blackberry app world docs
TRANSCRIPT
Robert Pierce | Tech Law | 4763 Guerneville Road, Santa Rosa, California 95401 | Tel: 415.685.3108 [email protected] | www.piercespace.com
Contents
1. BlackBerry App World Vendor Agreement 2. BlackBerry SDK License Agreement 3. BlackBerry App World Vendor Guidelines 4. Reseller Vendor Agreement (Digital River) 5. Reseller Vendor Agreement (Bango) 6. BlackBerry Payment Service SDK License Terms 7. In-app Product Addendum to Reseller Vendor Agreement
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BLACKBERRY APP WORLD™ VENDOR AGREEMENT
THIS BLACKBERRY APP WORLD VENDOR AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY AND BETWEEN YOU INDIVIDUALLY, IF YOU ARE AGREEING TO IT IN YOUR OWN CAPACITY, OR IF YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER ORGANIZATION, BETWEEN THE ENTITY FOR WHOSE BENEFIT YOU ACT (IN EITHER CASE, “VENDOR”) AND RESEARCH IN MOTION LIMITED (“RIM”), (RIM AND VENDOR ARE COLLECTIVELY THE “PARTIES” AND INDIVIDUALLY A “PARTY”). BY CLICKING ON THE APPROPRIATE BUTTON BELOW YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. PLEASE NOTE THAT YOU MUST BE OVER THE AGE OF MAJORITY UNDER THE LAWS OF YOUR JURISDICTION TO ENTER INTO THIS AGREEMENT.
If Vendor has previously entered into the BlackBerry Application Storefront Developer Evaluation Agreement and/or the Developer Application Evaluation Agreement with RIM, this Agreement replaces and supersedes such agreements.
1. Definitions
1.1 “Administration Service Fee” means the fee specified on the Vendor Portal from time to time which Vendor is required to pay to RIM in order to: (a) apply to become a BlackBerry App World vendor; and (b) submit for evaluation and testing the Applications it wishes to have made available through the BlackBerry App World.
1.2 “Application” means a commercially released object code version (including without limitation any third party software contained therein) of a software application (or other downloadable content, identified in the Vendor Portal as types of products which may be made available through the BlackBerry App World) that Vendor submits, and includes both Free Applications and Paid Applications.
1.3 “Application Revenue” means all revenue received by Vendor with respect to an Application distributed to an End User through the BlackBerry App World by RIM, and any updates and upgrades thereto whether distributed through the BlackBerry App World or otherwise, including without limitation revenue derived directly or indirectly, through the use of the Application by an End User, with respect to any content made available within or by an Application, subscription fees, transactions and microtransactions, but excluding: (a) taxes, refunds and chargebacks; (b) any fees paid by an End User to an MoR to obtain a copy of the Application through an MoR Kiosk; and (c) any advertising revenue derived from an Application.
1.4 “BlackBerry App World” means the RIM owned and constructed storefront portal through which Applications, the My World repository, and certain services are made available to End Users.
1.5 “BlackBerry App World Branding Guidelines” means the BlackBerry App World branding guidelines, as amended from time to time and made available on the Vendor Portal.
1.6 “BlackBerry App World Guidelines” means the criteria used to evaluate Applications, as amended from time to time and made available on the Vendor Portal.
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1.7 “Carrier Networks” means a carrier’s wireless telecommunications networks in a specified country, which Vendor designates through the Vendor Portal as carrier networks on which wireless handhelds, to which Applications are downloaded, may be activated (and includes any telecommunications networks owned or operated by any other telecommunications carriers in other regions or countries with whom such telecommunications carrier has a roaming agreement).
1.8 “Dynamic License Key” means a License Key generated based on a dynamic license key process and data supplied by RIM to Vendor.
1.9 “End User” means any person, organization or entity which acquires or attempts to acquire an Application through the BlackBerry App World for their own personal use on a RIM proprietary software platform and not for the purposes of resale.
1.10 “End User Data” means personally identifiable information about an End User, and information that can be used, together with other information or data, to personally identify an End User.
1.11 “Free Applications” means an Application for which no fee is charged the End User for the distribution of the Application through the BlackBerry App World.
1.12 “Kiosk” means a store or other business operated within the BlackBerry App World.
1.13 “License Key” means a digital key required to enable the use of a Paid Application by an End User.
1.14 “MoR” means any entity, other than RIM, that operates or otherwise controls a Kiosk, and in the case of Paid Applications made available through such Kiosk, acts as the merchant and/or seller of record for sales of such Paid Applications and may provide associated ecommerce functionality to support the sale of such Paid Applications.
1.15 “MoR Kiosk” means a Kiosk operated or otherwise controlled by an MoR.
1.16 “My World” has the meaning defined in Section 2.1.
1.17 “Paid Applications” means Applications for which a fee is charged in relation to the distribution or sale of the Application through an MoR Kiosk on the BlackBerry App World.
1.18 “RIM Marks” means the RIM product iconography (including without limitation smartphone imagery), the trademarks BlackBerry and BlackBerry App World, the Get It At BlackBerry App World logo and any other marks set out in the BlackBerry App World Branding Guidelines or otherwise provided to Vendor by or on behalf of RIM.
1.19 “Taxes” means all taxes, levies, imposts, customs, duties, fees or similar charges of any nature, including sales or use tax, excise tax, stamp tax or duty, any withholding tax or value added tax, imposed by any jurisdiction or governmental authority, except solely for those based on RIM’s net income.
1.20 “Vendor Content” means any information provided by Vendor to RIM, by means of the Vendor Portal or otherwise, including without limitation indirectly through an MoR.
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1.21 “Vendor Marks” means the trademarks, logos, icons, screenshots, Application name, Vendor name and any other marks as provided by Vendor to RIM by means of the Vendor Portal or otherwise.
1.22 “Vendor Portal” means the portal provided by RIM through which Vendor applies for registration as a BlackBerry App World vendor and submits Applications it desires to have made available through the BlackBerry App World.
1.23 “BlackBerry Tablet OS” means RIM proprietary software designed and licensed for use on solely the BlackBerry PlayBook.
2. BlackBerry App World Requirements 2.1 Description of the BlackBerry App World The BlackBerry App World is a RIM proprietary storefront comprised of various Kiosks established to serve as a channel for vendors to have applications and other downloadable content (identified on the Vendor Portal from time to time as the type of products that may be made available through the BlackBerry App World) resold and/or distributed to End Users. RIM also offers the My World repository to End Users, at no charge, to enable them to reinstall Paid Applications purchased and Free Applications obtained through the BlackBerry App World on their wireless handheld devices in accordance with the My World rules, and requires Vendors to grant to RIM and End Users the rights necessary to facilitate this repository. RIM also enables End Users to provide feedback on Applications available through the BlackBerry App World, and Vendor acknowledges and agrees that RIM shall have no liability for such End User feedback or the manner in which such End User feedback is used and/or displayed. 2.2 Additional Agreements for Paid Applications RIM does not act as the merchant and/or seller of record for Paid Applications, and if Vendor wishes to make Paid Applications available through the BlackBerry App World then: (a) these must be made available through an MoR Kiosk; and (b) Vendor will be required to enter into an agreement with one or more MoRs, including the MoR operating that Kiosk. For the avoidance of doubt, nothing in any such agreement shall amend, supersede or otherwise affect the provisions of this Agreement. The payment methods for Vendor in relation to Paid Applications will be determined by the MoR. As of March 2009, Vendor must have an account in good standing with PayPal Inc. in order to be paid the amounts it is due in relation to the resale or distribution of Paid Applications on MoR Kiosks. 2.3 Vendor Registration and Application Submission If Vendor wishes to use the BlackBerry App World as a channel for an Application, Vendor must apply through the Vendor Portal for registration as a BlackBerry App World vendor. In order to register, Vendor must pay the Administration Service Fee as set forth in the Vendor Portal from time to time, and unless another payment method is expressly authorized by RIM either on the Vendor Portal or otherwise, Vendor must make this payment(s) through their account with PayPal Inc. RIM shall notify Vendor whether Vendor has been accepted by RIM as a BlackBerry App World vendor, as determined in RIM’s sole discretion. If Vendor’s registration is rejected, the Administration Service Fee will be refunded to Vendor by RIM. If RIM notifies Vendor of RIM’s acceptance of Vendor as a BlackBerry App World vendor then: (a) that notice shall constitute RIM’s acceptance of this Agreement, which shall thereupon become a binding
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agreement between RIM and Vendor; and (b) Vendor may then submit Applications through the Vendor Portal. Vendor shall submit only the latest production release version of Applications that comply with the BlackBerry App World Guidelines. Vendor must provide all information about each Application reasonably requested by RIM and any applicable MoRs through the Vendor Portal or otherwise, including without limitation any requested Vendor Content, Vendor’s suggested Application category and the hardware, software and system requirements for each Application. The categorization of an Application shall be in RIM’s sole discretion. RIM may from time to time request additional information and/or Vendor Content, and may require Vendor to supply this additional information and/or Vendor Content for Applications that have already been submitted by Vendor. 2.4 Application Evaluation and Acceptance RIM may test, or have tested, and will evaluate Applications for their suitability as applications made available by RIM through the BlackBerry App World. RIM may also perform similar testing and evaluation services as a service provider for the MoRs. Such testing is for RIM’s and/or an MoR’s internal use only, and shall not be used as a representation by Vendor or any third party as to the performance or quality of an Application. RIM’s testing and evaluation of Applications shall include without limitation assessing whether Applications comply with the BlackBerry App World Guidelines, and RIM reserves the right to test and evaluate each update, upgrade and version of an Application. Upon receiving notification from RIM that its Application has been accepted, Vendor may initiate the publication of that Application on the applicable Kiosk on the BlackBerry App World at the time it wishes, by indicating its intention to do so on the Vendor Portal. Subject to the terms of this Agreement, RIM will make the Application available to End Users within a commercially reasonable period of time after such initiation by Vendor. 2.5 Application Availability Vendor may suspend the availability of an Application at any time by indicating its decision to do so on the Vendor Portal, and RIM shall arrange for the removal of the Application from the BlackBerry App World within a commercially reasonable period of time from RIM’s receipt of notification from Vendor (as set out above) of its decision. However, Vendor acknowledges and agrees that RIM shall not have any obligation to remove a suspended Application from the My World repository of Applications for any End User and that nothing herein will affect an End User’s right to continue to use an Application it has rightfully acquired through the BlackBerry App World. RIM and/or an MoR may, at any time, in their sole discretion and for any reason whatsoever, including without limitation a breach of the BlackBerry App World Guidelines, excessive returns or chargebacks associated with an Application, a payment processor’s refusal to provide services in relation to an Application, Vendor’s failure to meet the support obligations set out in this Agreement, or a third party claim made in relation to an Application, with or without advance notice to Vendor, cease to make available any Applications through the BlackBerry App World or a specific Kiosk, at all, or in part, including only in specified jurisdictions, and nothing in this Agreement shall constitute RIM’s or any MoR’s commitment to make available, or to continue to make available, Vendor’s Applications. If RIM does not provide Vendor with notice of the removal prior to it taking place, RIM shall do so, by means of the Vendor Portal or otherwise, within a commercially reasonable period following the removal. Vendor further acknowledges and agrees that RIM reserves the right, but has no obligation, to remove an Application from an End User wireless handheld device and/or disable (in whole or in part) the operation of an Application, and the End User’s access to such Application through My World, if the End User’s payment for that Application has been refunded by or charged back to the
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applicable MoR, or if the End User has engaged in fraud, or as provided in the BlackBerry App World Guidelines (including without limitation a breach thereof). Notwithstanding the foregoing, Vendor further acknowledges and agrees that RIM may, at any time, in RIM’s sole discretion and for any reason whatsoever, remove an Application from an End User’s wireless handheld device and/or remove such Application from the End User’s My World repository. 3. Licenses 3.1 Application License Vendor hereby grants to RIM a non-exclusive, worldwide royalty-free license to: (a) use, reproduce, have reproduced, make and have made Applications submitted to the Vendor Portal, for the purposes of evaluating and testing Applications on RIM’s own behalf or on behalf of MoRs, and to permit third parties to do so; and (b) use, reproduce, have reproduced, make, have made, import, distribute, sell and offer to sell (i.e. in the case of Free Applications to distribute, market and otherwise promote) through the BlackBerry App World Free Applications to End Users with wireless handhelds activated on Carrier Networks and to End Users with any other RIM proprietary wireless handhelds that are distributed by RIM without the capability of operating on a wireless cellular network; (c) use, reproduce, have reproduced, make, have made, import, offer to sell and distribute Applications for the purposes of providing delivery, fulfillment and/or other services to MoRs that are making Applications available through their MoR Kiosk; and (d) use, reproduce, have reproduced, make, have made, import, and distribute Applications to the extent necessary to enable the My World digital repository (as defined from time to time) for Applications made available through the BlackBerry App World, and to permit third parties to perform the activities listed above on behalf of RIM. The rights (including the license rights) and obligations under this Agreement shall extend to RIM’s affiliates. RIM shall be liable for any breach of this Agreement by any of its affiliates.
3.2 License Key Generation For Paid Applications Vendor shall be required to indicate to RIM through the Vendor Portal whether, and what type of, License Keys are required for an Application, and shall provide the appropriate mechanisms as described in the Vendor Portal to provide RIM the appropriate License Keys. In order to enable the generation of a Dynamic License Key RIM shall supply to Vendor data, which may include End User Data, which Vendor shall only use for the purpose of generating a Dynamic License Key. For each Paid Application, Vendor shall generate a License Key for each wireless handheld device on which an End User is authorized to use such Paid Application, including wireless handheld devices on which End Users are authorized to download and install Applications by means of the My World repository. 3.3 License Restrictions Vendor acknowledges and agrees that Applications may be downloaded by End Users with wireless handhelds operating on Carrier Networks and that Carrier Networks includes not only the wireless networks selected by the Vendor, but also on the wireless networks operated by the roaming partners of these carriers. If Vendor does not have the rights necessary to distribute an Application (and any portion thereof) either globally, or at least to End Users with wireless handhelds activated on both the selected and roaming wireless networks, and to permit others to do so, or Vendor is otherwise unable to control the jurisdictions in which End Users may download and/or use that Application, then Vendor must not make, or seek to make, that Application available through the BlackBerry App World.
