION AND EXCEPT AS EXPRESSLY SET OUT IN THESE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS, BLACKBERRY MAKES NO REPRESENTATIONS, WARRANTIES, ENDORESEMENT, GUARANTEES, ASSURANCES OR CONDITIONS WHATSOEVER, EITHER EXPRESS OR IMPLIED, ABOUT THE BENEFITS.
IN NO EVENT SHALL BLACKBERRY BE LIABLE TO YOU OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, FOR ANY DAMAGES OF ANY KIND. WITHOUT LIMITING THE FOREGOING AND EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR COUNTRY OR JURISDICTION, IN NO EVENT SHALL BLACKBERRY BE LIABLE TO YOU FOR, AND YOU HEREBY WAIVE ANY INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TECHNICAL SUPPORT TERMS, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO BLACKBERRY.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THESE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS SHALL APPLY: (A) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT OF THE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS; AND (B) TO BLACKBERRY AND ITS AFFILIATED COMPANIES AS WELL AS BLACKBERRY'S AND SUCH AFFILIATED COMPANIES' DIRECTORS, OFFICERS, EMPLOYEES, AND INDEPENDENT CONTRACTORS. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR OF IMPLIED CONDITIONS OR WARRANTIES. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET FORTH IN THESE BLACKBERRY ENTERPRISE PARTNER PROGRAM TERMS SHALL NOT APPLY ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRES LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION CONSTITUTE AN ESSENTIAL ELEMENT OF THE TECHNICAL SUPPORT TERMS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS THE FEES WOULD BE SUBSTANTIALLY HIGHER AND COULD IMPACT BLACKBERRY'S ABILITY TO OFFER AND YOUR ABILITY TO RECEIVE AND USE THE BENEFITS IN YOUR JURISDICTION.
BlackBerry may assign these BlackBerry Enterprise Partner Program Terms without notice to You. You shall not assign these BlackBerry Enterprise Partner Program Terms without the prior written consent of BlackBerry (such consent may be withheld or conditioned at BlackBerry's discretion) 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 these BlackBerry Enterprise Partner Program Terms directly or may have some or all obligations performed by its contractor or subcontractors.
You agree to the following confidentiality terms and conditions:
Save for BlackBerry's notice obligations in Section 3 above, any notice, request, demand or other communication required or permitted hereunder will be in writing and shall be sufficiently given if delivered by hand or sent by registered mail, courier, email or facsimile (provided that the receiver acknowledges receipt of the facsimile or email in some fashion or that an e-courier package is used to transmit the notice) addressed to the other Party at the addresses indicated by the Parties from time-to-time. Any such notices, requests, demands or other communications shall be deemed to have been delivered when received by the Party to whom they were addressed.
If these BlackBerry Enterprise Partner Program Terms are translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof.