BLACKBERRY AD SERVICE PUBLISHER AGREEMENT
This BlackBerry Ad Service Publisher Agreement (“Agreement”) is a legal agreement between Publisher (as identified in the signature block at the end of this Agreement) and Research In Motion Limited, with offices at 295 Phillip Street, Waterloo, Ontario, N2L 3W8 (“RIM”) (together the “Parties” and individually a “Party”).
A. Publisher has developed, licensed, and/or distributes Applications and seeks to enable the provision of the BBAS Service in respect of Applications;
B. RIM offers a service that allows applications installed on BlackBerry Devices to receive and display Ad Content (the “BBAS Service”); and
C. RIM agrees to provide, and Publisher agrees to accept, the BBAS Service in accordance with the provisions of this Agreement.
In consideration of the foregoing, and the mutual premises and covenants set forth herein and other valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties agree as follows:
1.1 “Acceptable Applications Policy” means RIM’s Acceptable Applications Policy applicable to the BBAS Service, Applications, Publisher Services, and Publisher Content as determined by RIM from time to time and made available to Publisher (including by posting in the BBAS Publisher Portal).
1.2 “Ad Content” means digital files consisting of text, graphics, and/or multimedia content designed for the purposes of promoting a brand, product, service, or other item and formatted to be transmitted through the BBAS and displayed in Enabled Applications.
1.3 “Ad Supplier” means a supplier of Ad Content selected by RIM in respect of the BBAS.
1.4 “Ad Supplier Revenue” means, in respect of particular Ad Content, all revenue received by an Ad Supplier (excluding, for greater certainty, taxes and other applicable deductions) attributable to the distribution and serving of the Ad Content.
1.5 “Application” means a software application developed, licensed, and/or distributed by Publisher for which Publisher seeks to enable the provision of Ad Content pursuant to this Agreement.
1.6 “BBAS” means the BlackBerry Advertising Services platform operated by or on behalf of RIM for the purpose of providing Ad Content to Enabled Applications.
1.7 “BBAS Program” means the BlackBerry Advertising Services program operated by or on behalf of RIM for the purpose of providing Ad Content to Enabled Applications.
1.8 “BBAS Publisher Portal” means the online portal maintained by or on behalf of RIM for the administration of Publishers’ participation in the BBAS Program.
1.9 “BBAS SDK” means all software (including programs, tools, sample code, templates, libraries and interfaces, APIs, and updates), information, data, files, documentation, and other materials, whether tangible or intangible, in whatever form or medium, provided to Publisher by RIM at any time, either by way of downloading from a RIM or a RIM affiliate website or otherwise, for any development purposes relating to the BBAS.
1.10 “BBAS Service” has the meaning ascribed thereto in the recitals of this Agreement.
1.11 “BlackBerry Device” means a device (i) manufactured by or on behalf of RIM, or (ii) by or on behalf of a third party that has been authorized by RIM to operate on RIM’s infrastructure or as part of a BlackBerry Solution.
1.12 “BlackBerry Solution” means the combination of RIM proprietary products and services used by a particular end user.
1.13 “Commencement Date” has the meaning ascribed thereto in Section 2.7.
1.14 “Confidential Information” has the meaning ascribed thereto in Section 5.5.
1.15 “Effective Date” has the meaning ascribed thereto in the signature block, below.
1.16 “Enabled Application” means an Application activated by or on behalf of RIM to receive Ad Content from the BBAS pursuant to this Agreement.
1.17 “End User” means any end user that receives, uses, or accesses, or is entitled to receive, use, or access, an Application.
1.18 “Intellectual Property Rights” means any intellectual property or proprietary rights granted pursuant to statute, common law or otherwise, and includes without limitation intellectual property rights relating to patents, designs, trademarks, copyrights, confidential information and trade secrets.
1.19 “Personal Information” means information: (a) about an identified End User; or (b) about an End User where there is a serious possibility that employees, agents or independent contractors of a Party having access to such information would, in conjunction with other information to which such employees, agents or independent contractors have access, be able to identify the End User.
1.20 “Publisher Content” means content, including without limitation multimedia content, that is developed, licensed, and/or distributed by Publisher and/or made available to End Users by or on behalf of Publisher in connection with an Enabled Application.
1.21 “Publisher Marks” means all names, trade names, trademarks, service marks and logos of Publisher, including without limitation those embodied in all Applications.