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3.4 Application EULA Vendor shall include the end user license agreement (“Application EULA”) under which Vendor wishes to license its Applications within such Applications for the particular jurisdictions in which the Application is to be made available. The Application EULA shall at a minimum include provisions excluding RIM, airtime service providers (which for clarity includes telecommunications carriers), and any MoR making the Application available through its Kiosk, from any liability whatsoever in relation to Applications made available through the BlackBerry App World (not necessarily by name, but at least by role, e.g. channel partners and associated service providers) including without limitation in relation to the sale, distribution or use thereof, or the performance or non-performance of Application, and shall make RIM, airtime service providers, and any such MoR third party beneficiaries to the Application EULA in respect of these provisions. The Vendor must also provide End Users with at minimum notice of any limitations on the countries and/or Carrier Networks in or on which the Application may be installed and/or used. Vendor acknowledges and agrees that neither RIM nor any MoR is under any obligation to enforce in any manner the provisions of the Application EULA, neither RIM nor any MoR shall be responsible for any breach of the Application EULA or any other agreement between Vendor and an End User. Any provision of the Application EULA inconsistent with the provisions of this Agreement shall not have any force or effect in respect of Applications made available to End Users through the BlackBerry App World. Vendor hereby acknowledges and agrees that notwithstanding any terms or conditions in the Application EULA: (a) RIM and/or MoRs may make it a condition of their agreements with End Users, that an Application made available through the BlackBerry App World, be downloaded, installed and used only on a RIM proprietary handheld software platform operating on a wireless handheld device; and (b) that End Users may reinstall copies of Applications on to their wireless handheld devices from their My World repository in accordance with the then current rules, features and functionality of the My World repository. 3.5 Vendor Marks License Vendor hereby grants to RIM a non-exclusive, royalty-free license during the Term to use, reproduce and display the Vendor Marks and Vendor Content for the purposes of: (a) operating the BlackBerry App World, including without limitation providing delivery, fulfillment and/or other services as fulfillment agent of any applicable MoR; (b) RIM’s marketing and promotion of the BlackBerry App World and Applications, including without limitation promotional offers, gift cards and the like; and (c) RIM’s distribution, directly and indirectly through third parties, of marketing and promotional materials displaying Vendor Marks and/or Vendor Content. RIM’s uses of the Vendor Marks as set out in subparagraphs (b) and (c) in this Section must be approved by Vendor in writing in advance of each use that is materially different from RIM’s use of the Vendor Marks for the purposes of operating the BlackBerry App World, including without limitation providing delivery, fulfilment and/or other services as fulfillment agent of any applicable MoR. Any such required Vendor consent shall not be unreasonably withheld or delayed and such consent shall be deemed given if Vendor does not provide notice to RIM of approval or non-approval within five (5) business days of Vendor’s receipt of RIM’s written request. RIM agrees that all of RIM’s uses of the Vendor Marks shall inure to the benefit of Vendor. Without limiting the foregoing, RIM will not: (i) modify the Vendor Marks, except as expressly approved in writing by Vendor in advance; (ii) combine the Vendor Marks with any
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other marks or create any composite marks; or (iii) do anything that would compromise Vendor’s rights in and to the Vendor Marks. 3.6 RIM Marks License RIM hereby grants to Vendor a non-exclusive, non-transferable, royalty-free license within the regions and countries in which RIM has commercially launched the BlackBerry App World and during the Term to use, reproduce and display the RIM Marks solely in accordance with the BlackBerry App World Branding Guidelines and solely for the purposes of Vendor’s marketing and promotion of the BlackBerry App World and Applications for use on a RIM proprietary software platform, including without limitation promotional offers, gift cards and the like. Vendor’s uses of the RIM Marks must be approved by RIM in writing in advance of each use that is materially different from a previously approved use. Vendor agrees that all of Vendor’s uses of the RIM Marks shall inure to the benefit of RIM. At RIM’s request, Vendor shall supply RIM with specimens displaying Vendor’s uses and/or intended uses of the RIM Marks. Without limiting the foregoing, Vendor will not: (i) modify the RIM Marks, except as expressly approved in writing by RIM in advance; (ii) combine the RIM Marks with any other marks or create any composite marks; or (iii) do anything that would compromise RIM’s rights in and to the RIM Marks. 3.7 Web Linking License RIM hereby grants to Vendor a non-exclusive, non-transferable, royalty-free license during the Term to establish within Vendor’s website a hypertext link to the URL for the BlackBerry App World. Such hypertext link shall be either a text link or a logo link solely in accordance with the BlackBerry App World Branding Guidelines. Vendor shall regularly maintain its website such that its content remains current, accessible and in good taste. 4. Intellectual Property 4.1 Intellectual Property Rights Vendor 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 Vendor intellectual property.
4.2 Feedback
RIM wishes to ensure the BlackBerry App World is a premier channel for vendors. In order to enable RIM to do so Vendor hereby grants to RIM (with respect to any Vendor Content that identifies any ideas, suggestions, changes, concepts, comments and other feedback relating to the Vendor Portal, BlackBerry App World and related products, processes and programs (collectively “Feedback”)) a non-exclusive, worldwide, royalty-free, sub-licensable and non-revocable license to develop, make, have made, reproduce, have reproduced, import, modify, make derivative works of, sell, and offer to sell Feedback as part of RIM’s technology, products or services. Vendor shall not knowingly provide RIM with any Feedback that is subject to third party intellectual property rights or that includes or reveals any confidential information of Vendor or of any third party.
4.3 No Reverse Engineering
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Except to the extent that this prohibition is precluded by law, RIM may not modify any Application without the Vendor’s express written permission, and may not reverse engineer, disassemble or decompile any Application.
4.4 Independent Development Notwithstanding any other provision of this Agreement, Vendor acknowledges and agrees that RIM is also a software developer and licensee 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. Application Revenue Fee 5.1 Application Revenue Fee Vendor shall pay to RIM thirty percent (30%) of Application Revenue (which as defined in this Agreement excludes any fees paid by an End User to an MoR to obtain a copy of an Application through an MoR Kiosk) (“Application Revenue Fee”) on a calendar quarterly basis in arrears, payable within thirty (30) days of the end of each calendar quarter. Vendor shall provide to RIM a monthly report outlining calculation of the Application Revenue Fee for the applicable month in accordance with United States generally accepted accounting principles. Vendor shall pay the Application Revenue Fee in United States dollars by electronic funds transfer as directed by RIM to Vendor in writing. 5.2 Audit During the Term of this Agreement Vendor agrees to keep records, in accordance with United States generally accepted accounting principles, relating to the calculation of the Application Revenue Fee. To verify such calculations RIM may, during the Term and no more than one (1) time per calendar year, at its sole cost and expense, request such records and Vendor shall provide such records to RIM. If any such audit demonstrates that Vendor has underpaid the Application Revenue Fee by at least five percent (5%) and at least two-thousand and five-hundred dollars ($2,500) in a given quarter, Vendor shall immediately pay to RIM the reasonable costs of such audit (but not to exceed ten thousand dollars ($10,000)) and the amount of such underpayment, and RIM shall be entitled to perform such audit two (2) times per calendar year. Further, RIM may appoint a third party, selected at RIM’s sole discretion, to perform such audit. 5.3 Taxes Vendor shall be responsible for and shall pay all Taxes due under or in relation to this Agreement. All amounts payable by Vendor to RIM under or in relation to this Agreement are exclusive of any Taxes that may be assessed by any jurisdiction or governmental authority, whether based on gross revenue, the delivery, possession, use or commercial distribution of Applications or any service, or otherwise. If Vendor is required to withhold any Taxes from payments owing to RIM under this Agreement: (a) the amount of the payment due will be automatically increased to totally offset such Taxes, so that the amount actually remitted to RIM, net of all Taxes required to be withheld, equals the amounts invoiced or otherwise due; and (b) Vendor shall notify RIM within thirty (30) days in the event such payments have been assessed and/or paid. Vendor agrees to indemnify and hold harmless RIM from and against any liability (either directly or by way of deduction, withholding or otherwise) for any present or future taxes.
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6. Reporting RIM will, from time to time, provide Vendor with aggregated data on downloads of Applications made available through the BlackBerry App World. Notwithstanding the obligations set out in Section 9, Vendor acknowledges and agrees that RIM can obtain and publicly disclose aggregate data relating to the distribution of Applications through the BlackBerry App World. 7. Support Vendor 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 made available through BlackBerry App World, which shall include at minimum a warranty for each Application consistent with the laws in the jurisdiction of the End User. RIM shall provide End Users with support in downloading Applications made available through the BlackBerry App World, but shall not be responsible for any support obligations with respect to these Applications. Vendors will provide all reasonable support to RIM to allow RIM to provide this support, including notification of any Application issues which may result in the failure of a download or any changes to compatibility requirements. Vendor must provide RIM and End Users, by means of the Vendor Portal or otherwise, with a support contact email address and may also provide a support URL, to enable End Users to obtain support for Applications. Vendors must provide RIM with at least thirty (30) days’ notice of any change to the Vendor’s support contact information. RIM may provide Vendor support contact information directly to End Users and/or service providers and may publish this information within the BlackBerry App World, and through RIM training and support tools including self service web forums. Vendor acknowledges and agrees that for Paid Applications the applicable MoR is responsible for and shall have sole discretion in setting and applying the returns policy for Paid Applications made available through that MoR’s Kiosk. 8. Privacy 8.1 Consent to Collection of Information By Vendor submitting personal information relating to Vendor and/or its employees and/or independent contractors (which may or may not, depending on applicable law, include, without limitation, a name, address, email address, authorized payment method account details, verification of identification as specified by RIM, and/or telephone number), to RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoRs, Vendor consents to the collection, use, processing, transmission, and/or disclosure of such information by RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoRs, and Vendor represents, warrants and covenants to RIM that it has obtained all consents necessary under applicable law from individuals to disclose their personal information to RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoRs and for RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoRs, to collect, use, process, transmit, and/or disclose such personal information, for: (a) the internal use of RIM and its affiliates, including, without limitation: (i) understanding and meeting Vendor’s needs and preferences; and (ii) managing and developing RIM’s business and operations; (b) any purpose related to the provision and/or Vendor’s use of the BlackBerry App World, Vendor Portal and/or related processes, programs, products and/or services; (c) any purposes permitted or required by any applicable law; and/or (d) any of the other purposes which are set out in RIM’s then current
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privacy policy, which may be viewed at http://www.blackberry.com/legal/privacy.shtml. The collection, use, processing, transmission, and/or disclosure of the personal information described above for the purposes noted above are in strict accordance with RIM’s privacy policy and applicable privacy laws. RIM reserves the right to modify its privacy policy from time-to-time in its sole discretion and Vendor agrees to regularly review RIM’s privacy policy for any updated information. Vendor agrees to inform all individuals whose personal information Vendor provides to RIM that they may have rights to access and correct their personal information under applicable laws and regulations.
8.2 Privacy and Data Protection
To the extent RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoR, provide Vendor with any End User Data or personal information, Vendor shall only use such End User Data or personal information in accordance with the purpose for which it was provided to Vendor under this Agreement, including without limitation to enable Dynamic License Key generation. Further, Vendor agrees to: (a) comply with all applicable privacy legislation and, to the extent it does not violate any applicable legislation, Vendor’s privacy policy (including without limitation with respect to any End User Data, including any End User Data made accessible to Vendor by RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoR or airtime service provider), which privacy policy shall be consistent with the privacy obligations set forth in the BlackBerry App World Guidelines; (b) use best efforts to ensure the confidentiality of End User Data via encryption or similar means; and (c) not use End User Data to offer any of Vendor products or services to End Users or any other party in violation of the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) or other applicable laws, rules or regulations. If Vendor provides End User Data to RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoR, Vendor represents and warrants that Vendor will have obtained any necessary consent from the End User to disclose the End User Data to RIM, its affiliates, agents and/or independent contractors, and/or any applicable MoR. Nothing in this Agreement shall restrict Vendor from using for Vendor’s lawful business purposes (in compliance with Vendor’s privacy policy, which privacy policy shall be consistent with the privacy obligations set forth in the BlackBerry App World Guidelines) any data provided to Vendor directly by an End User in connection with that End User’s registration or use of an Application, provided that in all events Vendor complies with all applicable privacy legislation and Vendor’s privacy policy, which privacy policy shall be consistent with the privacy obligations set forth in the BlackBerry App World Guidelines.
