RESELLER AGREEMENT

THESE TERMS AND CONDITIONS (THIS "AGREEMENT") FORM A LEGAL AGREEMENT BETWEEN YOU AND BLACKBERRY.

"BLACKBERRY" means:

  1. Where Your primary address is in Canada, South America or anywhere not mentioned in (2) to (4) below, BlackBerry Limited.
  2. Where Your primary address is in the United States of America, BlackBerry Corporation.
  3. Where Your primary address is in Europe (including Greenland), the Russian Federation, Middle East or Africa, BlackBerry UK Limited.
  4. Where Your primary address is in Asia Pacific (including Pakistan, Sri Lanka, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan), BlackBerry Singapore Pte Limited.

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.

GENERAL TERMS and CONDITIONS

Rights Granted

  1. Reseller License Reseller and its Affiliates are hereby granted the personal, revocable, non-transferable, non-exclusive right to order from a BlackBerry Authorized Distributor and resell the BlackBerry Solution, and to promote, market and distribute such BlackBerry Solution directly to End Users located in the Territory(ies) provided that such right may only be exercised: (a) in accordance with the terms and conditions of this Agreement; and (b) while the Reseller and its Affiliates are authorised to purchase such BlackBerry Solution from a BlackBerry Authorized Distributor pursuant to this Agreement.
  2. Trademarks During the term of this Agreement and within the Territory(ies), BlackBerry grants to Reseller a personal, non-exclusive, royalty-free and non-transferable license to use, reproduce, distribute and display publicly the BlackBerry Marks on or in connection with the BlackBerry Solution and any packaging, labelling, promotional, advertising or other materials, including websites, relating to the BlackBerry Solution in accordance with and subject to Reseller ensuring its compliance with: (i) the terms of this Agreement; (ii) receiving express written authorisation from BlackBerry each time Reseller or anyone else acting on behalf of Reseller uses BlackBerry Marks; and (iii) the BlackBerry Branding Guidelines. Reseller acknowledges that its use of the BlackBerry Marks is limited to the use licensed in this Agreement, that each and every use of the BlackBerry Marks requires express written authorisation from BlackBerry and that Reseller has not acquired, and will not acquire, any ownership rights therein. Reseller agrees that it will not use any BlackBerry Marks in a manner likely to cause confusion with, dilute or damage the goodwill, reputation or image of BlackBerry or BlackBerry’s BlackBerry Solution. Reseller agrees not to use any BlackBerry Marks as a feature or design element of another logo or trademark. Upon request by BlackBerry, Reseller shall supply BlackBerry with specimens of its use of any BlackBerry Marks and execute or obtain execution of, the instruments that may be appropriate to register, maintain or renew the registration of any BlackBerry Marks in the Territory(ies). The use of any BlackBerry Mark by Reseller does not transfer to Reseller any further right, title, or interest in or to the BlackBerry Mark and all such use and associated goodwill will inure to the benefit of BlackBerry. Reseller shall not register, attempt to register or lay common law claim to any BlackBerry Mark or any mark confusingly similar with a BlackBerry Mark. Reseller hereby acknowledges that the maintenance of the reputation and quality associated with the BlackBerry Marks requires the highest quality and utmost uniformity with respect to the BlackBerry Solution associated with the BlackBerry Marks. BlackBerry reserves the right to inspect Reseller’s use or display of the BlackBerry Marks from time-to-time to ensure that such use or display is in accordance with the terms of this Agreement. Reseller shall permit BlackBerry or its authorized agent to inspect and monitor Reseller’s goods and/or services, at BlackBerry’s cost, to determine and verify that the BlackBerry Marks are being used in accordance with the terms of this Agreement. Should Reseller fail to comply with this provision and fails to cure such non-compliance after written notice by BlackBerry, in addition to any other remedies that BlackBerry may have, BlackBerry may terminate Reseller’s license to use the BlackBerry Marks with immediate effect and Reseller shall immediately cease and shall immediately cause its Sub-resellers to cease using all BlackBerry Marks.