1.22 “Publisher Services” means services provided to End Users by or on behalf of Publisher in connection with an Enabled Application.
1.23 “SDK Agreement” means the agreement between RIM and Publisher, or between RIM and the licensor of the relevant Application, as applicable, that provides for the use of RIM’s BBAS SDK, a copy of the current version of which is available at http://www.blackberry.com/legal.
1.24 “Taxation Authority” means any government, state, municipality or any local, provincial, state or other fiscal, customs, excise or taxing authority, body or official anywhere in the world with responsibility to, and competency to, impose, collect, audit, assess, administer or levy any Taxes or make any decision or ruling in respect of any Taxes.
1.25 “Taxes” means all taxes, assessments, tariffs, dues, duties, rates, fees, imposts, levies and similar charges of any nature whatsoever, imposed, levied, assessed, or collected by any Taxation Authority, whether based on the importation, delivery, availability, possession, consumption or use of the products and/or services by any party or the provision or receipt of the products and/or services by any party, the execution of this Agreement or otherwise, together, in each case, with all interest, penalties, fines or other additional amounts imposed in respect thereof, including without limitation: (A) all income taxes (including any taxes based on, measured by or with respect to net income, gross income, income as specifically defined, earnings, profits or selected items of income, earnings or profits), windfall profits taxes, gross receipts taxes, branch taxes, minimum taxes, alternative minimum taxes, or capital gains taxes; (B) capital taxes, franchise taxes or net worth taxes; (C) property taxes, personal property taxes, or rental taxes (all amounts in (A), (B) and (C) referred to as “Individual Party Taxes”; and (D) sales taxes, use taxes, ad valorem taxes, value added taxes, excise taxes, goods and services taxes, harmonized sales taxes, license taxes, stamp taxes, transfer taxes or customs duties. Any amounts in (D) referred to herein as “Indirect Taxes”.
1.26 “Upgrade” means, in respect of any Application, any update, upgrade, bug fix, enhancement, or other modification or addition to the Application.
2. BBAS Service
2.1 Acceptable Applications Policy. Applications that do not comply with the Acceptable Applications Policy are not eligible for participation in the BBAS Program. Accordingly, Publisher shall not (i) permit to become an Enabled Application any Application that does not comply with the Acceptable Applications Policy, (ii) submit to RIM hereunder any Application that does not comply with the Acceptable Applications Policy, (iii) provide through any Enabled Application, or otherwise provide to any End User, any Publisher Content or Publisher Service that does not comply with the Acceptable Applications Policy, or (iv) distribute or make available in respect of any Enabled Application any Upgrade that does not comply with the Acceptable Applications Policy.
2.2 BBAS SDK. In order to configure an Application to call, receive, and display Ad Content, Publisher must obtain from RIM, and must configure the Application using, the BBAS SDK. Without limiting any restrictions in the SDK Agreement, Publisher may utilize the BBAS SDK (including without limitation any portions of Applications configured or developed using the BBAS SDK) solely for the purposes of developing Applications that utilize the BBAS Service in accordance with this Agreement and, for greater certainty, not for the purpose of calling, receiving, or displaying any ads or other content or data not pursuant to the BBAS Program. Publisher acknowledges and agrees that Publisher’s access to and use of the BBAS SDK or any portion thereof is subject to the terms of the SDK Agreement. Publisher represents and warrants, as of the Effective Date and for the duration of the Term, that the SDK Agreement remains in effect and that Publisher has not breached, and is not aware that the licensor of any Applications, as applicable, has breached, any provision of the SDK Agreement.
2.3 Publisher Registration. In order to participate in the BBAS Program, Publisher must register for the BBAS Program at the BBAS Publisher Portal. Publisher shall, in registering for participation in the BBAS Program, provide to RIM all information requested and/or required by RIM, as determined in RIM’s sole discretion.