9. Confidentiality Except for Application Revenue information there is no need for Vendor to provide to RIM any confidential information under this Agreement, and accordingly Vendor acknowledges and agrees that except as expressly set out in this Section 9, despite any confidentiality agreements between Vendor and RIM, RIM has no confidentiality obligations with respect to any information provided by Vendor to RIM under or in relation to this Agreement or the BlackBerry App World. Subject to RIM’s obligations as expressly set out in this Agreement, including those in Section 4.3, RIM shall have no confidentiality obligations with respect to the object code form of an Application or any Vendor Content. Other than as part of aggregated data or as required to enforce its rights under this Agreement, or as required by law, RIM will not disclose Application Revenue information to any third party other than Vendor, RIM’s affiliates and their respective professional advisors. 10. Vendor Representations, Warranties and Covenants
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Vendor hereby represents, warrants and covenants to RIM that: (a) the Vendor Content, including without limitation any information contained in any user documentation or marketing materials, is true, accurate, current and complete; (b) Vendor has the right and authority to enter into this Agreement and to grant to RIM the rights contemplated by this Agreement, and that doing so will not breach the terms of any other agreement to which Vendor is a party, or of which Vendor is otherwise aware; (c) Vendor is over the age of majority in his or her jurisdiction, as applicable; (d) all Applications that Vendor submits to RIM shall be submitted only in COD file format, except in the case of Applications for the BlackBerry Tablet OS in which case all such Applications that Vendor submits to RIM shall be submitted only in BAR file format; (e) each Application is developed and distributed under an agreement : (i) between RIM and the Vendor, or between RIM and the licensor of the Application, as applicable, that provides for the use of RIM’s BlackBerry Java Development Environment (JDE), BlackBerry Java SDK (formerly BlackBerry Java Development Environment (JDE) Component Package), BlackBerry Java Plug-in (formerly BlackBerry Java Development Environment (JDE) Plug-in for Eclipse), BlackBerry WebWorks Plug-ins (formerly BlackBerry Plug-in for Microsoft Visual Studio and BlackBerry Web Development Plug-in for Eclipse), BlackBerry WebWorks Packager, BlackBerry WebWorks SDK, BlackBerry Theme Studio, BlackBerry Tablet OS SDK for Adobe AIR, and/or BlackBerry Tablet OS Native SDK; and (ii) if applicable, in the case of themes, between Plazmic Inc. (Plazmic) and the Vendor, or between Plazmic and the licensor of the themes, as applicable, for the use of Plazmic’s Content Developer’s Kit (CDK); (in either case an “SDK Agreement”), that SDK Agreement remains in effect, and Vendor has not breached, and is not aware that the licensor of the Application, as applicable, has breached, any provision of that SDK Agreement; (f) all Applications are designed for installation by end users without further substantial support by the Vendor; (g) all Applications are generally available to the public by being sold, without restriction, from stock at retail selling points by electronic transactions; (h) if applicable, such cryptographic functionality cannot be easily changed by the end user (for clarification, if any Application contains code signing or code obfuscation to prevent the cryptographic functionality from being changed, the cryptographic functionality shall not be considered to be easily changeable by the end user); (i) all Applications are designed for general end user usage and are not designed, developed, customized or modified for specific customers such as military or government end users; (j) Applications shall not be capable of use in 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; and (k) Applications shall not contain, or be derived in any manner (in whole or in part), from any software, including without limitation open source software, that requires the disclosure or distribution of the source code of the Applications, or any portion thereof, by RIM, its agents or independent contractors, including without limitation by means of the BlackBerry App World, or that requires that any third party proprietary software contained within an Application be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making modifications or derivative works; (iii) reproduced and/or redistributed at no or minimal charge; (iv) permitted to be reverse engineered; or (v) otherwise distributed on terms that impede the ability to distribute and license such third party software as the licensor of such third party software sees fit; (l) each Application complies with all applicable laws, and without limiting the foregoing, no content within and/or made available directly or indirectly by means of that Application, is libelous, slanders or defames any person or individual, contains obscene or pornographic material, is illegal to use or otherwise violates the BlackBerry App World Guidelines in effect at the time of submitting each Application, as applicable, through the Vendor Portal, and Vendor shall comply with (and Vendor has not breached) the BlackBerry App World Guidelines; (m) Vendor has identified to RIM all restrictions, including without limitation restrictions related to the Carrier
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Networks in or on which Applications may be distributed and/or used; (n) to the best of Vendor’s knowledge the Vendor Content, Vendor Marks and Applications do not infringe the rights, including without limitation the intellectual property rights, of any third parties; (o) Vendor shall comply with all applicable consumer and marketing laws and regulations; (p) Vendor shall supply to End Users warranties for Applications and associated services in accordance with all applicable laws and regulations; (q) Vendor shall not submit any Applications through the Vendor Portal in respect of which RIM and/or its service providers would be required to obtain any government related export, import, use, supply and/or transfer permits; (r) Vendor has complied with all applicable laws and regulations (including obtaining all necessary classifications, permits, licenses, authorizations, approvals, and declarations (including all necessary export permits)) in relation to the development of the Applications and their distribution to and by RIM and/or a third party RIM designates; (s) the Applications are provided to RIM in object code format only; (t) Vendor is the owner or distributor of the Applications and has all rights necessary to make the Applications available through the BlackBerry App World with respect to the Carrier Networks and countries identified by Vendor in the Vendor Portal; (u) the Applications are designed for operation and use on a RIM proprietary software platform operating on wireless handheld devices. 11. Warranty Exclusions RIM IS PROVIDING ACCESS TO THE BLACKBERRY APP WORLD, THE VENDOR PORTAL AND ASSOCIATED PROGRAMS, PROCESSES, PRODUCTS, SERVICES AND RIM MARKS ON AN “AS IS” AND “AS AVAILABLE” BASIS. RIM MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR RELATED TO THE BLACKBERRY APP WORLD, THE VENDOR PORTAL OR ANY ASSOCIATED PROGRAMS, PROCESSES, PRODUCTS OR SERVICES OR THEIR PERFORMANCE OR THEIR FAILURE TO PERFORM.
12. Indemnification Vendor shall indemnify, hold harmless, and if requested by RIM defend, RIM, airtime service providers, RIM’s affiliates, agents, successors and assigns and their respective directors, officers, employees and independent contractors (each a “RIM Indemnified Party”) from any costs, damages, losses, settlement fees, and expenses (including without limitation attorney fees and disbursements) incurred directly or indirectly by a RIM Indemnified Party as a result of Vendor’s breach of this Agreement and/or as a result of any third party claim, suit, proceeding, judgment, settlement, or cause of action: (a) alleging the infringement, violation or misappropriation of any intellectual property right, including a patent, design, industrial design, copyright, trade secret or trademark or other proprietary right, by any Applications, Vendor Marks or Vendor Content or the use or distribution thereof, or the combination of any Applications with any other hardware, software, system, or service; (b) alleging libel, slander, or defamation related to any Applications or the use or distribution thereof; (c) alleging any injury, death or property or other damage arising from or related to the performance or non-performance of any Applications or the use or
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distribution thereof; (d) based on any representations or misrepresentations made by Vendor, including without limitation representations or misrepresentations made by Vendor relating to any Applications; or (e) otherwise related to or arising from any Applications or the use or distribution thereof. 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 Vendor’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 consent shall not be unreasonably withheld, conditioned or delayed. If RIM has requested Vendor to defend a claim, and RIM, at any time, has a reasonable basis to believe that Vendor cannot or may not be able to fulfill Vendor’s obligations under this Section 12, then, without limiting Vendor’s obligations under this Section 12, RIM shall be entitled to provide notice to Vendor that it has decided to become the defending Party, and thereafter to assume control of the defense and/or settlement of any such claim. If a RIM Indemnified Party is required to indemnify any third party (including without limitation, an MoR or airtime service provider) in respect of a claim made against that third party in relation to any of Vendor’s Applications, any claim covered by that indemnity shall be deemed to be a third party claim made against RIM and covered by this provision. Once RIM notifies Vendor that it will be seeking an indemnity, unless otherwise expressly agreed in writing, all communications (including the notice) will be deemed confidential information of RIM, which may not be disclosed by Vendor to any third party, other than Vendor’s legal advisors, without the prior express written permission of RIM, and in addition, all communications in respect of any such claim shall be subject to common interest privilege. If a claim hereunder brought against an airtime service provider is also a claim with respect to which RIM or any RIM affiliate is required to indemnify such airtime service provider, then RIM shall, in its sole discretion elect to have such claim treated as a claim against RIM or against the airtime service provider or both under this provision, and shall notify Vendor of same. 13. Exclusion of Liability IN NO EVENT SHALL ANY AIRTIME SERVICE PROVIDER, OR EXCEPT WITH RESPECT TO RIM’S BREACH OF SECTION 4.3 OR SECTION 9, RIM, BE LIABLE FOR ANY DAMAGES WHATSOEVER DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE BLACKBERRY APP WORLD, THE VENDOR PORTAL OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY DAMAGES INCURRED BY VENDOR AS A RESULT OF DEVELOPING OR LICENSING APPLICATIONS, VENDOR’S USE OF THE VENDOR PORTAL OR BLACKBERRY APP WORLD, THE REJECTION, REMOVAL OR UNAVAILABILITY OF AN APPLICATION OR IF RIM DISCONTINUES THE BLACKBERRY APP WORLD), WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO RIM OR AN AIRTIME SERVICE PROVIDER. IN NO EVENT SHALL RIM HAVE ANY LIABILITY WHATSOEVER WITH RESPECT TO PAYMENTS DUE TO VENDOR BY AN MOR. Airtime service providers shall be third party beneficiaries solely for the purposes of this Section 13 and Sections 3.4, 10(l), 10(n), 10(o), 10(r), 12, and 14-16.
14. Limitation of Liability IN NO EVENT SHALL ANY AIRTIME SERVICE PROVIDER, OR EXCEPT WITH RESPECT TO RIM’S BREACH OF SECTION 4.3 OR SECTION 9, RIM, BE LIABLE FOR ANY DAMAGES THAT EXCEED, IN THE AGGREGATE, FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE BLACKBERRY APP WORLD OR THE
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VENDOR PORTAL, THE SUM OF TWO HUNDRED AND FIFTY UNITED STATES DOLLARS ($250.00).
15. Application 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 RIM and its affiliates and to airtime service providers as well as RIM’s and such affiliate’s directors, officers, employees, and independent contractors.
IN NO EVENT WILL RIM’S OR ITS AFFILIATES’ OFFICERS, DIRECTORS OR EMPLOYEES HAVE ANY PERSONAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT. IN NO EVENT SHALL RIM’S SUPPLIERS OR SERVICE PROVIDERS, OR THE MORS, HAVE ANY LIABILITY WHATSOEVER ARISING FROM OR RELATING TO THIS AGREEMENT. FURTHER, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL APPLY TO RIM’S AFFILIATES. THE PERSONS MENTIONED IN THIS PROVISION SHALL BE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT SOLELY FOR THE PURPOSES OF OBTAINING THE BENEFIT OF THIS PROVISION.
16. Exceptions SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.
17. Termination 17.1 Term This Agreement shall become effective as provided herein and shall continue in full force and effect until the termination of this Agreement in accordance with the provisions herein (“Term”). 17.2 Termination Vendor may terminate this Agreement for convenience at any time upon delivering to RIM at least thirty (30) days’ notice of its decision to do so. RIM may terminate this Agreement for convenience by providing to Vendor at least ninety (90) days written notice of its decision to do so. If Vendor is in breach of this Agreement, RIM may terminate this Agreement by delivering notice of its decision to do so, if Vendor has not cured the breach (or the breach is not capable of being cured) within thirty (30) days of RIM delivering notice to Vendor of its breach. In addition, RIM may terminate this Agreement immediately: (a) if Vendor, or if Vendor has licensed the distribution rights for the Applications, the licensor(s) for those Applications, entered into an SDK Agreement with RIM or Plazmic to develop the Application, as applicable, that is no longer in good standing; (b) if RIM is prevented by law or regulation from operating the BlackBerry App World and/or the Vendor Portal or any component thereof or in RIM’s opinion
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RIM is or may become subject to liability as a result of operating BlackBerry App World, the Vendor Portal, using Vendor Marks or Vendor Content, or this Agreement being in place; or (c) with respect to any Paid Applications Vendor makes available through the BlackBerry App World, if for any reason and at any time, RIM does not have an agreement in place with an MoR to provide this channel. Where termination is effective immediately on the occurrence of an event, if RIM does not provide Vendor with notice of such termination prior to the effective date of such termination, RIM shall do so, by means of the Vendor Portal or otherwise, within a commercially reasonable period following the effective date of such termination. 17.3 Effect of Termination In the event of any termination of this Agreement: (a) RIM and all applicable third parties may continue to exercise the rights granted herein with respect to Applications for a period not to exceed thirty (30) days from any termination of this Agreement; (b) notwithstanding the foregoing, RIM and all applicable third parties may continue to exercise the rights granted herein with respect to Applications for the purposes of the My World component of the BlackBerry App World; (c) RIM and all applicable third parties may continue to exercise the rights granted herein with respect to Vendor Marks for a period not to exceed ninety (90) days from any termination of this Agreement; (d) RIM shall not be responsible for removing from the BlackBerry App World or Vendor Portal any Vendor Marks or Vendor Content Vendor has submitted to RIM, by means of the Vendor Portal or otherwise; and (e) subject to the foregoing, Vendor shall immediately remove from the BlackBerry App World, by means of the Vendor Portal, all Applications, Vendor Marks and Vendor Content Vendor has submitted by means of the Vendor Portal. Vendor’s rights granted under this Agreement, including without limitation with respect to RIM Marks, shall immediately terminate on any termination of this Agreement. 17.4 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 1, 2.1, 2.4, 2.5, 3.1, 3.2, 3.4, 3.5, 4, 5, 8, 10-16, 17.3, 18 and this Section 17.4 shall survive any termination of this Agreement.
18. General 18.1 Amendments As this Agreement has no specified term, RIM reserves the right to make changes to the provisions of this Agreement from time to time. In the event of any such revisions that are material in nature, RIM will provide Vendor with written notice to the most recent address or email address provided by Vendor to RIM by means of the Vendor Portal, and RIM may provide notice of other revisions by posting the revised version of the Agreement on the Vendor Portal. Changes to this Agreement 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 Vendor. All other changes to this Agreement shall become effective ninety (90) days after the date RIM provides notice of such changes to Vendor.
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18.2 Assignment
This Agreement may not be assigned by Vendor without RIM’s express prior written authorization, and any such assignment without RIM’s express prior written authorization shall be null and void and of no effect. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties and their successors and assigns. RIM may, without notice to Vendor, 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.
18.3 Entire Agreement
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and cancels and supersedes any prior discussions, correspondence, understandings, agreements, or communication of any nature relating to the subject matter of this Agreement. Subject to Section 18.1, all changes to this Agreement must be made in writing and must be signed by both Parties. 18.4 Governing Law
This Agreement is governed by and construed under the laws of the State of New York, excluding any body of law governing conflicts of law. Vendor 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 located in the State of New York for any claims arising from or related to this Agreement. The Parties hereby waive all rights to a trial by jury in any matter arising out of or relating to this Agreement. No dispute between the Parties, or involving any person but Vendor, may be joined or combined together, without the prior written consent of RIM.
18.5 Notice
If RIM wishes to deliver notice to You, except as expressly set out in this Agreement, it must do so in writing by using any of the addresses (postal or email) You provide through the Vendor Portal, and must deliver the notice by courier or email to Vendor. Notice shall be effective and deemed delivered upon receipt provided that if any such notice fails to reach Vendor because the information provided on the Vendor Portal is not accurate or up to date, notice shall be deemed sufficiently delivered on the date it was sent. If You wish to give RIM notice of any kind, You 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.
18.6 Relationship
This Agreement does not create any agency or partnership relationship between the Parties.
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18.7 Severability
If a court of competent jurisdiction declares any provision in this Agreement invalid or unenforceable, such invalidity or unenforceability shall have no effect on the remainder of the Agreement which shall remain in full force.
18.8 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.