Definitions

  1. "Affiliate" means any entity controlling, controlled by, or under common control with BlackBerry or Reseller, as applicable, on the Effective Date.
  2. "BlackBerry Authorized Distributor" means those entities specified in writing to Reseller, which are permitted by BlackBerry to sell the BlackBerry Software to Reseller.
  3. "BlackBerry Branding Guidelines" means BlackBerry’s then-current branding guidelines applicable to this Agreement (which may be located at www.blackberry.com/partnerguidelines or another website notified by BlackBerry) as they may be modified by BlackBerry from time-to-time.
  4. "BlackBerry Marks" means the trademarks, trade names, service marks or logos of BlackBerry.
  5. "BlackBerry Solution" means a solution or service which includes any components or portions of BlackBerry Software and/or BlackBerry Services, and applicable documentation.
  6. "BlackBerry Software" means any software in object code form only provided by or on behalf of BlackBerry to End User under an Order or otherwise supplied with or as part of a BlackBerry Solution, including without limitation, firmware and interfaces. “BlackBerry Software" does not include any third party items whether or not they are distributed by BlackBerry or on behalf of BlackBerry, or purchased through any other BlackBerry channels even if they are provided with, or operate in conjunction with, the BlackBerry Software and/or any other part of the BlackBerry Solution.
  7. "BlackBerry Services" means any service made available to Reseller by or on behalf of BlackBerry under an Order, and excludes third party services.
  8. "End User" means any entity that enters into a license to use the BlackBerry Solution for purposes other than redistributing and reselling it.
  9. "End User License Agreement" means BlackBerry’s terms and conditions for the BlackBerry Solution between the End User and BlackBerry.
  10. "Order" means an electronic or written order from a Reseller to an Authorized BlackBerry Distributor for the BlackBerry Software on the form of order provided by the BlackBerry Authorized Distributor.
  11. "Territory(ies)" means only the territory or territories specified to Reseller by BlackBerry.

Orders

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.

Service Level Commitments

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.

Audit

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: itchannelapplications@blackberry.com.

BlackBerry End User License Agreement(s)

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.

Restrictions

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:

  1. not promote, market or distribute the BlackBerry Solution to anyone other than End Users in the Territory(ies);
  2. not white label or rebrand the BlackBerry Solution;
  3. not market solutions that are competitive to the BlackBerry Solution to existing BlackBerry End Users;
  4. conduct their business and activities in such a manner so as to promote a positive image and good public relations for BlackBerry;
  5. not engage in deceptive, tortious, offensive, misleading, illegal, or unethical practices that may be detrimental to BlackBerry or to the BlackBerry Solution and any representations Reseller makes about BlackBerry and its BlackBerry Solution shall be fair and accurate;
  6. not make any representations, warranties, or guarantees to End Users that are not in accordance with the documents and specifications provided by BlackBerry for the BlackBerry Solution;
  7. comply at Reseller’s sole expense with all applicable federal, national, state, provincial, and local laws and regulations in relation to the BlackBerry Solution and in performing its duties with respect to the BlackBerry Solution, including, without limitation, those tax, foreign exchange, transfer of money, marketing, consumer protection, anti-mafia or anti-terrorist laws specific to the Territory, as well as any applicable laws regarding export, import and use of the BlackBerry Solution, data protection and privacy;
  8. in the conduct of its operations comply with BlackBerry’s Code of Business Standards and Principles, as set out in Schedule 1 (including, without limitation, the Insider Trading Policy and Prevention of Improper Payments Policy referred to therein);
  9. not represent that the BlackBerry Solution is designed or licensed for use in circumstances where the failure of any part of the BlackBerry Solution (including, without limitation, the BlackBerry Software) is likely to result in significant risks to health or safety, where fail-proof delivery of time-specific information is required, or in otherwise hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems;
  10. not engage in business practices, promotions or advertising which may be injurious to the reputation or business goodwill of BlackBerry and comply with the current BlackBerry Branding Guidelines;
  11. not sell BlackBerry Solution directly or indirectly to any USA government agency or any third party entity on behalf of any USA government entity, except in compliance with all applicable laws, orders, codes, and regulations and Reseller is not authorized to sell and/or make available any BlackBerry Solution to the USA government except under a commercial item contract executed by a contracting officer duly authorised to execute the contract on behalf of the USA government and containing or incorporating by reference no provisions regarding data rights, intellectual property or rights in computer software/documentation except for the applicable BlackBerry license or such standard commercial licensing terms as BlackBerry has supplied or may supply to Reseller;
  12. ensure that its knowledge relating to BlackBerry Solution is current and that Reseller and its personnel shall undergo the training as may be reasonably required by BlackBerry from time-to-time and otherwise comply with the program requirements found in the Reseller Program Description provided to Reseller and as may be updated by BlackBerry in its sole discretion from time-to-time;
  13. For the term of the Agreement, Reseller shall maintain: (a) Workers Compensation, or jurisdictional equivalent in accordance with the laws and regulations of the jurisdiction in which the operations are performed; (b) Employers Liability insurance in an amount not less than $1,000,000 USD; (c) Commercial General Liability insurance (i) with a limit of $1,000,000 USD per occurrence; (ii) including coverage for property damage, bodily injury, personal injury, products and completed operations hazards, contractual liability for this Agreement; (iii) including BlackBerry as an additional insured with respect to liability arising out of Reseller’s performance of this Agreement or containing an Indemnity to Principals clause; and (iv) containing a cross-liability and severability-of-interest clause, and (d) if vehicles registered to Reseller are used, Motor/Automobile Liability insurance in accordance with the laws and regulations of the jurisdiction in which the vehicles are used, or $2,000,000 USD, whichever is greater; and (e) Professional Liability Insurance with a limit of not less than $5,000,000 USD with the retroactive date no later than the commencement of services under this Agreement. Such insurances shall be provided by insurance companies having policy holder ratings no lower than “A-” and financial ratings not lower than “VIII” in the Best’s Insurance Guide or equivalent ratings from another recognized financial rating service, and licensed to do business in the locations where the Service is being provided. Reseller shall supply proof of insurance demonstrating that all of the insurance required herein is in force, that not less than thirty (30) days’ written notice shall be given to BlackBerry prior to any cancellation or restrictive modification of the policies. The limits of insurance herein are stated in United States of America dollars, but Reseller may purchase equivalent limits in local currency. The limits of insurance required herein may be made up of any combination of Primary, Umbrella, or Excess insurance layers; and
  14. ensure that each End User who purchases BlackBerry Software is warned that the BlackBerry Software may include encryption software that is subject to domestic and foreign legal restrictions that restrict export, import and use of the BlackBerry Software.

Term and Termination

  1. The term of this Agreement will commence on the Effective Date and will continue for one (1) year unless terminated in accordance with this Section 8. This Agreement will automatically renew for successive one (1) year terms to a maximum of three (3) years. Any further renewal of this Agreement shall be by written amendment signed by both Parties.
  2. This Agreement may be terminated by either Party: (i) upon thirty (30) days written Notice (as defined in Section 29) to the other Party of a breach of a material provision of this Agreement, including but not limited to the payment of any Fees payable under this Agreement when due, if such breach remains uncured at the end of such thirty (30) days; or (ii) immediately if the other Party ceases to carry on business as a going concern or becomes the subject of voluntary or involuntary bankruptcy or liquidation proceedings or if a receiver or similar officer is appointed with respect to the whole or substantial part of its assets or any insolvency event similar to the foregoing occurs under applicable law;.
  3. This Agreement may be terminated by BlackBerry upon a sale of all or substantially all the assets of Reseller, any merger, consolidation or acquisition of Reseller with, by or into another corporation, entity or person, or any change in the ownership of more than fifty percent (50%) of the voting capital stock of Reseller in one or more related transactions;
  4. This Agreement may be terminated for convenience by either Party upon thirty (30) days written Notice.

Termination Remedies

  1. If Reseller breaches this Agreement, BlackBerry or its agent may take certain actions they deem appropriate, which may include but is not limited to temporary or permanent immediate suspension or termination of Resellers rights hereunder.
  2. Except as expressly provided herein, BlackBerry shall not have any liability to Reseller arising from or related to the termination of this Agreement, or any rights or licenses granted herein, in accordance with this Agreement.

Effect of Expiration or Termination

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).