2.4 Notification regarding Approval of Applications. In respect of each Application, Publisher shall provide the information and other materials requested and/or required by RIM, as determined in RIM’s sole discretion. Subsequent to RIM’s assessment of the information provided in respect of Publisher and each Application, RIM will notify Publisher (whether through the BBAS Publisher Portal, by email, or otherwise) whether the Application has been approved by RIM as an Enabled Application. RIM may, at any time, in RIM’s sole discretion and for any reason whatsoever, including without limitation a breach of the Acceptable Applications Policy or a third party claim made in relation to an Application, with or without advance notice to Publisher, discontinue (in respect of one or more Enabled Applications, in whole or in part, including in only some jurisdictions and including only with respect to some Ad Suppliers) Publisher’s or its Enabled Applications’ participation in the BBAS Program. If RIM does not provide Publisher with prior notice of any such discontinuance, RIM shall do so, by means of the BBAS Publisher Portal or otherwise, within a commercially reasonable period following such discontinuance.
2.5 Ad Code. In respect of each Enabled Application, RIM will provide to Publisher a unique identifier (the “Ad Code”). In order for the Enabled Application to receive Ad Content and for Publisher to participate in the BBAS Program, Publisher must ensure that the Ad Code is integrated in the Enabled Application in accordance with the applicable specifications set out in the BBAS SDK. Publisher acknowledges and agrees that the Ad Code constitutes Confidential Information of RIM and that, for greater certainty, Publisher will not disclose any Ad Code other than to, or as directed by, RIM, and that Publisher will use the Ad Code solely as directed by RIM and solely for the purposes of participation in the BBAS Program.
2.6 Enablement of Applications. Subsequent to provision of an Ad Code in respect of an Enabled Application, Publisher shall for such period of time prescribed by RIM (in RIM’s sole discretion) cooperate with RIM (or such third parties designated by RIM from time to time) in any assessment, beta testing, or other on boarding activities reasonably requested by RIM in respect of the Enabled Application (the “Onboarding Period”).
2.7 Provision of BBAS Service. RIM shall, commencing on completion of the Onboarding Period (the “Commencement Date”) and continuing for the Term, use commercially reasonable efforts to make the BBAS Service available in such manner as is generally made commercially available by RIM from time to time, in accordance with the provisions of this Agreement. Further, RIM shall have the right to cease providing the BBAS Service at any time and from time to time in its sole discretion in accordance with Section 9.
2.8 Prevention of Access. RIM reserves the right, but has no obligation, to prevent access to or use of the BBAS Service or any Applications if RIM reasonably believes such access or use is contrary to the provisions of this Agreement, the Acceptable Applications Policy, or any applicable laws.
3. Support for Applications
3.1 Support. Publisher is solely responsible for, and agrees to provide, reasonable technical and product support to End Users with respect to the product features, installation and use of Applications, Publisher Content, and Publisher Services, which shall include at a minimum a warranty for all Applications, Publisher Content, and Publisher Services consistent with the laws of the jurisdiction of the End User. Publisher shall provide End Users with a support contact email address, and/or a support URL, to enable End Users to obtain support for Applications, Publisher Content, and Publisher Services. Publisher shall further provide to RIM all reasonable support required for RIM to enable the BBAS Service. RIM shall have no obligation to provide to any End User any technical or other support relating to any Applications, Publisher Content, or Publisher Services.
4. Fees and Taxes
4.1 Fees. RIM shall (directly or through its designee), in respect of each calendar month during the period commencing on the Commencement Date and ending upon expiration or termination of the Term, pay to Publisher fees equal to sixty percent (60%) of the Ad Supplier Revenue attributable to Ad Content served to Enabled Applications pursuant to this Agreement (the “Fees”). The Fees are payable within sixty (60) days of the end of the calendar month in respect of which the Fees accrued, and shall be paid in United States dollars by electronic funds transfer (or such other means as RIM may elect, in its sole discretion, from time to time) to the account specified by Publisher in the BBAS Publisher Portal. In respect of any payment to Publisher that totals less than US$100, RIM may withhold such payment until such calendar month when the total payments accrued hereunder but unpaid exceed US$100.
4.2 Taxes. Unless otherwise expressly specified in this Agreement, all amounts otherwise payable by RIM to Publisher are inclusive of Indirect Taxes. Each Party shall be responsible for any Individual Party Taxes that are lawfully payable by such Party to any Taxation Authority. Notwithstanding anything else contained herein, Publisher shall indemnify RIM for any liability that RIM has for any additional Taxes (including for greater certainty any interest, penalties, fines, or other similar charges) arising as a result of or in connection with any delay or failure by Publisher, for any reason (A) to charge, collect, and/or remit to the relevant Taxation Authority any Taxes due under or in relation to this Agreement, or (B) to file any tax or information return with the relevant Taxation Authority in connection with the charging, collection, and/or remittance of Taxes.