18.9 Export
Vendor agrees to provide to RIM through the Vendor Portal and other means, including but not limited to email, all requested export information applicable to any Application. The BlackBerry App World is designed only to accept Applications that meet, among others, the following criteria: (1) generally available to the public by being sold, without restriction, from stock at retail selling points by electronic transactions; (2) designed for installation by the End User without further substantial support by the Vendor; and if applicable (3) the cryptographic functionality cannot be easily changed by the End User. Vendor agrees not to submit Applications that do not meet the above criteria. Applications with incomplete or inaccurate export information will not be made available through the BlackBerry App World. Regardless of terminology in applicable laws, rules and regulations specifying the party responsible for obtaining any government related export, import, use, supply and/or transfer permits (“Export Permits”) required for any Application, Vendor is solely responsible for obtaining and shall obtain all such Export Permits prior to submitting any such Applications through the Vendor Portal. Vendor shall make any Export Permit available to an MoR, RIM and/or its service providers upon request. In no event shall MoR, RIM and/or its service providers obtain or be required to obtain any Export Permit needed to receive or enable the download of any Application. Vendor agrees not to submit Applications which require a US government review prior to availability without also submitting at the same time a valid Commodity Classification Tracking System (CCATS) number. Vendor acknowledges and agrees that government regulations and laws may further restrict the availability of Applications regardless of the Carrier Networks and/or countries indicated by Vendor in the Vendor Portal, and that RIM is in no way required to make any Application available contrary to RIM’s interpretation of these regulations and laws. 18.10 Remedies 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 available at law or in equity, but all such remedies shall be cumulative.
BlackBerry SDK License Agreement 021111 cl 1
BLACKBERRY SDK LICENSE AGREEMENT THIS BLACKBERRY SDK LICENSE AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU INDIVIDUALLY IF YOU ARE AGREEING TO IT IN YOUR OWN CAPACITY, OR IF YOU ARE AUTHORIZED TO ACQUIRE THE SDK ON BEHALF OF YOUR COMPANY OR ORGANIZATION, BETWEEN THE ENTITY FOR WHOSE BENEFIT YOU ACT ("YOU") AND RESEARCH IN MOTION LIMITED ("RIM"). BEFORE DOWNLOADING THE SDK, PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT RIM AT [email protected]. IF, PRIOR TO DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SDK. IN THIS CASE, DO NOT ATTEMPT TO DOWNLOAD THE SDK BY ANY MEANS AND IF YOU HAVE ALREADY DONE SO, PROMPTLY DELETE THE SDK. 1. Definitions "Airtime Service Provider" means the service provider of wide-area wireless network services and any other network services (including wireless local area network, satellite service and Internet services) that support the BlackBerry Solution. "API" means an application programming interface. "Applications" means: (a) in the general case, software application, or portions thereof, developed by You using the SDK for use with the BlackBerry Solution; (b) in the case of the BlackBerry Synchronization Server SDK, includes Connectors and/or Synchronization Code developed by You using the BlackBerry Synchronization Server SDK; and (c) in the case of the BlackBerry Attachment Server SDK, includes Attachment Service Distillers, or portions thereof, developed by You for use in conjunction with the Attachment Service. Notwithstanding the foregoing, in no event shall Applications include any software application programs, or portions thereof, that modify, delete, duplicate or replace all or any material part of: (a) the email functionality or features of all or any portion of the BlackBerry Solution; (b) a Synchronization Server or Synchronization Agent which has been incorporated by RIM into any portion of the BlackBerry Solution; or (c) any Distillers which have been incorporated by RIM into the Attachment Service. "Authorized Users" means: (a) any of Your employees; or (b) any consultants, independent contractors and any other persons You authorize to use or to whom You otherwise make available the SDK, in each case to use on Your behalf to develop Applications. "BlackBerry Handheld Product" or “BlackBerry Device” means a RIM wireless handheld device that is, or has been distributed and/or sold in association with a "BlackBerry" trademark (whether or not such BlackBerry Handheld Product also has a "RIM" trademark) including any such smartphone, smart card reader, BlackBerry Presenter or BlackBerry Playbook and any other device expressly identified by RIM at http://www.blackberry.com/legal/blackberrydevices_for_bblsa as a BlackBerry Handheld Product or BlackBerry Device. "BlackBerry Handheld Software" or “BlackBerry Device Software” means RIM proprietary software (comprised of RIM and RIM affiliates’ proprietary: software, firmware, interfaces, content and data; and Third Party Components) designed for use on a Handheld Product that is: (a) loaded on the Handheld Product as originally shipped by RIM; or (b) transmitted, distributed or otherwise made available by or on behalf of RIM from time-to-time for use on a Handheld Product. "BlackBerry PC Software" means RIM proprietary personal computer software (comprised of RIM and RIM affiliates’ proprietary: software, interfaces, content and other data; and Third Party Components) designed for only a single user to use and access at any one time. "BlackBerry Server Software" means RIM proprietary server software (comprised of RIM and RIM affiliates’ proprietary: software, interfaces, content and data; and Third Party Components), a single copy of which is designed to be accessed by multiple Handheld Products at any one time. "BlackBerry Solution" means the combination of RIM proprietary products and services used by a particular user and includes Software, Services and applicable documentation, and shall include either a BlackBerry Device or be used in conjunction with BlackBerry Handheld Software on another Handheld Product, e.g. one that is described in Subsection (b) of the definition of Handheld Product below. “BlackBerry Tablet OS” means RIM proprietary software (comprised of RIM and/or RIM affiliate proprietary: software, firmware, interfaces, content and data; and Third Party Components) designed and licensed for use on the BlackBerry Playbook that is: (a) loaded on the BlackBerry Playbook as originally shipped by RIM and/or QNX; or (b) transmitted, distributed or otherwise made available by or on behalf of RIM and/or QNX from time-to-time for use solely on the BlackBerry Playbook. "Distributable Code" means Distributable Object Code and Distributable Source Code. "Distributable Object Code" means the object code of those components of the SDK which are listed in the COMPONENTREDISTRIBUTION.TXT file, DISTRIBUTABLECODE.TXT file and/or other similar file(s) either included as part
BlackBerry SDK License Agreement 021111 cl 2
of the SDK or otherwise provided to You, as applicable. For the purposes of the BlackBerry Synchronization Server SDK "Distributable Object Code" includes the object code installer which is required to install a Connector. "Distributable Source Code" means certain application templates, code stubs, code snippets, example applications, sample code and code fragments in source code form either included as part of the SDK or otherwise provided to You. "Handheld Product" or “Device” means: (a) a wireless handheld device manufactured by or on behalf of RIM; and/or (b) a wireless handheld device, other than a device referred to in (a) above, on which BlackBerry Handheld Software or any portion thereof has been designed by RIM to operate. "License" has the meaning set out in Section 2. "Open Source License" has the meaning defined in Subsection 2(f). “QNX Momentics Tools” means the QNX Software Systems Co. (“QNX”) Momentics Development Tool Suite that enables the development of native Applications for the BlackBerry Tablet OS, which is licensed as part of the BlackBerry Tablet OS Native SDK to You by RIM hereunder. "Reverse Engineer", "Reverse Engineered" and "Reverse Engineering" includes, without limitation, any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of "dumping of RAM/ROM or persistent storage", "cable or wireless link sniffing", or "black box" reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form. "RIM Base Map Product Offerings" means the map product offerings created by RIM using TANA Map Products, that provide certain limited functionality and that are accessible from an Application through map APIs identified in the SDK documentation by their class/method names and descriptions (but excluding map APIs (if any) which are designated in the documentation as "Enhanced map APIs"). "RIM Handheld Product" means a RIM wireless handheld device that is distributed and/or sold under a "RIM" trademark and is not, and has not been, distributed and/or sold under a "BlackBerry" trademark or otherwise sold as part of the BlackBerry Solution. "SDK" or "Software Development Kit" means all software (including programs, tools, sample code, templates, libraries, and interfaces), Updates, APIs, information, data, files, documentation, and other materials, whether tangible or intangible, in whatever form or medium, provided to You at any time, either by way of downloading from a RIM or a RIM affiliate website or otherwise provided to You, for any development purposes (unless such materials are provided pursuant to a separate license agreement for such materials by RIM and/or its affiliates). Except as expressly specified herein the SDK shall not include the Software or any Third Party Software. Your use of such software shall be governed by and is subject to Your agreeing to the terms of separate software licenses for such software. RIM's SDKs include, without limitation, the SDKs described in Schedule 1. "Service" means any RIM service provided in conjunction with the BlackBerry Solution, including, without limitation, RIM's infrastructure. "Software" means RIM proprietary software and includes, without limitation, BlackBerry Server Software, BlackBerry Handheld Software and BlackBerry PC Software. Software shall not include any Third Party Software. "TANA Map Products" means the map products which RIM has licensed from Tele Atlas North America, Inc. ("TANA"). "Third Party Software" means software proprietary to a third party, including, without limitation, the software listed in Schedule 2, but shall not include Third Party Components. Additionally, the TANA Map Products are Third Party Software, and in order to access and use the TANA Map Products other than as part of the RIM Base Map Product Offerings You must enter into a license agreement with TANA, as further explained in Subsection 2(g). Regardless of the terms of any such additional software license, RIM accepts no obligations to You in relation to Third Party Software. "Third Party Components" means software, interfaces and firmware licensed by RIM from a third party for incorporation into the SDK and distributed as an integral part of the SDK. "TTS Functionality" means the text-to-speech functionality that is included within the Java Development Environment (JDE) SDK and that is accessible through APIs as described in the SDK documentation. "Updates" means bug fixes, service packs, hot fixes, updates, upgrades, enhancements, modifications, and new releases or versions of the SDK. 2. License and License Restrictions Subject to the terms and conditions of this Agreement: (a) RIM hereby grants You a personal, revocable, non-exclusive, royalty free, non-transferable license to install and use a
reasonable number of copies of the SDK to be used solely in the manner described in the documentation contained in the SDK
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and solely for the purposes of developing, testing and debugging Applications (and in the case of the BlackBerry Application Web Loader solely for the purposes of facilitating the loading of Applications on Handheld Products). You may not copy the SDK or any portion thereof except as expressly permitted herein. For the purposes of this provision "copy" shall not include copying of statements and instructions of the SDK or any portion thereof that naturally occurs during normal program execution when used in accordance with and for the purposes described in the documentation or in the course of making unmodified copies of the SDK or documentation as part of the regular back-up of the SDK in accordance with standard industry business practices. Notwithstanding the foregoing, if RIM has terminated any license granted to You by RIM for any SDK, no right to use the SDK is granted to You hereunder. In such case You may contact [email protected].
(b) For avoidance of any doubt, unless You obtain written authorization from RIM executed by an officer of RIM, You acknowledge that the License (as defined below) does not include and You are not licensed to develop, market, rent, distribute, transfer, license, sublicense, or furnish any software applications which modify, delete, duplicate or replace all or any material part of: (i) the email functionality or features of all or any portion of the BlackBerry Solution except where such applications are developed for and distributed solely in connection with RIM Handheld Products in accordance with this License; (ii) the functionality or features of all or any portion of a Synchronization Server or Synchronization Agent which has been incorporated by RIM into any portion of a BlackBerry Solution; or (iii) the functionality or features of all or any portion of any Distillers which have been incorporated by RIM into the Attachment Service. You further agree not to engage in any of the aforementioned activities or to attempt to do so using any part of the SDK.
(c) Unless You obtain written authorization from RIM executed by an officer of RIM, You acknowledge that the License does not include and You are not licensed to develop, market, rent, distribute, transfer, license, sublicense, or furnish any software applications which contain, install, invoke, interpret, or execute interpreted software other than solely to the extent interpreted software is interpreted or executed by RIM’s and/or its licensors’ interpreters (i.e. interpreters that RIM makes available natively).
(d) You may distribute the Applications provided that, except as expressly permitted herein, or as authorized by an officer of RIM in writing, You do not directly or indirectly market, rent, distribute, transfer, license, sublicense, sell, or furnish to any third party all or any part of, the SDK or copies of any part thereof including in conjunction with or as part of Applications.
(e) To the extent that Distributable Source Code is provided as part of the SDK, You may use, modify and compile the Distributable Source Code solely for the purposes of developing Your Applications. Notwithstanding the foregoing, You may not modify any header files included in the SDKs.
(f) You may distribute any Distributable Code provided that You shall: (i) add significant primary functionality to it in Your Applications; (ii) distribute such code in executable form only; (iii) include the following copyright notice within Your Application's source code in the same locations as Your own copyright notice (and if You do not include a copyright notice, then at least on one of the packaging, manuals or "about" box): "Portions copyright (c) 2002-2010 Research In Motion Limited. All rights reserved."; (iv) not provide a separate price for or charge a license fee or royalty for the Distributable Code distinct from the fee You charge for Your Applications; and (v) not distribute, link or integrate the Distributable Code such that any part of it becomes subject to an Open Source License. In addition You shall require users of Your Applications to agree to the following minimum license terms applicable to the Distributable Code: (A) the license granted is a non-exclusive, terminable license for user to use the Distributable Code only on or in conjunction with Your Application; (B) except for the limited license to use the Distributable Code on or in conjunction with Your Application, the user acquires no intellectual property or other proprietary rights, including, without limitation, patents, designs, trademarks, copyright or rights in any confidential information in or related to the Distributable Code; (C) Reverse Engineering the Distributable Code is prohibited, except to the extent that You are expressly precluded by law from imposing such restrictions; (D) the user must cease all use of the Distributable Code within a reasonable period of time following expiration or termination of the license agreement; (E) RIM, specifically, or as one of Your suppliers, shall not be liable to user for any damages whatsoever; (F) the user shall import, export, re-export and use the Distributable Code only in accordance with the laws and regulations of the of the country(ies) and/or territory(ies) in which the Distributable Code is used, imported, exported and/or re-exported; (G) You make no warranties, express or implied, related to the Distributable Code on RIM's behalf to users of the Applications that include Distributable Code; and (H) the user shall not alter any copyright, trademark or patent notice in the Distributable Code. For the purposes of this Agreement, an "Open Source License" is any license which requires, as a condition of use, modification, and/or distribution of any software subject to such license that such software and other software incorporated into, integrated with, derived from and/or distributed with such software be: (1) disclosed or distributed in source code form; (2) licensed for the purposes of making modifications or derivative works; (3) permitted to be Reverse Engineered; (4) reproduced and/or redistributed at no or minimal charge; and/or (5) otherwise distributed on terms that impede the ability to distribute and license such software as the licensor of such software sees fit.