Confidentiality

  1. If the Parties have entered into a Non-Disclosure Agreement (“NDA”) with BlackBerry, the Parties agree that the NDA is incorporated by reference and the terms of the NDA will continue to apply to this Agreement except that: (a) the term of the NDA will be extended automatically to the extent necessary to make it coextensive with the term of this Agreement; and (b) the Confidential Information (as defined in the NDA) revealed or otherwise disclosed through Reseller’s receipt of or use of the products and services provided under this Agreement may be used or reproduced subject to and limited by the terms and conditions in this Agreement (which will be deemed to be included in the definition of “Purpose” under the NDA); and, (c) in the case of any conflict between the NDA and this Agreement, the terms of this Agreement shall supersede.
  2. If the Parties have not entered into a non-disclosure agreement, this subsection 10(b) shall apply to this Agreement. Except as specifically permitted in this Agreement or with the prior express written permission, the Parties shall not disclose, allow access to, transmit, transfer or otherwise make available any Confidential Information, as defined below, to any third party. Notwithstanding the foregoing, the Parties may disclose Confidential Information either if and only to the extent it is required to do so by law provided that the Party gives the other Party sufficient notice to enable the other Party to seek an order limiting or precluding such disclosure, or to the extent necessary to further and fulfill the purposes of this Agreement. Neither Party shall use or reproduce the Confidential Information for any reason other than as reasonably necessary to provide, resell or use the BlackBerry Solution, in whole or in part, as provided under this Agreement subject to and limited by the terms and conditions in this Agreement. “Confidential Information” is hereby defined as: (i) any information in whatever form or medium that is proprietary or confidential to the disclosing Party; (ii) which the recipient Party is given access, directly or indirectly, by the disclosing Party; and, (iii) is related to the sale or potential sale of the BlackBerry Solution, in whole or in part. Confidential Information that a Party can establish was lawfully in that Party’s possession before receipt from the disclosing Party; or is a matter of public knowledge through no fault of the recipient Party shall not be considered Confidential Information under this Agreement.

Ownership and Intellectual Property

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.

Warranty, Limitation of Warranty, Indemnity and Limitation of Liability.