For greater certainty, if there are any Indirect Taxes which the Publisher is required to collect from RIM, the Publisher will be solely responsible for the payment of any and all such applicable Indirect Taxes imposed on the Fees. The Publisher agrees that it shall not have any right to separately invoice RIM for Indirect Taxes, except that where law requires a separate invoice of any Indirect Taxes, the Publisher shall have the right to send any such invoices to RIM marked “Paid”, as RIM’s payment of any amounts in such invoice(s) shall be considered already paid as part of the Fees due to the Publisher from RIM. Publisher shall provide to RIM all data reasonably necessary for RIM to support any Indirect Taxes. For the avoidance of doubt, under no circumstance shall RIM be deemed to be providing tax advice or consulting services to the Publisher. The Publisher shall be solely responsible for the calculation of Indirect Taxes due from RIM.
4.3 Withholding Taxes. Notwithstanding anything else contained herein, if any amounts (including without limitation any Taxes) are required to be withheld by RIM from any amount payable by RIM to or for the benefit of Publisher under this Agreement, RIM (A) shall be entitled to withhold and deduct such amounts from any payments owing to Publisher under this Agreement, (B) will pay, or cause to be paid, to the relevant Taxation Authority the amount of such applicable withholdings in accordance with applicable law, and (C) will pay to Publisher the amounts determined by RIM to be owing to Publisher under this Agreement net of such withholdings. For greater certainty, any amount so withheld or deducted by RIM shall discharge RIM’s obligation to pay such amount to Publisher provided that RIM has remitted, or caused to be remitted, such amount to the relevant Taxation Authority. Upon Publisher’s written request, RIM shall make reasonable efforts to deliver to Publisher acceptable documentation evidencing the payment and remittance to the relevant Taxation Authority of the amounts withheld by RIM. Subject to applicable law (including any applicable income tax conventions or treaties), the parties agree to cooperate to reduce any amounts required to be withheld by RIM from any amount payable by RIM to Publisher under this Agreement, including filing any documents with any relevant Taxation Authority, provided that RIM is satisfied, acting reasonably, that any such filing would not be adverse to RIM. Notwithstanding anything else contained herein, if RIM should determine or a Taxation Authority should assert (whether or not such claim is or may be contested) that RIM failed to withhold any amount required to be withheld from amounts previously paid by RIM to or for the benefit of Publisher (such an amount referred to herein as a “Make-Whole Amount”), Publisher shall, within thirty (30) days of the date of a written demand from RIM, pay such Make-Whole Amount to RIM (including for greater certainty where RIM has already remitted such amount to the relevant Taxation Authority) or remit such Make-Whole Amount directly to the relevant Taxation Authority on RIM’s behalf, as RIM may direct. In addition to any other rights that RIM may have, RIM shall also be entitled to deduct and withhold an amount equal to any such Make-Whole Amount from any amounts then payable or that become payable by RIM to Publisher under this Agreement (in addition to any other amounts that RIM is entitled to deduct and withhold from such payments). Any Make-Whole Amount so withheld or deducted by RIM shall discharge RIM’s obligation to pay such amount to Publisher provided that RIM has remitted, or caused to be remitted, such Make-Whole Amount to the relevant Taxation Authority.
5. Intellectual Property and Confidentiality
5.1 Intellectual Property Rights. Publisher does not acquire any right, title, or interest in or to any RIM intellectual property. Other than as expressly set forth herein, RIM does not acquire any right, title, or interest in or to any Publisher intellectual property.
5.2 Independent Development. Notwithstanding any other provision of this Agreement, Publisher acknowledges and agrees that RIM is also a software developer and licensee and distributor of applications that operate on RIM proprietary software platforms, and that RIM may currently or in the future develop, use, market, promote, distribute, and/or license products and/or services that are similar to and/or competitive with any Applications, and that no provision of this Agreement prohibits RIM from doing so.