(g) You may use the SDK to develop links from Your Applications to RIM Base Map Product Offerings for use with Handheld Products, provided however that any such linking is limited to passing information to the RIM Base Map Product Offerings for display to the user. Neither You nor Your Applications may manipulate or otherwise alter the output of the RIM Base Map Product Offerings or enhance or otherwise alter the functionality offered by the RIM Base Map Product Offerings. If You wish to develop Applications which offer map-based functionality over and above that available through the RIM Base Map Product Offerings, You may be able to use the "Enhanced map APIs" (if any are provided as part of Your version of the SDK or otherwise) to enable Your Applications to access the TANA Map Products (as same may be reformatted, compressed, adapted, translated or otherwise processed by RIM) which are stored on RIM's infrastructure. HOWEVER THE TANA MAP PRODUCTS ARE THIRD PARTY SOFTWARE, AND YOU HAVE NO RIGHT TO DEVELOP, COMMERCIALLY LAUNCH OR OTHERWISE COMMERCIALLY EXPLOIT ANY APPLICATIONS THAT ACCESS THE TANA MAP PRODUCTS (OTHER THAN AS PART OF THE RIM BASE MAP PRODUCT OFFERINGS AS PROVIDED ABOVE) UNLESS AND UNTIL YOU EXECUTE A LICENSE DIRECTLY WITH TANA GRANTING YOU THE RIGHT TO DO SO. If no Enhanced map APIs are included in Your version of the SDK You should contact RIM for information as to their availability.
(h) You must require users of Your Applications, in the license terms applicable to Your Applications, to agree to a prohibition on Reverse Engineering Your Applications, except to the extent that You are expressly precluded by law from imposing such restriction.
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(i) The QNX Momentics Tools are licensed to You as part of the BlackBerry Tablet OS Native SDK solely under this Agreement, and any other agreement You are required to agree to in order to obtain, install or otherwise use the QNX Momentics Tools, including any such click wrap agreement embedded in the QNX Momentics Tools, shall be of no force or effect.
(j) Subject to the additional provisions of Schedule 3 herein, You may use the BlackBerry Payment SDK to add the necessary features and functionality to Your Applications to enable You to utilize the BlackBerry Payment Service (currently the Commerce Solution for BlackBerry App World (as defined in Schedule 3)) to sell In-App Products (as defined in Schedule 3) through copies of Applications that have been distributed through BlackBerry App World (Subsections 2(a)-(j) collectively constitute the “License”).
3. APIs. Notwithstanding Section 2, You acknowledge and agree that You will not be permitted to access certain APIs in the SDK for all or certain purposes unless the code for Your Application has been electronically signed by RIM. You further acknowledge and agree that RIM may, but has no obligation, to require You to submit certain information respecting Your identity, Your Application, and Your having obtained certain third party licenses, as a condition of RIM signing the code for Your Application. Furthermore, RIM reserves the right to refuse to sign the code for Your Application, or to revoke any and all code signing already granted for Your Application including, without limitation, if, at any time: (a) RIM deems, in its sole and reasonable discretion, that Your Application does not require access to the APIs for which code signing is requested in order to be used in conjunction with the BlackBerry Solution or Handheld Products as the case may be, (b) RIM has a reasonable apprehension that Your Application may interfere with, degrade, or otherwise adversely affect the BlackBerry Solution, Handheld Products, and/or any other software, system, network or data, (c) RIM has a reasonable apprehension that the information that You have provided to RIM in order to obtain access to such APIs is untrue, inaccurate, not current or incomplete, (d) RIM is prohibited from signing the code for Your Application due to governmental, contractual or other restrictions of applicable authority, such as a court of competent jurisdiction, (e) You have breached, or RIM has a reasonable apprehension of Your imminent breach, of this Agreement or any other agreement between You and RIM, (f) RIM learns that You do not have a license required under certain third party intellectual property rights in place, or (g) Your Application accesses or is designed to access the TTS Functionality. 4. Certification. You acknowledge and agree that You are solely responsible for obtaining any certification of Your Applications required by an Airtime Service Provider respecting Your Application's compatibility and safe operation with the wireless network of such Airtime Service Provider. Notwithstanding any other provision in this Agreement, You further agree that RIM shall have no liability whatsoever to any third party for any claim or action relating to any of Your Applications, and that even if RIM signs the code for Your Application, such signing shall not in any event constitute an endorsement, certification, representation, guarantee, covenant or warranty with respect to Your Application or Your Application's compatibility with the BlackBerry Solution or any part thereof, or with any other product, software or service, including without limitation the wireless network of any Airtime Service Provider, and You shall not represent it as such to any other person. 5. SDK Updates. RIM is under no obligation to provide You with any Updates. However, if RIM does provide You with any Updates, such Updates shall be subject to the terms and conditions of this Agreement (including the License) or such agreement, if any, which accompanies such Updates, including a possible requirement to make payments to RIM in respect thereof. Further, to enable all or part of the functionality of an Application you may need to enter into one or more additional agreements with RIM. 6. Limitation of License Grant. This Agreement does not give You a license or any entitlement to any portion of the BlackBerry Solution or to any airtime services. If You require the BlackBerry Solution or any portion thereof and/or airtime services from an Airtime Service Provider, You are solely responsible for arranging at Your own expense the necessary licenses and agreements. 7. Use of SDK. You are responsible for all activities with respect to the SDK undertaken by You and Your Authorized Users and You will ensure that: (a) You and Your Authorized Users will only use the SDK in accordance with this Agreement, all applicable laws and regulations,
and the documentation provided by RIM as part of and for use in conjunction with the SDK, and Applications and any products, services or content available through Your Applications and their intended uses shall comply with all applicable laws and regulations;
(b) You have the right and authority to enter into this Agreement, either on Your own behalf or on behalf of a company or other entity, and You are over the age of majority;
(c) Any information that is provided to RIM in relation to this Agreement is true, accurate, current and complete; (d) You and Your Authorized Users will not knowingly, after making such inquiries as a reasonable person in Your or Your
Authorized Users' position would undertake, develop or distribute Applications or make any products, services or content available through Your Applications, the use of which in isolation or with any other software, system, network, or data would, in RIM's judgement, acting reasonably, contain functionality that could be used for inappropriate or improper purposes or interfere with the proper operation of, degrade, cause damage to or adversely affect any software, hardware, services, system, network or data used by any person including RIM or an Airtime Service Provider, including without limitation the BlackBerry Solution and Handheld Products, or otherwise have a detrimental effect upon RIM, an Airtime Service Provider or any of their respective customers or products or services, and You will immediately cease any such activity upon RIM delivering notice of same to You;
(e) You and Your Authorized Users will not use the SDK to develop any Applications or make any products, services or content available through Your Applications, which are intended to be used to commit or would be used predominantly to commit any crime or other illegal or tortious acts in the jurisdiction in which You or Your distribution channels distribute that Application and without limiting the foregoing, Applications and any products, services or content available through Your Applications must not contain or link to any content, or perform any function, that is illegal (e.g. against any criminal, civil or statutory law or regulation), including, without limitation, any libel or defamation, obscenity, breach of privacy, infringement or misappropriation of any intellectual property rights and/or other proprietary rights of any party (including, without limitation, unlawfully circumventing any digital rights management protections);
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(f) Applications and any products, services or content made available through Your Applications, do not, and will not contain any: (i) virus, Trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, drop dead mechanism, or spyware; or (ii) any other software, code, or program that is likely to or is intended to: (A) have an adverse impact on the performance of, (B) disable, corrupt, or cause damage to, or (C) cause or facilitate unauthorized access to or deny authorized access to, or cause to be used for any unauthorized or inappropriate purposes, any software, hardware, network, services, systems, or data (“Malware”). If You become aware of the existence of any Malware in or relating to Your Applications, You shall promptly notify RIM;
(g) You will cooperate with RIM and provide information requested by RIM to assist RIM in investigating or determining whether there has been a breach of this Section 7 or any other provision of this Agreement and upon request provide RIM with access to the premises and computers where the SDK is or has been used. You hereby authorize RIM to cooperate with: (1) law enforcement authorities in the investigation of suspected criminal violations; and (2) third parties in investigating acts in violation of this Agreement. Such cooperation may include RIM providing Your username, IP address or other identifying information;
(h) You will not knowingly develop or distribute any Application or make available any products, services or content available through any Application that infringes any RIM, RIM affiliate or third party copyrights, trademarks, industrial design rights, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights (e.g. musical composition or performance rights, photography or image rights, logo rights, or third party data rights);
(i) Applications and In-App Products that offer or are used in conjunction with location based services or functionality must notify and obtain consent from the end user before You collect, transmit, process, display, disclose, maintain, or use his or her location data in any manner whatsoever, and notwithstanding the generality of the foregoing You shall comply with applicable privacy and data protection legislation in respect of such information. If the end user’s consent is denied or withdrawn at any time, neither You nor the Application nor the In-App Product may continue to collect, transmit, process, display, disclose, maintain, or use the end user’s location data; and
(j) You shall not represent in any manner that Applications or In-App Products are intended or suitable for use in mission critical systems (for example emergency locator systems or systems requiring fail-safe controls).
8. BlackBerry Distribution Channels and Payment Services. You acknowledge and agree that this Agreement and the License granted hereunder does not guarantee that RIM or any of its merchants of record will agree to distribute or sell copies of Your Applications developed hereunder, or any products, services or content available through Your Applications through BlackBerry App World, the Commerce Solution for BlackBerry App World or through any other payment service that the BlackBerry Payment SDK may otherwise enable Your Applications to access, and that to do so may require that You agree to additional terms and conditions, and will, in every instance, be at the sole discretion of RIM and its merchants of record. 9. Intellectual Property. This Agreement does not transfer or assign to You, any intellectual property right including any patent, design, industrial design, trademark, servicemark, copyright or rights in any confidential information or trade secrets, in or related to the SDK or any part thereof. The SDK and all copies thereof remain the property of RIM and are licensed and not sold to You under this Agreement. You acknowledge that there are no implied licenses granted under this Agreement, and all rights, save for those license rights expressly granted to You hereunder, shall remain with RIM. This Agreement only provides a license for the SDK itself and You may need licenses, including without limitation patent and copyright licenses from RIM and from third parties, to use, manufacture, reproduce or distribute Your Applications, and You agree that RIM has no obligation to You with respect to providing notice of or acquiring such licenses. You agree that nothing in this Agreement shall adversely affect any rights and recourse to remedies, including without limitation, injunctive relief that RIM may have under any applicable laws relating to the protection of RIM's intellectual property or other rights. 10. Feedback. You and Your Authorized Users may provide RIM with feedback on the SDK, and/or a BlackBerry Payment Service (such as the Commerce Solution for BlackBerry App World for In-App Products (as defined in Schedule 3), including, without limitation, feedback on bugs and faults within or relating to the SDK, BlackBerry Solution, and/or BlackBerry Payment Service (collectively the “RIM Properties”) or suggestions for improvements or other changes to all or any portion of the RIM Properties. You hereby agree that RIM shall own all feedback, ideas, concepts and changes to any portion of the RIM Properties developed or identified in the course of or as a result of Your use of the SDK and all associated intellectual property rights ("Results"), and You hereby assign to RIM all of Your right, title and interest thereto. You will not knowingly provide RIM Results that are subject to third party intellectual property rights. You agree to cooperate fully and to ensure that Your employees, officers, independent contractors and Your Authorized Users cooperate fully with RIM with respect to signing further documents and doing such other acts as are reasonably requested by RIM to confirm that RIM owns the Results, and to enable RIM to register and/or protect any associated intellectual property rights and/or confidential information. 11. Export Restrictions; U.S. Government Rights. You acknowledge that the SDK, including without limitation the Distributable Code, may include encryption software that may be subject to export, import, and/or use controls by Government Authorities (as hereinafter defined) by way of law or regulation. You agree that the SDK will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the SDK is being exported or to which the SDK is being imported (collectively, the "Government Authority(ies)"). Without limitation, the SDK will not be exported: (a) to any country on Canada's Area Control List; (b) to any country subject to UN Security Council embargo or action; (c) contrary to Canada's Export Control List Item 5505; (d) to countries subject to U.S. economic sanctions and embargoes; and (e) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items. If You have any questions regarding this Section 11, please contact RIM at [email protected]. You hereby represent that: (i) to the best of Your knowledge You are eligible to receive the SDK under applicable law; (ii) You will not use the SDK in 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; and (iii) You will ensure that Authorized Users use the SDK in accordance with the foregoing restrictions. You hereby agree to indemnify
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RIM, its affiliates and the applicable Airtime Service Provider(s) from any claims, actions, liability or expenses (including reasonable lawyers' fees) resulting from Your failure to act in accordance with the acknowledgements, agreements, and representations in this Section 11. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if You are any agency of the government of the United States of America, then Your rights in respect of the SDK shall not exceed the rights provide under this Agreement, unless expressly agreed upon by RIM in a written agreement, signed by Chief Operating Officer or Chief Executive Office of RIM, between You and RIM. 12. Confidentiality. (a) You acknowledge and agree that the SDK (including without limitation information accessible by means of the SDK) was
developed at considerable time and expense by RIM and contains valuable trade secrets and confidential information of RIM. Accordingly, You agree to maintain the SDK (including without limitation information accessible by means of the SDK) in strict confidence and except as expressly provided in Section 2, You: (i) will not disclose or provide access thereto to any person except to Authorized Users with a need for access to exercise the License granted herein or; (ii) use the SDK for any purpose not expressly authorized hereby, or permit or authorize any other person to do so.
(b) The restriction in Subsection 12(a) shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of Yours. Any combination of RIM trade secrets and information that forms part of the SDK shall not be deemed to be public merely because individual parts of the SDK are in the public domain, unless the combination itself is in the public domain.
(c) You agree that, except to the extent that RIM is expressly precluded by law from prohibiting You and Your Authorized Users from doing so and except as expressly authorized in this Agreement, You and Your Authorized Users will not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble or Reverse Engineer the SDK, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same. Except as expressly provided in Section 2, You do not have the right to obtain or use any source code for software included in the SDK.