  1. Warranty BlackBerry will grant End Users the warranty on the BlackBerry Solution set out in the End User License Agreement under which the BlackBerry Solution has been licensed and/or the applicable product terms, and such warranty will be End Users sole warranty in relation to the BlackBerry Solution. BlackBerry disclaims any and all representations or warranties with respect to third party products ordered by Reseller under this Agreement.
  2. Limitation of Warranty EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13(a) (WARRANTY), AND SUBJECT TO APPLICABLE LAW, BLACKBERRY MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS EITHER EXPRESS OR IMPLIED TO RESELLER, END USER OR ANY THIRD PARTY, AND BLACKBERRY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, CONDITIONS OR WARRANTIES, RELATING TO OR ARISING FROM THE SUPPLY OF THE BLACKBERRY SOLUTION, PERFORMANCE OR NON-PERFORMANCE OF ANY BLACKBERRY SERVICES, OR THIS AGREEMENT GENERALLY, INCLUDING ANY IMPLIED, REPRESENTATIONS, CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, TITLE, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE BLACKBERRY SOLUTION WILL WORK UNINTERRUPTED OR ERROR-FREE. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BLACKBERRY SPECIFICALLY DISCLAIMS: (A) THE SUITABILITY OF THE BLACKBERRY SOLUTION FOR USE IN MISSION-CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS; (B) ANY WARRANTIES OR CONDITIONS RELATED TO THE BLACKBERRY SOLUTION (EXCEPT AS EXPRESSLY PROVIDED FOR IN THE APPLICABLE END USER LICENSE AGREEMENT); (C) ANY WARRANTY OR CONDITION RELATED TO AIRTIME SERVICES; AND (D) ANY OBLIGATION WITH RESPECT TO ANY DATA STORED IN THE BLACKBERRY SOLUTION INCLUDING WITHOUT LIMITATION, WHEN SUCH PRODUCTS (IF APPLICABLE) ARE RETURNED FOR REPAIR OR REPLACEMENT. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
  3. Reseller Indemnity Reseller agrees to indemnify BlackBerry and its Affiliates, and their officers, directors, employees and subcontractors against any claims, judgments, damages, costs, (including reasonable lawyers’ fees and disbursements) and settlements agreed to by Reseller and/or Reseller’s Affiliates in relation to: (a) any advertising, distribution, sale or marketing of the BlackBerry Solution under this Agreement, in a manner not expressly and in writing permitted by BlackBerry under this Agreement; (b) any infringement claim arising from or in connection with: (i) modifications to the BlackBerry Solution or any portion thereof where such modification is made by Reseller, or on behalf of Reseller, or authorized by Reseller; (ii) any materials provided by or on behalf of Reseller to BlackBerry regarding any modification to the BlackBerry Solution where such claim would not arise but for such materials; or (iii) an End User’s combined use of the BlackBerry Solution or portion thereof with other software and/or hardware products or applications not supplied by BlackBerry where such combined use is recommended by Reseller and the software and/or hardware products or applications are supplied to End User by Reseller; provided however, that in relation to any of (a), (b) or (c): (i) Reseller is promptly notified in writing of such claim, (ii) Reseller shall have the sole control of the defense and/or settlement thereof, (iii) BlackBerry furnishes to Reseller on any reasonable request any information in BlackBerry’s possession or control for such defense, (iv) BlackBerry will not admit any such claim and/or make any payments with respect to such claim without the prior written consent of Reseller, and (v) BlackBerry shall, at Reseller’s expense, cooperate with, and provide such assistance to Reseller in the defense of such claims as reasonably requested by Reseller.
  4. Limitation of Liability IN NO EVENT SHALL BLACKBERRY BE LIABLE TO RESELLER, ITS AFFILIATES OR TO ANY THIRD PARTY CLAIMING THROUGH RESELLER FOR, AND RESELLER HEREBY WAIVES: (I) ANY LOSS OF PROFITS BUSINESS REVENUE OR EARNINGS, ANTICIPATED SAVINGS, GOODWILL, CONTRACTS OR BUSINESS OPPORTUNITIES OR DATA (WHETHER SUCH LOSS SHALL BE CONSIDERED DIRECT OR INDIRECT); (II) ANY LOSS OR DAMAGE CAUSED BY DELAYS (WHETHER SUCH LOSS SHALL BE CONSIDERED DIRECT OR INDIRECT); AND (III) ANY INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT; THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY REGARDLESS OF WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD OR THE POSSIBILITY OF GREATER LOSS HAS BEEN DISCLOSED TO BLACKBERRY.
  5. SUBJECT ALWAYS TO THE PRECEDING PARAGRAPH, IN NO EVENT SHALL BLACKBERRY BE LIABLE TO RESELLER, ITS AFFILIATES, OR ANY THIRD PARTY CLAIMING THROUGH RESELLER, FOR ANY DAMAGES OF ANY KIND IN EXCESS OF THE AMOUNTS PAID BY BLACKBERRY’S AUTHORIZED DISTRIBUTOR TO BLACKBERRY FOR THE BLACKBERRY SOLUTION PURCHASED PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
  6. Reseller acknowledges and agrees that: (a) it is not entitled to any payments from BlackBerry as a result of Reseller’s appointment as Reseller or termination or expiration thereof (whether by law, contract, operation of law, statute, regulation, or otherwise); and (b) BlackBerry shall have no responsibility or liability whatsoever to Reseller or any End User or any party claiming through Reseller for any issues relating to third party products or services.
    The limitations, exclusions and disclaimers set out in this Agreement 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 this Agreement; and (b) to BlackBerry and its affiliated companies as well as BlackBerry’s and such affiliated companies’ directors, officers, employees, and independent contractors.

Delivery and Risk of Loss

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.

Force Majeure

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.

No Agency Relationship

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.

Applicable Law and Jurisdiction

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.

Compliance With Laws and Export Control

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.

Legal And/or Regulatory

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.

Assignment and Successor

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.

Notices

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 legal@blackberry.com. 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.

Third Party Beneficiaries

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.

Multiple Resellers And/or BlackBerry Entities

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.

Non-Exclusivity

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.

Entire Agreement

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.

No Waiver

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.

Severability

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.

Survival

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).

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.

SCHEDULE 1 to RESELLER AGREEMENT BETWEEN BLACKBERRY and RESELLER BLACKBERRY CODE of BUSINESS STANDARDS and PRINCIPLES

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