5.3 Publisher Marks License. Publisher grants to RIM a non-exclusive, worldwide, royalty-free license during the Term to use, reproduce, publish, and display Publisher Marks, solely for the purposes of promoting, advertising, and marketing the BBAS Service. RIM’s use of Publisher’s Marks shall be in accordance with any written branding guidelines that Publisher provides to RIM in a timely fashion, and shall be subject to Publisher’s prior approval. Such approval shall not be unreasonably withheld or delayed and shall be deemed given if Publisher does not provide notice to RIM of approval or non-approval within ten (10) business days of Publisher’s receipt of RIM’s request. Any rights not expressly granted herein are reserved by Publisher. All of RIM’s uses of Publisher’s Marks shall inure to the benefit of Publisher. Without limiting the foregoing, RIM will not, except as expressly approved in writing by Publisher in advance (a) modify any Publisher Marks, (b) combine the Publisher Marks with any other marks or create any composite marks, or (c) do anything that would compromise Publisher’s rights in and to the Publisher Marks.
5.4 RIM Marks. As necessary and solely in association with the provision of the Publisher Services by means of the BBAS Service, Publisher may refer to RIM and BlackBerry Devices and disclose the general nature of this arrangement to end users, but may not use any RIM logo or other RIM trademark without RIM’s prior express written permission to do so. Any authorized use of RIM trademarks, trade names, service marks, commercial symbols, trade dress, or logo is subject to RIM’s prior written approval and must be in accordance with RIM’s Public Guidelines for use of RIM trademarks, as modified by RIM from time to time, the current version of which is available at www.blackberry.com/publicguidelines. Any rights not expressly granted herein are reserved by RIM.
5.5 Confidentiality. In this Agreement, “Confidential Information” means all trade secrets and other materials and information that is not generally known to the public, is or has been in the possession or control of RIM, and is either specifically identified as confidential information prior to or at the time of it being disclosed or otherwise made available to Publisher or would generally be considered confidential in the wireless communications industry, including without limitation (a) any of RIM’s or its affiliates’ technical, financial, legal, corporate, marketing, business opportunity, product, personnel, supplier, and other information in whatever form or medium, and (b) information regarding the volume or nature of Ad Content distributed in connection with, or regarding revenue or payments relating to, the BBAS. Except as specifically permitted in this Agreement or with the prior written permission of an officer of RIM, Publisher shall not (c) disclose, allow access to, transmit, transfer, or otherwise make available any Confidential Information to any third party other than its employees who need to know such information to fulfill the purposes of this Agreement and with whom it has executed a non disclosure or other agreement which limits the use, reproduction, and disclosure of the Confidential Information on terms that afford at least as much protection to the Confidential Information as the provisions of this Agreement, or (d) use or reproduce the Confidential Information for any reason other than as reasonably necessary to fulfill the purposes of this Agreement. Publisher shall ensure that any copy of any Confidential Information that Publisher makes is marked confidential and proprietary to RIM. Notwithstanding the foregoing, Publisher may disclose Confidential Information if and only to the extent it is required to do so by law provided that Publisher gives RIM sufficient notice to enable it to seek an order limiting or precluding such disclosure. Confidential Information that Publisher can establish (i) was lawfully in Publisher’s possession before receipt from RIM, or (ii) is or becomes a matter of public knowledge through no fault of Publisher, or (iii) was independently developed or discovered by Publisher shall not be considered Confidential Information under this Agreement. Nothing in this Agreement shall confer upon Publisher any right, title, or interest in or to any Confidential Information except as expressly stated in this Agreement. There is no need for Publisher to provide to RIM any confidential information under this Agreement and, accordingly, Publisher acknowledges and agrees that except as expressly set out in any confidentiality agreement(s) that may exist between Publisher and RIM (A) RIM has no confidentiality obligations with respect to any information provided by Publisher to RIM under or in relation to this Agreement or the BBAS Service, and (B) for greater certainty, and without limiting the foregoing, RIM may disclose to Ad Suppliers the identity of Publisher as well as particulars regarding Ad Content that is served to Enabled Applications. For greater certainty, RIM shall have no confidentiality obligations with respect to the executable format version of any Application.
5.6 Feedback. Publisher may identify problems, solutions to problems, or suggest improvements or other changes with respect to RIM’s technology, products, and/or services, including without limitation the BBAS Service (“Feedback”). Publisher shall not knowingly provide RIM with any Feedback that is subject to third party intellectual property rights or that reveals any confidential information of Publisher or any third party. Publisher hereby grants to RIM a license to use the Feedback on a worldwide, royalty-free, sub-licensable, perpetual, non-revocable, and non-exclusive basis to develop, manufacture, make, have made, reproduce, have reproduced, make derivative works of, modify, use, export, import, offer to sell, and sell as part of RIM’s technology, products, and/or services, including without limitation the right to authorize others to do so, and use of the Feedback will not impose any confidentiality or other obligations on RIM or its affiliates.