13. Term. This Agreement shall be effective upon Your agreement to be bound by the terms of this Agreement, (as manifested by the conduct described in the first paragraph above) and shall end upon termination of this Agreement in accordance with the provisions set out herein. Unless otherwise authorized by RIM and subject to Section 14, You must destroy all copies and component parts of the SDK licensed under this Agreement within one (1) week of the termination of this Agreement, and You may be required to provide proof of such destruction to RIM. Upon the termination of this Agreement the License shall immediately terminate and You shall promptly stop all use of the SDK. 14. Termination. RIM reserves the right to terminate this Agreement on thirty (30) days notice to You for any reason whatsoever, provided that if there has been no allegation of wrongdoing on Your part or in relation to the use of Your Applications, RIM shall provide a reasonable period for You to continue to distribute any Distributable Code that is embedded in Your Applications at the time of termination, provided You continue to do so in accordance with the terms of this Agreement as if it were still in effect. If You or any Authorized User breach any provision of this Agreement, RIM may terminate this Agreement and the License granted hereunder, by delivering notice of termination to You. You will be deemed to be in breach of this Agreement if: (a) You fail to comply with or perform a term or condition herein; or (b) You or any Authorized User interferes with RIM's customer service or business operations; or (c) You materially breach any other agreement that You may have with RIM. RIM may also terminate this Agreement if RIM is prevented from providing any portion or all of the SDK by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body. Nothing herein shall be construed to require RIM to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. In addition, RIM shall not have any liability to You or Your Authorized Users arising from or related to the termination of this Agreement or the License for any reason. 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. In the event of the termination of this Agreement pursuant to this Section 14 for cause, You shall pay to RIM all attorney fees, collection fees, and related expenses, expended or incurred by RIM in the enforcement of any right or privilege hereunder. 15. Indemnity/Liability. You shall indemnify, hold harmless, and if requested by RIM, defend, RIM, RIM’s affiliates, airtime service providers, agents and their respective successors, assigns, directors, officers, employees and independent contractors (each a "RIM Indemnified Party") from any claims, costs, damages, losses, settlement fees, and expenses (including without limitation attorney fees and disbursements) incurred directly or indirectly by a RIM Indemnified Party as a result of Your or Your Authorized Users' breach of this Agreement and/or as a result of any third party claim, proceeding, suit, judgment, settlement, or cause of action (“Claim”): (a) alleging the infringement, violation or misappropriation of any intellectual property right including a patent, design, industrial design, copyright, trade secret or trademark or other proprietary right by: (i) Your Application(s) or the use thereof, or the combination of Your Application(s) with any other hardware, software, system, or service, (ii) any product, service or content made available through Your Application, or (iii) Your or Your Authorized Users' combination of the SDK or any portion thereof with any hardware, software, or system or service other than the BlackBerry Solution; (b) alleging libel, slander, or defamation related to the use of Your Applications or any products, service or content made available through Your Application; (c) alleging any injury, death or property or other damage arising from or related to the performance or non-performance of any portion of the SDK or Your Applications or any products, service or content made available through Your Application; (d) based on any representation or misrepresentations made by You or Your Authorized Users or (e) otherwise related to or arising from Your or Your Authorized Users' use of the SDK or any use or distribution of Your Applications (including Your development of Applications), or any portion thereof, or any product, service or content made available through Your Application. Once RIM notifies You of a Claim, unless otherwise expressly agreed in writing, all communications (including the notice) shall be deemed confidential information of RIM, which may not be disclosed by You to any third party, other than Your legal advisors, without the prior express written permission of RIM, and in addition, all communications, in respect of any such Claim shall be subject to common interest privilege. RIM shall provide notice to
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You of any Claim, and each of You and RIM shall: (A) provide each other all information and assistance reasonably requested by the other in relation to such Claim (provided that You shall reimburse RIM for any out of pocket expenses incurred by a RIM Indemnified Party in doing so); and (B) not admit to any liability or agree to any settlements by or on behalf the other party with respect to such Claims without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. If RIM has requested You to defend a Claim and later has a reasonable basis to believe that You cannot or may not be able to fulfill Your obligations under this Section 15, then, without limiting Your obligations under this Section 15, RIM shall be entitled to provide You with notice of its decision to defend the Claim, and thereafter to assume control of the defense and/or settlement of any such Claim. Further, if a Claim arises in the context of RIM providing You with access to payment services for Your Application, and a RIM Indemnified Party is required to indemnify any third party (including without limitation a merchant of record, payment processor, or airtime service provider) in respect of a claim, proceeding, suit, judgment, settlement or cause of action relating to Your Applications or any product, service or content made available through Your Applications, then any claim subject to that indemnity shall be deemed to be a Claim against RIM hereunder. If a Claim hereunder brought against an airtime service provider is also a claim with respect to which RIM or any RIM affiliate is required to indemnify such airtime service provider, then RIM shall in its sole discretion elect to have such claim treated as a Claim against RIM or against the airtime service provider, or each of them under this provision, and shall notify You of same. 16. EXCLUSION OF WARRANTIES AND CONDITIONS. (a) The BlackBerry Tablet OS Native SDK, BlackBerry PlayBook Simulator, and BlackBerry Tablet OS SDK for Adobe AIR are
still under development by RIM and QNX and are not commercial or generally available releases. Accordingly, such SDKs may be unreliable, may not be fully tested, lack regulatory approvals and/or contain bugs or errors. You must take adequate precautions to prevent damage to data in the event such SDKs fail. You acknowledge and agree that significant changes, such as changes to or elimination of functionality, may be made to future versions of such SDKs.
(b) RIM PROVIDES ALL SDKS AND ANY INFORMATION PROVIDED THROUGH ANY APIS (“API INFORMATION”) AND PAYMENT SERVICES AND ACCESS THERETO "AS IS". RIM MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR RELATED TO ANY SDKS, ANY API INFORMATION, THE PAYMENT SERVICES, OR ACCESS THERETO, OR THEIR PERFORMANCE OR FAILURE TO PERFORM. THE PARTIES ALSO 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. YOU AGREE TO ASSUME ALL RISKS ASSOCIATED WITH YOUR AND YOUR AUTHORIZED USERS' USE OF ANY SDKS. YOU ARE RESPONSIBLE FOR TAKING PRECAUTIONARY MEASURES TO PREVENT THE LOSS OR DESTRUCTION OF YOUR DATA AND DATABASES SUCH AS, FOR EXAMPLE, MAKING REGULAR BACK-UPS AND VERIFYING THE RESULTS OBTAINED FROM USING ANY SDKS, AND RIM SHALL HAVE NO OBLIGATIONS OR LIABILITY WHATSOEVER WITH RESPECT TO ANY SUCH LOSS OR DESTRUCTION. YOU ACKNOWLEDGE THAT THE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS AGREEMENT REFLECT THE FACT THAT ALL SDKS AND API INFORMATION ARE MADE AVAILABLE TO YOU AT NO CHARGE AND THE PAYMENT SERVICES AND ACCESS THERETO AT MINIMUM FEES, AND THAT RIM WOULD NOT BE ABLE TO OFFER YOU ANY SDK, API INFORMATION AND ACCESS TO THE PAYMENT SERVICES IF THESE LIMITATIONS AND EXCLUSIONS WERE NOT IN PLACE. You acknowledge and agree that API Information is not intended or suitable for use in mission critical systems (for example emergency locator systems or systems requiring fail-safe controls), and RIM and its affiliates do not guarantee the availability, accuracy, completeness, reliability or timeliness of API Information.
(c) The SDK may include Sun Microsystems, Inc. ("Sun") Java code. Any such code is provided to You "AS IS" and at no charge with no representations, warranties or conditions either express or implied, including without limitation any warranties or conditions of merchantability, quality, performance, fitness for a particular purpose, durability, title or non-infringement. In no event shall either RIM or Sun be liable to You for any damages whatsoever, arising out of or in relation to the provision of the Sun Java code as part of the SDK, its performance or lack of performance, even if RIM or Sun has been advised of the possibility of such damages. You acknowledge that this limitation and exclusion is reasonable given that this code is provided at no charge.
17. EXCLUSION OF LIABILITY.
(a) IN NO EVENT SHALL RIM BE LIABLE FOR ANY DAMAGES WHATSOEVER DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PAYMENT SERVICES OR ACCESS THERETO OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR IN RELATION TO THE PROVISION OF ANY PAYMENT SERVICES FOR YOUR APPLICATIONS OR ANY PRODUCTS, SERVICES OR CONTENT MADE AVAILABLE THROUGH YOUR APPLICATIONS, (INCLUDING WITHOUT LIMITATION ANY DAMAGES INCURRED BY YOU AS A RESULT OF DEVELOPING OR DISTRIBUTING IN-APP PRODUCTS, YOUR USE OF THE VENDOR PORTAL OR ANY PAYMENT SERVICES, THE REJECTION, REMOVAL OR UNAVAILABILITY OF ANY IN-APP PRODUCT OR IF RIM DISCONTINUES ACCESS TO, IN WHOLE OR IN PART, TO ANY PAYMENT SERVICES AT ANY TIME) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO RIM.
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(b) IN NO EVENT SHALL ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, SUPPLIER, INDEPENDENT CONTRACTOR, OR ANY MERCHANTS OF RECORD OF RIM OR ANY RIM AFFILIATE HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT.
18. LIMITATION OF LIABILITY. IN NO EVENT SHALL RIM BE LIABLE FOR ANY DAMAGES THAT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY SDK, API INFORMATION OR THE PAYMENT SERVICES OR ACCESS THERETO, THE SUM OF TWO-HUNDRED AND FIFTY CANADIAN DOLLARS. 19. APPLICATION. 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; (B) SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN; AND (C) APPLY IN THE AGGREGATE, TO RIM, RIM'S AFFILIATES, AIRTIME SERVICE PROVIDERS DISTRIBUTOR, ANDMERCHANTS OF RECORD, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. 20. EXCEPTIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS. 21. Consent to Collection of Information. By submitting personal information about You and/or Your Authorized Users (which may or may not, depending on applicable law, include, without limitation, a name, email address, telephone number and/or Handheld Product information), to RIM and/or its affiliated companies through Your access and use of the SDK, You consent to the collection, use, processing, transmission, and/or disclosure of such information by RIM and/or its affiliated companies, and You warrant that You have obtained all consents necessary under applicable law from Your Authorized Users to disclose their personal information to RIM and/or its affiliated companies and for RIM and/or its affiliated companies to collect, use, process, transmit, and/or disclose such personal information, which may also include the use, processing, transmission, and/or disclosure of such information to Your and/or Your Authorized Users' Airtime Service Provider and/or within RIM and its affiliated companies, for: (a) the internal use of RIM and its affiliated companies, including, without limitation: (i) understanding and meeting Your needs and preferences, (ii) developing new and enhancing existing services and product offerings, and (iii) managing and developing RIM's business and operations; (b) any purpose related to the provision and/or Your use of the SDK and/or related products and/or services, including without limitation to enable dynamic license key generation; (c) providing You with upgrades or updates of the SDK and/or related products and/or services; (d) any purposes permitted or required by any applicable law; and/or (e) any of the other purposes which are set out in RIM's then current privacy policy, which may be viewed at http://www.blackberry.com/legal/privacy.shtml and is hereby incorporated into this Agreement. The collection, use, processing, transmission, and/or disclosure of Your or Your Authorized Users' personal information for the purposes noted above are in strict accordance with RIM's privacy policy. If Your personal information is disclosed to Your and/or Your Authorized Users' Airtime Service Provider, Your or Your Authorized Users' Airtime Service Provider's privacy policy, or the terms and conditions relating to the collection, use, processing, transmission, and/or disclosure of personal information negotiated between RIM and Your and/or Your Authorized Users' Airtime Service Provider, if any, shall apply. You agree to inform all individuals whose personal information You provide to RIM that they may have rights to access and correct their personal information under applicable laws and regulations. To the extent end users, RIM and its affiliates, agents and/or independent contractors, and/or any applicable merchant(s) of record, provide You with any end user data or personal information, You shall only use such end user data or personal information in accordance with the purpose for which it was provided to You. Further, You agree to: (A) provide notice to and obtain consent from the end user with respect to any personal information collected, used, processed, transmitted, displayed, stored or disclosed by You and Your Application(s); (B) subject to Section 7(a), Your privacy policy (including without limitation with respect to any end user data made accessible to You by RIM, its affiliates, agents and/or independent contractors, and/or any applicable merchant(s) of record or airtime service provider); (C) use best efforts to ensure the confidentiality of end user data via encryption or similar means; and (D) not use end user data to offer any of Your products or services to end users or any other party in violation of the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) or other applicable laws, rules or regulations. If You provide end user data to RIM, its affiliates, agents and/or independent contractors, and/or any applicable merchant of record, You represent and warrant that You will have obtained any necessary consent from the end user to disclose the end user data to RIM, its affiliates, agents and/or independent contractors, and/or any applicable merchant of record. 22. Assignment and Delegation. RIM may assign this Agreement without notice to You. You shall not assign this Agreement or Your rights hereunder without the prior written consent of RIM (such consent may be withheld or conditioned at RIM's sole discretion) and any assignment without RIM's prior written consent shall be null and void and of no effect. RIM 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. 23. Nature of Relationship. This Agreement shall not create or be construed as creating a joint venture, co-ownership, partnership, or agency relationship between You and RIM. Neither Party will have authority to or will hold itself out as having any authority to incur, assume, or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of, or on behalf of, or in any way binding upon, the other.
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24. Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing and shall be sufficiently delivered to You if delivered by hand or sent by double registered mail, courier, facsimile, or email, addressed to the last address, fax number or email address (as applicable) provided to RIM by You or on Your behalf. Notwithstanding the foregoing, in the case of RIM providing notice to You, such notice shall be effective and deemed delivered upon receipt provided that if any such notice fails to reach You because the information provided by You or on Your behalf to RIM is not accurate or up to date, notice shall be deemed sufficiently delivered on the date it was sent. No notice shall be binding on RIM unless delivered by courier to RIM, addressed to RIM's legal department at 295 Phillip Street, Waterloo, Ontario, N2L 3W8. 25. General. (a) Third Party Beneficiaries. RIM's affiliates and airtime service providers and their respective directors, officers and employees
thereof are intended third party beneficiaries for the purposes of Sections 15-20. Except as other specifically stated in this Section, the provisions hereof are for the benefit of the parties and not for any other person or entity.
(b) Waivers of Default. No 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.
(c) 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, cancellation or termination of this Agreement. Without limiting the generality of the foregoing, the provisions of Sections 1, 10, 12-20, 24, this Section 25 and Subsection 2(h), and Sections 1, 3, 5-9, 11, 13, 15, and 18-20 of Schedule 3, shall survive the termination or expiration of this Agreement.
(d) Governing Law and Dispute Resolution. If You reside in Canada and the SDK is shipped or delivered to You in any format in Canada, this Agreement is to be governed by and construed under the laws of the Province of Ontario. Otherwise, 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. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the parties. The parties, through their upper management level representatives shall meet within thirty (30) days of the dispute being referred to them and if the parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in Your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the Commercial Rules of the American Arbitration Association ("Rules") and shall be heard by one arbitrator appointed in accordance with the said Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in Your jurisdiction, the arbitration shall be: (i) held in Your jurisdiction; (ii) settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules"); and (iii) heard by one arbitrator appointed in accordance with the ICC Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but You, may be joined or combined together, without the prior written consent of RIM. Judgment upon the award rendered by the arbitrator may be entered in any Court having jurisdiction thereof. Notwithstanding the foregoing, any breach of this Agreement could cause RIM irreparable harm and You agree that RIM has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding Your violation or threatened violation of this Agreement. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario or the County of New York, New York, as the case may be, for any such claims arising from or related to this Agreement. The parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement. Unless, and only to the extent, prohibited by law in Your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including, without limitation, any correspondence, discovery, submissions, filings, pleadings, oral pleadings and arguments, and orders or judgments.