6. Publisher Representations, Warranties, Covenants, and Acknowledgements. Publisher represents, warrants, covenants, and acknowledges to RIM as follows:
6.1 Publisher has the full right, power and authority to enter into this Agreement and grant the rights provided for herein;
6.2 All information Publisher provides to RIM in relation to this Agreement is true, accurate, current, and complete;
6.3 Applications, Publisher Content and Publisher Services are not libelous, do not slander or defame any person or individual, do not contain obscene or pornographic material, and are not illegal to use;
6.4 Publisher shall comply with all applicable consumer and marketing laws and regulations;
6.5 RIM has no responsibility whatsoever for the Applications, Publisher Content, Publisher Services or any changes thereto; RIM is simply transmitting Ad Content at Publisher’s direction and Publisher covenants that it shall not represent otherwise to any person;
6.6 The BBAS Service cannot transmit Ad Content to BlackBerry Devices that are unreachable (i.e., out of cellular coverage, powered off, etc.), and Publisher covenants that it shall not represent otherwise to any person;
6.7 All Publisher Content, Publisher Services and Applications are exclusively owned or controlled by Publisher or Publisher otherwise has all of the rights, including, without limitation, all Intellectual Property Rights, necessary to permit RIM to transmit Ad Content to Applications;
6.8 Publisher has not received notice of and is not otherwise aware of any alleged claims that the Publisher Content, Publisher Services or Applications infringe the Intellectual Property Rights or other rights of any third parties. Publisher covenants that should it receive any such notice or otherwise becomes aware of any such claim, Publisher shall notify RIM immediately. If such notice or claim arises RIM reserves the right, but has no obligation, to require Publisher to change the Applications, Publisher Content and/or Publisher Services;
6.9 Publisher shall comply with all applicable laws and regulations relating to privacy and data protection and, without limiting the foregoing, shall ensure it has all necessary consents prior to disclosing to RIM any Personal Information; and
6.10 Publisher, all Applications, Publisher Content and Publisher Services shall comply with the Acceptable Applications Policy.
7. Indemnities. Publisher shall indemnify, defend, and hold harmless RIM and RIM’s affiliates, suppliers, successors, agents, authorized distributors and assigns, and each of their respective directors, officers, employees, and independent contractors (each a “RIM Indemnified Party”) from any damages, losses, costs, settlement fees, and expenses (including without limitation attorney fees and costs) incurred directly or indirectly by a RIM Indemnified Party as a result of Publisher’s breach of this Agreement and/or as a result of any third party claims, suits, proceedings, judgments, settlements, and causes of action: (a) for alleged or actual infringement of the Intellectual Property Rights of any third parties relating in any manner to any Applications, Publisher Content, Publisher Services, and/or Publisher Marks, including the combination of any Applications, Publisher Content, and/or Publisher Services with any hardware, software, system, or service, (b) based on any representations or misrepresentations made by Publisher, including without limitation any representations or misrepresentations made by Publisher relating to any Applications, (c) arising from or relating to damage to or interruption of the BBAS Service or RIM infrastructure caused by any act or omission of Publisher or by an Application, Publisher Content, and/or Publisher Service, or (d) arising from or relating to the performance or non-performance of any Applications, Publisher Content and/or Publisher Services, the use or distribution thereof, or any act or omission of Publisher (including without limitation claims relating to loss of or damage to tangible or other property, personal injury or death, loss of business revenue or earnings, corruption or loss of data, lost profits, loss caused by delay, failures to realize expected savings, failures to receive or transmit any data, or the use or inability to use any Applications, Publisher Content and/or Publisher Services), except to the extent arising out of RIM’s breach of this Agreement. In the event of becoming aware of any such claim a Party shall: (i) notify the other Party promptly of such claim; (ii) provide to the other Party all information and assistance reasonably requested in relation to such claim, at Publisher’s expense; and, (iii) not admit any liability or agree to any settlements by or on behalf of the other Party with respect to such claims without the prior written consent of the other Party, which shall not be unreasonably withheld, conditioned, or delayed. If RIM, at any time, has a reasonable basis to believe that Publisher cannot or may not be able to fulfill Publisher’s obligations under this Section 7, then, without limiting Publisher’s obligations under this Section 7, RIM shall be entitled to provide notice to Publisher that it has decided to assume the defense of such claim, and thereafter to assume control of the defense and/or settlement of any such claim. 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.
8. Limitations of Liability
8.1 Publisher acknowledges and agrees that wireless communications are, by their nature, not fail proof, and that the BBAS Service is not suitable 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 services, air traffic control, and life support or weapons systems. Publisher further acknowledges that RIM is providing the BBAS Service on an “AS IS” and “AS AVAILABLE” basis, and that RIM makes no representations or warranties concerning the timeliness, accuracy, or availability of the BBAS Service and there are no service level guarantees whatsoever in respect of the BBAS Service. All conditions, endorsements, guarantees, representations, and warranties of any kind, express or implied, including without limitation, any conditions, endorsements, guarantees, representations, or warranties of merchantability, fitness for a particular purpose or use, performance, compatibility, title, or non-infringement arising from a statute or custom or a course of dealing or usage are hereby disclaimed and excluded. The parties acknowledge and 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.
8.2 Other than in respect of RIM’s payment obligations hereunder, RIM and RIM’s affiliates, and each of their respective suppliers, authorized distributors, successors, assigns, agents, directors, officers, employees, and independent contractors, shall have no liability whatsoever to Publisher in connection with this Agreement regardless of the type or nature of the damages and whether or not such damages could reasonably be foreseen or their likelihood disclosed to Publisher.
8.3 The foregoing limitations, exclusions, and disclaimers shall apply 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.
8.4 Some jurisdictions do not allow limitations or exclusions of certain damages and/or implied conditions or warranties. The limitations, exclusions, and disclaimers set forth in this Agreement 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, in which case in no event shall the liability hereunder (or otherwise in connection with the BBAS) of RIM or RIM’s affiliates, or of their respective suppliers, authorized distributors, successors, assigns, agents, directors, officers, employees, or independent contractors, exceed one-thousand dollars (US$1000) in the aggregate.
9. Terms and Termination
9.1 Term. This Agreement shall come into full force and effect as of the Effective Date and, unless terminated earlier pursuant to the termination provisions hereof or unless mutually terminated in writing by the Parties, shall continue for an initial term of one (1) year from the Effective Date (“Initial Term”). After the Initial Term, this Agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term”) unless earlier terminated in accordance with the provisions of this Agreement (the Initial Term and any Renewal Terms are collectively the “Term”).
9.2 Termination for Convenience by RIM. RIM shall have the right in it sole discretion to terminate this Agreement for any or no reason whatsoever upon providing written notice to Publisher (which may include providing a notice in the BBAS Publisher Portal).
9.3 Termination for Cause by RIM. If Publisher is in breach of any provision of this Agreement or the SDK Agreement, or the licensor of any Application, as applicable, is in breach of any provision of the SDK Agreement, or if RIM and Publisher, or the licensor of any Application, as applicable, are no longer parties to an SDK Agreement, RIM may provide notice of such breach to Publisher, and if Publisher has not cured such breach within ten (10) business days of delivery of such notice by RIM, RIM may elect to terminate this Agreement at any time thereafter, and such termination will be effective immediately upon delivery of notice by RIM. This Section 9.3 shall not in any way limit RIM’s right to terminate this Agreement pursuant to Section 9.2.
9.4 Termination for Convenience by Publisher. Publisher may terminate this Agreement by delivering written notice of such termination to RIM at least sixty (60) days prior to the end of the Initial Term or Renewal Term, as applicable, and such termination will be effective at the end of such Initial Term or Renewal Term, as applicable.
9.5 Automatic Termination. If no Applications are enabled for BBAS Service at the end of the Initial Term or a Renewal Term this Agreement shall automatically terminate at the end of such Initial Term or Renewal Term, as applicable.
9.6 Effect of Termination. On termination of this Agreement: (a) all licenses granted by RIM under this Agreement shall terminate; (b) RIM may immediately cease to provide the BBAS Service in respect of Applications; and (c) RIM may continue to exercise the rights granted herein with respect to Publisher Marks for a period not to exceed thirty (30) days from any termination of this Agreement. Notwithstanding the foregoing, in no event will RIM be required to remove any Publisher Marks or references thereto, or to any Applications, in any marketing materials, websites, or packaging that may be in RIM’s inventory or channels or in the public domain at the time of termination.