(e) 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.
(f) Inconsistency. In the event of any conflict between this Agreement and any software license or end user agreement provided with any portion of the SDK, the provisions of this Agreement shall govern, but only to the extent of such conflict. In the event of any conflict between this Agreement and any software license or end user agreement provided in connection with any Updates to the SDK, the provisions of such other license or end user agreements shall govern but only to the extent of such conflict.
(g) Entire Agreement. This Agreement, including all Schedules attached hereto, constitutes the entire agreement of the parties with respect to the subject matter hereof and there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between the parties relating to the SDK other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous provisions, understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the parties, whether oral or written, with respect to the subject matter hereof, and You acknowledge that You have not relied on any of the foregoing in agreeing to enter into this Agreement. This Agreement may be amended at any time upon mutual agreement by the parties. As this Agreement has no specified term, RIM further reserves the right to make changes to the provisions of this Agreement from time to time. In the event of any such revisions that are material in nature, RIM will provide You with written notice to the most recent address or email address provided by You or on Your behalf to RIM, and RIM may provide notice of other revisions by
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posting the revised version of the Agreement at http://www.blackberry.com/legal/index.shtml. Changes to this Agreement 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 You. All other changes to this Agreement shall become effective ninety (90) days after the date RIM provides notice of such changes to You in accordance with this Subsection 25(g). If You continue to use the SDK after the change becomes effective You shall be deemed to have accepted this change.
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SCHEDULE 1
SDKs
RIM's SDKs include the following, as defined below. 1. BlackBerry Java Development Environment (JDE) "BlackBerry Java Development Environment (JDE)" means the fully integrated development environment and simulation tool for building Java Micro Edition applications for Handheld Products. 2. BlackBerry Java SDK (formerly BlackBerry Java Development Environment (JDE) Component Package) "BlackBerry Java SDK" means the development and simulation tool of the BlackBerry Java platform, but does not contain the fully integrated development environment. 3. BlackBerry Java Plug-in (formerly BlackBerry Java Development Environment (JDE) Plug-in for Eclipse) "BlackBerry Java Plug-in" means the fully integrated development environment and simulation tool for BlackBerry Java development, built on the Eclipse plug-in platform. 4. BlackBerry MDS Studio "BlackBerry MDS Studio" means the visual application design and assembly tool, built on the Eclipse plug-in platform, that enables developers to create rich client applications for Handheld Products. 5. BlackBerry WebWorks Plug-ins (formerly BlackBerry Plug-in for Microsoft Visual Studio and BlackBerry Web Development
Plug-in for Eclipse) "BlackBerry WebWorks Plug-ins" means the plug-ins for the Microsoft Visual Studio development environment and the Eclipse development environment that enables developers to create web applications and BlackBerry widgets for Handheld Products. 6. BlackBerry Synchronization Server SDK "BlackBerry Synchronization Server SDK" means the SDK that enables the development of Applications that wirelessly synchronize data in enterprise backend databases with data on Handheld Products. The BlackBerry Synchronization Server SDK includes the following components. "Connector" means an extension or plug-in residing on a server on which BlackBerry Enterprise Server Software is installed that defines an interface between a server-based database and the corresponding application database of a software application residing on a Handheld Product, which extension or plug-in facilitates the synchronization of application data between such databases. "Synchronization Agent" means the component of the BlackBerry Handheld Software that is designed to wirelessly synchronize application data between an application database of a software application resident on a Handheld Product and the corresponding server-based database in accordance with the interface defined by the Synchronization Code for that particular software application. "Synchronization Code" means an extension or plug-in that resides on a Handheld Product that defines an interface between an application database of a software application residing on a Handheld Product and the corresponding server-based database, which extension or plug-in facilitates the synchronization of application data between such databases. "Synchronization Server" means the component of the BlackBerry Enterprise Server Software that is designed to wirelessly synchronize application data between an application database of a software application resident on a Handheld Product and the corresponding server-based database in accordance with the interface defined by the Connector for that particular software application. 7. BlackBerry Attachment Server SDK "BlackBerry Attachment Server SDK" means the SDK that allows custom attachment distillers to be created for the BlackBerry Attachment Service. The BlackBerry Attachment Server SDK includes the following components. "Attachment Service" means the portion of the BlackBerry Enterprise Server Software which facilitates the processing, formatting and transmission of email attachments in certain formats to a Handheld Product.
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"Attachment Service Distiller" or "Distiller" means a software application which forms part of the Attachment Service and which processes and formats email attachments in a specific format in order that the Attachment Service can transmit such attachments through the BlackBerry Enterprise Server Software to a Handheld Product. 8. BlackBerry MDS Runtime "BlackBerry MDS Runtime" means that portion of the BlackBerry Mobile Data System which operates on Handheld Products and provides runtime services for Applications. 9. BlackBerry Application Web Loader "BlackBerry Application Web Loader" means the utility that enables the development of a mechanism to allow Applications to be loaded and installed onto Handheld Products using a PC internet browser. 10. BlackBerry Signing Authority Tool "BlackBerry Signing Authority Tool" means a tool designed to enable the protection of data on Applications by enabling management of access to sensitive APIs and data through the use of public and private signature keys. 11. BlackBerry Device Simulators "BlackBerry Device Simulators" means simulation tools that allow the simulation of Handheld Product behaviour to test and debug Applications. 12. BlackBerry Email and MDS Services Simulator Package "BlackBerry Email and MDS Services Simulator Package" means server simulation tools that allow simulation of transmission of email services over the BlackBerry Device Simulator and a mailbox as well as simulation of MDS Services data traffic. 13. BlackBerry WebWorks Packager "BlackBerry WebWorks Packager" means the standalone tool that aids in the packaging and compilation of BlackBerry widgets for Handheld Products. 14. BlackBerry WebWorks SDK "BlackBerry WebWorks SDK" means the combination of the BlackBerry Widget Packager, documentation, sample code, and BlackBerry Device Simulators. 15. BlackBerry Theme Studio "BlackBerry Theme Studio" means the suite of tools that allow designers and developers to create interactive media and content for Handheld Products. The BlackBerry Theme Studio includes the following components. "BlackBerry Composer" means the illustration and animation tool for designing animated scalable vector graphics for Applications. "BlackBerry Theme Builder" means the graphic design tool that enables designers to produce themes for Handheld Products. 16. BlackBerry Enterprise Application Middleware "BlackBerry Enterprise Application Middleware" means a set of libraries providing enterprise-focused functionality that facilitate access to device information by the enterprise as well as access to enterprise information via Handheld Products. The BlackBerry Enterprise Application Middleware includes the following components. BlackBerry Enterprise Application Middleware Server is a server-based software application that serves as a container for components that optimize, transform, and secure data for interaction with Handheld Products. It also provides administration and logging functionality. BlackBerry Enterprise Application Middleware Server Software is a set of components that optimize, transform, or secure data, and can be contained either within the BlackBerry Enterprise Application Middleware Server, or within a third-party framework. BlackBerry Enterprise Application Middleware Agents are client-side libraries that facilitate receipt of data from server-based applications, as well as provide information from the device back to server-based applications. 17. BlackBerry Push Service SDK
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“BlackBerry Push Service SDK” means the combination of sample client application(s), installable server application(s), code samples, and documentation to allow developers to add push capabilities to their applications. 18. BlackBerry Tablet OS SDK for Adobe AIR “BlackBerry Tablet OS SDK for Adobe AIR” enables building and testing applications for RIM’s BlackBerry Tablet OS, and can be used in conjunction with Adobe’s tools. The BlackBerry Tablet OS SDK for Adobe AIR enables the use of APIs designed for the BlackBerry Tablet OS user interface to build compelling applications as well as leveraging of BlackBerry services such as the BlackBerry Payment Service and BlackBerry ID. Applications developed using the BlackBerry Tablet OS SDK for Adobe AIR can be tested using the BlackBerry PlayBook Simulator. 19. BlackBerry PlayBook Simulator “BlackBerry PlayBook Simulator” means a simulation tool that enables the testing and debugging of Applications developed for the BlackBerry Tablet OS. 20. BlackBerry Tablet OS Native SDK “BlackBerry Tablet OS Native SDK” includes the QNX Momentics Tools and enables building and testing native applications for RIM’s BlackBerry Tablet OS. Native applications developed using the BlackBerry Tablet OS Native SDK can be tested using the BlackBerry PlayBook Simulator. 21. BlackBerry Payment Service SDK
"BlackBerry Payment Service SDK" means the software and APIs that enable the purchase of In-App Products (as defined in Schedule 3) using the BlackBerry Payment Service when integrated into copies of Applications distributed through BlackBerry App World. 22. BlackBerry Analytics SDK
"BlackBerry Analytics SDK" means the combination of APIs, compiled libraries, code samples, and documentation to allow developers to collect data and send such data to the BlackBerry Analytics Service from within their Applications.
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SCHEDULE 2
THIRD PARTY SOFTWARE Third Party Software contained in BlackBerry MDS Studio includes certain Eclipse.org content, specifically certain plug-ins for the Eclipse plug-in platform that have been modified by RIM and are licensed pursuant to one or more open source licenses. These plug-ins include: net.rim.opensource.tools.apache; net.rim.opensource.tools.eclipse; net.rim.opensource.tools.eclipse.datatools; and net.rim.opensource.tools.eclipse.navigator. Further Eclipse.org content, including the Eclipse IDE, is redistributed by RIM with certain distributions of BlackBerry MDS Studio, BlackBerry WebWorks Plug-ins, BlackBerry Java Plug-in, and the BlackBerry JDE Plug-in for Eclipse. Eclipse.org content, including the Eclipse IDE and the plug-ins referenced above, is licensed under the terms of certain open source licenses, including the Eclipse Public License version 1.0. More information on the Eclipse plug-in platform and the licenses applicable to Eclipse.org content is available at www.eclipse.org/legal. Certain SDKs, such as the BlackBerry JDE, may include Sun Java code. Such Sun Java code is licensed to you by Sun and/or its licensors, and is further subject to the provisions of Subsection 16(c). The licenses applicable to such Sun Java code are located in the appropriate software packages and/or license notice files. The QNX Momentics Tools contain various Third Party Software licensed under various open source licenses. Such open source software and the associated open source licenses are identified in the QNX License Guide available at http://licensing.qnx.com/license-guide/ and the corresponding Third Party License Terms List available at http://licensing.qnx.com/third-party-terms/.
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SCHEDULE 3
BLACKBERRY PAYMENT SERVICE SDK 1. Definitions (a) “BlackBerry App World” means the RIM owned and constructed storefront portal through which Applications and certain
services are made available to end users. (b) “BlackBerry In-App Product Guidelines” means the guidelines, or section of the BlackBerry Guidelines, as amended from
time to time, required to be complied with in respect of all products, services and content that are to be purchased using the BlackBerry Payment Service.
(c) “Consumable In-App Products” means In-App Products that are designed to be consumed as they are used by End Users and may subsequently be purchased again by End Users (e.g. virtual fuel consumed in a game Application).
(d) “Commerce Solution for BlackBerry App World” means the payment infrastructure for BlackBerry App World. (e) “BlackBerry Payment Service (currently the Commerce Solution for BlackBerry App World)” means the service provided by
RIM that enables End Users to purchase products, services and content made available through Applications that have been distributed through BlackBerry App World.
(f) “Carrier Networks” means the carrier wireless telecommunications networks in a specified country, which You designate through the Vendor Portal as carrier networks on which wireless handhelds, to which Applications are downloaded, may be activated (and includes any telecommunications networks owned or operated by any other telecommunication carriers in other regions or countries with whom such telecommunications carrier has a roaming agreement).
(g) “End User” means any person, organization or entity which acquires or attempts to acquire an In-App Product, through a copy of an Application made available through the BlackBerry App World, for their own personal use and not for the purposes of resale or rental.
(h) “In-App Products” means the digital products, services and digital content that You wish to make available to End Users through copies of Applications that have been downloaded from BlackBerry App World using the BlackBerry Payment Service and for which RIM has provided notice of acceptance of same to be made available using the BlackBerry Payment Service.
(i) “Vendor Portal” means the portal provided by RIM through which You apply for registration as a BlackBerry App World vendor and submit Applications You desire to have made available through the BlackBerry App World.
Any capitalized terms that are not defined in this Agreement shall have the meaning set out in the BlackBerry App World Vendor Agreement.
2. BlackBerry Payment Service. This Schedule sets out the additional terms and conditions that You must comply with in order to
be able to exercise the rights set out in Subsection 2(i) of the License. 3. Additional Agreements. In-App Products may only be made available through copies of Your Applications that have been
downloaded through BlackBerry App World. The BlackBerry Payment Service will not work with any copy of Your Application distributed through any channel other than BlackBerry App World. You must have a BlackBerry App World Vendor Agreement in good standing with RIM in order to distribute Applications through BlackBerry App World. As with Paid Applications, RIM does not act as the merchant and/or seller of record for In-App Products and if You wish to have In-App Products made available through either Paid Applications or Free Applications, You will have to enter into an agreement with a merchant of record (“MoR”) for the BlackBerry Payment Service (or agreements with multiple MoRs covering various payment methods and jurisdictions) in order to have copies of In-App Products sold using the BlackBerry Payment Service. IN NO EVENT SHALL RIM OR ANY AIRTIME SERVICE PROVIDER (IN ITS CAPACITY AS AIRTIME SERVICE PROVIDER) HAVE ANY LIABILITY WHATSOEVER WITH RESPECT TO PAYMENTS DUE TO YOU BY AN MOR.
4. Application Revenue. You are hereby relieved of Your obligation under the BlackBerry App World Vendor Agreement to pay any portion of Your Application Revenue to RIM in respect of the sales of In-App Products made using the BlackBerry Payment Service.
5. In-App Product Acceptance. When You submit Your Application through the Vendor Portal for acceptance in BlackBerry App World, You must also provide a description of the products, services and content that You wish to make available to End Users through that Application using the BlackBerry Payment Service. You must provide all information about these potential In-App Products reasonably requested by RIM and any applicable MoR, through the Vendor Portal or otherwise, including without limitation any Vendor Content, and upon request a sample or samples of the products, content or service that You wish to have considered for acceptance as an In-App Product. Once a product, service or content is accepted as an In-App Product You will be notified of same, and once the Application through which it is to be made available is accepted and downloaded from BlackBerry App World to an End User’s device, the End User will be able to use the BlackBerry Payment Service to purchase copies of that In-App Product using the BlackBerry Payment Service. In addition to the warranties set out in this Agreement, You hereby warrant, represent and covenant that any product, service or content You wish to submit for consideration as an In-App Product will comply with the then current version of the BlackBerry In-App Product Guidelines.