10. General Terms
10.1 Amendments. RIM reserves the right to make changes to the provisions of this Agreement and/or the Acceptable Applications Policy from time to time. In the event of any revisions to this Agreement that are material in nature, RIM will provide Publisher with written notice to the most recent address or email address provided by Publisher to RIM, and RIM may provide notice of other revisions by posting the changes on the BBAS Publisher Portal. Changes to reflect business practices or legal requirements, or changes in legal requirements, shall become effective as of the date RIM provides notice of such changes to Publisher. All other changes shall become effective ninety (90) days after the date RIM provides notice of such changes to Publisher.
10.2 Notice. If RIM wishes to deliver notice to Publisher, except as set out in this Agreement, it must do so in writing by using any of the addresses (postal or email) Publisher provides to RIM, and must deliver the notice by courier or email to Publisher. Notice shall be effective and deemed delivered upon receipt provided that if any such notice fails to reach Publisher because the information provided to RIM is not accurate or up-to-date, notice shall be deemed sufficiently delivered on the date it was sent. If Publisher wishes to give RIM notice of any kind, Publisher must do so in writing and deliver it by courier which provides a written proof of delivery to RIM, addressed to RIM’s legal department at 295 Phillip Street, Waterloo, Ontario, N2L 3W8, and notice shall be effective upon RIM’s receipt of same.
10.3 Waiver. Neither Party is to be deemed to have waived or forfeited any right under this Agreement, whether on the basis of failure, delay, or any other legal or equitable doctrine, unless such waiver is made in writing signed by an authorized signatory of the Party against whom the waiver is sought to be enforced. Waiver of any provision, or any breach of any provision, of this Agreement in one instance shall not constitute a waiver as to any other instance.
10.4 Relationship. This Agreement does not create any agency, joint venture or partnership relationship between the Parties.
10.5 Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance or termination of this Agreement. Without limiting the generality of the foregoing, the provisions of Sections 2.2, 2.5, 2.8, 3, 4.2, 4.3, 5.1, 5.2, 5.3 (pursuant to Section 9.6), 5.5, 5.6, 6, 7, and 8 shall survive the termination of this Agreement.
10.6 Severability. To the extent any provision or portion thereof of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that provision or portion thereof will not affect: (a) the legality, validity or enforceability of the remaining provisions of this Agreement; or (b) the legality, validity or enforceability of that provision in any other jurisdiction, and that provision (or portion thereof) will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
10.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Publisher may not assign this Agreement or any of its respective rights or obligations hereunder without the prior written permission of RIM. RIM may, without notice to Publisher, assign this Agreement. Further, RIM may perform all obligations, if any, to be performed by RIM under this Agreement directly or may have some or all obligations performed by its affiliates, agents, and/or independent contractors. Any purported assignment in violation of the foregoing is void ab initio and of no force or effect.
10.8 Governing Law. This Agreement is to be governed by and construed under the laws of the State of New York, excluding any body of law governing conflicts of law. Publisher 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 irrevocably consents and attorns to the non-exclusive jurisdiction of the courts of the State of New York for any claims arising out of or related to this Agreement. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising out of or relating to this Agreement.
10.9 Entire Agreement. This Agreement, together with all other documents referenced herein, constitutes the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, representation, warranties, undertakings, collateral agreements, or agreements between the Parties other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous undertakings, communications, representations, warranties, undertakings, collateral agreements, and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and no Party has relied on any of the foregoing in agreeing to enter into this Agreement.
10.10 Counterparts. This Agreement may be executed in two or more identical counterparts, facsimile counterparts, or electronic counterparts, each of which when executed by a Party shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.
10.11 Execution and Signature Date. Signing of this Agreement and transmission of the signed Agreement by facsimile or electronic document transfer will be acceptable and binding upon the Parties hereto. This Agreement shall be binding when the Agreement has been signed once by each of the Parties and shall take full force and effect as of the Effective Date regardless of any other dates appearing in the signature block. Subsequent signatures on additional copies, or the lack thereof, shall not have any impact on the enforceability of this Agreement.