6. End User Agreement. You shall include an End User agreement enforceable in the jurisdiction(s) in which the In-App Products are to be made available, under which You intend to license or sell the In-App Products, within the In-App Products, or within the Application through which the In-App Products are made available (in either case, the “In-App Product Agreement”). You must include in the In-App Product Agreement the same exclusions of liability and third party beneficiary requirements required to be in the Application EULA under the terms of the BlackBerry App World Vendor Agreement. You acknowledge and agree that neither RIM nor any MoR shall be under any obligation to enforce in any manner the provisions of the In-App Product Agreement, or any other agreement between You and the End User. Any provision of the In-App Product Agreement that is inconsistent with the provisions of this Agreement shall have no force or effect in respect of In-App Products made available through the BlackBerry Payment Service.
7. Access to BlackBerry Payment Service. RIM and/or an MoR may, at any time, in their sole discretion and for any reason whatsoever, including without limitation a breach of the BlackBerry In-App Product Guidelines, excessive returns or
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chargebacks associated with an In-App Product, a payment processor’s refusal to provide services in relation to an In-App Product, Your failure to meet Your fulfillment and/or support obligations set out in this Schedule, or a third party claim made in relation to an In-App Product, with or without advance notice to You, cease to make the BlackBerry Payment Services available in relation to an Application or a particular In-App Product, at all, or in part, including only in specified jurisdictions, and nothing in this Agreement shall constitute RIM’s or any MoR’s commitment to make available , or to continue to make available, the BlackBerry Payment Services in respect of Your In-App Products, or at all. If RIM does not provide You with notice of the removal prior to it taking place, RIM shall do so, by means of the Vendor Portal or otherwise, within a commercially reasonable period following the removal. You further acknowledge that RIM has the right, but has no obligation, to remove an In-App Product from an End User wireless handheld device and/or disable (in whole or in part) the operation of an In-App Product, if the End User’s payment for that In-App Product has been refunded by, or charged back to the applicable MoR, or if the End User has engaged in fraud, or as provided in the BlackBerry In-App Product Guidelines (including without limitation a breach thereof). Notwithstanding the foregoing, You further acknowledge and agree that RIM may, at any time, in RIM’s sole discretion and for any reason whatsoever, remove an In-App Product from an End User’s wireless handheld device.
8. Ongoing Availability of In-App Products/Support of In-App Products. You must continue to make In-App Products available to the End User through the Application with which they were associated on BlackBerry App World for no less than six (6) months after the date of the download of the copy of the Application through which they are made available and in no event less than the period they are required to be available to the End User by the laws in the jurisdiction of the End User. You are solely responsible for, and You agree to provide, End Users with support in making In-App Products they have purchased available to them (including providing End Users with a support contact email address), and with reasonable technical and product support to End Users with respect to the In-App Product features, installation and use, which shall include at minimum any warranty for In-App Products consistent with the laws in the jurisdiction of the End User.
9. Fulfillment/Re-fulfillment Obligations. In-App Products are not fulfilled (i.e. not hosted, delivered or enabled) through BlackBerry App World. Further, neither RIM nor any MoR fulfills any In-App Products, and You are solely responsible for fulfillment of In-App Products, and must satisfy Your fulfillment obligations in respect of each In-App Product. You therefore will be required to act as the fulfillment agent for the applicable MoR for Your In-App Products. If You require additional information about this obligation, You should contact [email protected]. Neither RIM nor any MoR associates In-App Products with Applications in My World or otherwise tracks or displays In-App Products in My World. Unless otherwise expressly agreed to in writing by RIM, for any In-App Product that is intended to be used as part of or in conjunction with the Application through which it was purchased (e.g. a level of a game), You must re-associate (i.e. re-fulfill) the In-App Product with the Application through which it was purchased, upon reinstallation of that Application from My World either: (a) automatically; or (b) upon request by the End User. In the case of Consumable In-App Products, You are only required to re-associate the portion of In-App Products that have not been consumed at the time of reinstallation. Neither RIM nor any MoR is responsible for keeping track of consumption of Consumable In-App Products. If You require additional information about these obligations, You should contact [email protected].
10. License Restrictions. The Carrier Networks and/or countries You select for an Application’s availability will automatically apply to any In-App Products made available through that Application. You acknowledge and agree that In-App Products may be downloaded by End Users with wireless handhelds operating on Carrier Networks and that Carrier Networks includes not only the wireless networks selected by You, but also wireless networks operated by the roaming partners of those carriers (and further includes any wireless networks in the case of RIM proprietary wireless handhelds that are distributed by RIM without the capability of operating on a wireless cellular network). Subject to the foregoing, If You do not have the rights necessary to distribute an In-App Product (or any portion thereof) either globally, or at least to End Users with wireless handhelds activated on both the wireless networks You specify in the Vendor Portal for the Application and on the associated roaming wireless networks, and to permit others to do so, or if You are otherwise unable to control the jurisdictions in which End User may download and/or use that In-App Product, then You must not make, or seek to make, that In-App Product available through the BlackBerry Payment Service.
11. Returns of In-App Products. You acknowledge and agree that the applicable MoR is responsible for and shall have sole discretion in setting and applying the returns policy for instances of In-App Products sold by that MoR.
12. Reporting. RIM will, from time to time, provide You with aggregated data on sales of In-App Products using the BlackBerry Payment Service. Nothing in this Agreement shall prevent RIM from obtaining and publicly disclosing aggregate data relating to the sales of In-App Products using the BlackBerry Payment Service.
13. Privacy. The Consent to Collection of Information provisions in this Agreement shall apply equally to End User Data and personally identifiable information made available in the context of the BlackBerry Payment Service. The enumerated purposes for which such information may be used as set out in the Consent to Collection of Information provision is hereby extended to include any purpose related to the provision or Your use of the BlackBerry Payment Service. Similarly, the Privacy and Data Protection provision in the BlackBerry App World Vendor Agreement applies to Your In-App Products and Your use of the BlackBerry Payment SDK and the references in the Privacy and Data Protection provision to the BlackBerry App World Guidelines shall be deemed to be references to the BlackBerry In-App Product Guidelines.
14. Confidentiality. There is no need for You to provide to RIM any confidential information in relation to the BlackBerry Payment Service, and You acknowledge and agree that RIM has no confidentiality obligation with respect to any information provided by You to RIM under or in relation to Your In-App Products, the BlackBerry Payment Service or the BlackBerry Payment Service SDK.
15. Independent Development. Notwithstanding any other provision of this Agreement, You acknowledge and agree that RIM is also a developer and licensee of digital products, services and content that operate on RIM and RIM affiliates’ proprietary software platforms, and that RIM may currently or in the future develop, use, market, promote, distribute and/or license products and/or services and/or content that are similar to and/or competitive with any In-App Products, and that no provision of this Agreement prohibits or limits in any manner RIM’s ability to do so.
16. BlackBerry Payment Service Availability. You acknowledge and agree that RIM is under no obligation to continue to make available the BlackBerry Payment Service or to make available any subsequent versions of the BlackBerry Payment Service SDK. You further acknowledge and agree that RIM may add or remove functionality with respect to the foregoing and may cease to make available the foregoing at any time without any obligation or liability to You. You shall be solely responsible for
BlackBerry SDK License Agreement 021111 cl 17
any modifications that may be required to Your Applications as a result of any modifications to or subsequent versions of the BlackBerry Payment Service and/or Payment Service SDK (including without limitation the addition or removal of functionality with respect to the foregoing).
17. Distributable Code. Notwithstanding any other provision of this Agreement, You may not modify all or any portion of the Payment Service SDK, including without limitation Distributable Code that forms part of the Payment Service SDK.
18. Additional Payment Service SDK License Restrictions (a) You shall not use the BlackBerry Payment Service for making available, and shall not provide as part of an In-App Product,
software updates, upgrades, or modifications to the associated Application or any executable file formats. However, You may enable (i.e. unlock) functionality that already exists within an Application through an In-App Product (e.g. unlock a level within a game). Updates and upgrades for Your Applications are treated as new versions of Your Applications and must be submitted through the App World submission process described in the BlackBerry App World Vendor Agreement and cannot be made available as In-App Products.
(b) With respect to the BlackBerry Payment Service payment processes You shall only rely on the user interface functionality provided by means of RIM APIs, and shall not use, invoke, or present to any End User, any other user interface functionality.
19. Termination. Notwithstanding any other provision of this Agreement, upon termination of this Agreement You shall immediately prevent any further purchases of In-App Products through Applications using the BlackBerry Payment Service.
20. Conflict. In the event of any conflict between the provisions of this Schedule 3 and the remainder of this Agreement the provisions of this Schedule 3 shall govern to the extent of such conflict.
BlackBerry App World™ Vendor GuidelinesRIM recognizes that the contributions of application developers are fundamental to the success ofthe BlackBerry App World™. The BlackBerry App World™ will strive to deliver the best applicationdiscovery experience of high quality offerings for BlackBerry users while simultaneously providingapplication developers with significant exposure and placement. RIM shall use the followingguidelines when determining whether or not to accept an application submitted by a developer:
Applications must be the property of and/or validly licensed to the vendor and must notviolate intellectual property rights and the inclusion of your applications in the BlackBerry AppWorld must not violate any agreements to which you are a party or of which you areotherwise aware;Any information shall be true, accurate, current and complete and updated as required. Anyinformation and intellectual property (excluding the applications) that is provided to RIM or itsagents as part of or along with an application, including, without limitation, userdocumentation and marketing materials and trademarks, designs and copyright therein("Information"), must be the property of and/or validly licensed to the vendor and must notviolate intellectual property rights. The inclusion of Information in the BlackBerry App World orelsewhere must not violate any agreements to which you are a party or of which you areotherwise aware;Applications must be functionally stable in all material respects on the designated targetdevices and must not interfere with, degrade or adversely affect any software (including,without limitation, other third party applications), service, system, network or data used byany person including RIM or an Airtime Service Provider or otherwise have a detrimentaleffect upon RIM and/or its brand, an Airtime Service Provider or any of their respectivecustomers or products or services;The application must alert users to any potential airtime usage charges, if applicable;Applications must not contain or link to any content, or perform any function, that is illegal(e.g. against any criminal, civil or statutory law or regulation), including, without limitation, anylibel, obscenity, breach of privacy, infringement or misappropriation of any intellectualproperty rights and/or other proprietary rights of any third party (including, without limitation,unlawfully circumventing any digital rights management protections), and must not contain orlink to any content, or perform any function, that is abusive, belittling, harassing, deceptive,malicious or otherwise inappropriate, or provides for any portion of the suggested retail priceto be made available to the end user to risk for possible monetary gain within suchapplication;Applications must be: (i) commercially available; (ii) designed for installation by end userswithout further substantial support; (iii) provided to RIM in object code format only; and (iv)designed for general end user usage and not designed, developed, customized or modifiedfor a specific customer or end user. Cryptographic functionality in Applications must belimited to the following: authentication, digital signature, or copyright protection.Authentication is defined as access control where there is no encryption of files or text exceptas directly related to the protection of passwords, Personal Identification Numbers(PINs) orsimilar data to prevent unauthorized access. If any cryptographic functionality is contained inany application, such cryptographic functionality cannot be easily changed by the end user;Vendor must: (i) have obtained all necessary permits, licenses, registrations, authorizations,approvals and declarations (including all necessary export permits) for the distribution of theapplications and Information to RIM and on or through the BlackBerry App World; and (ii)provide RIM with any and all information requested by RIM so that RIM may obtain any
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Questions? Visit BlackBerry App World Vendor Support.
necessary permits, licenses, registrations, authorizations, approvals and declarations(including all necessary export permits) to distribute the applications through BlackBerry AppWorld;Applications must be submitted in COD/BAR file format generated using RIM's BlackBerryJava Development Environment (JDE) and/or RIM's JDE Plug-in for Eclipse, and be subjectto an agreement relating to the use of those development tools ("BlackBerry SDKAgreement") between RIM and the vendor (or where the vendor is not the original developerof the application, between RIM and the developer);Applications and Information must not violate any terms or conditions of the BlackBerry SDKAgreement or any other agreements applicable to the applications or Information. The currentversion of the BlackBerry SDK Agreement can be found here: http://www.blackberry.com/legal;The foregoing points are guidelines only, and RIM reserves the right to accept, deny orremove any application from the BlackBerry App World at any time.
Please note that notwithstanding preliminary or final acceptance of an application by RIM forinclusion within the BlackBerry App World, such application may not be made available in allterritories and/or to customers of all airtime service providers due to applicable laws in a specificterritory and/or restrictions, including, without limitation, service terms, imposed by the applicableairtime service provider on availability of applications on its network.
Please check back often as updated guidelines may be posted by RIM from time to time.
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Digital River Terms and Conditions (pulled 5/11/11) his Agreement may only be entered into by you if you are over the age of majority under the laws of your jurisdiction. Otherwise, you are expressly prohibited from entering into this Agreement, and should have your parent or guardian enter into this Agreement on your behalf. By electronically accepting this Agreement, you represent and warrant to us that you are over the age of majority under the laws of your jurisdiction. VENDOR AGREEMENT PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE VENDOR PORTAL ("You") ON THE ONE HAND, AND DIGITAL RIVER, INC. ("DR-‐Inc") AND DIGITAL RIVER IRELAND LIMITED ("DR-‐Ireland") ON THE OTHER (DR-‐INC AND DR-‐IRELAND EITHER INDIVIDUALLY OR COLLECTIVELY AS SET FORTH IN THIS AGREEMENT, "DR"). Please print a copy of this Agreement for Your records. This Agreement sets out the terms and conditions under which DR is prepared to make Your Applications available to End Users through the DR Commerce Solution on the BlackBerry App World. Before DR will offer copies of Your Applications for sale to End Users through the DR Commerce Solution, You must first agree to the terms and conditions of this Vendor Agreement (the "Agreement"). Your acceptance of this Agreement constitutes an offer to DR. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND TO THIS AGREEMENT THE PERSON, ORGANIZATION OR ENTITY LISTED ON THE VENDOR PORTAL. The provision of notice to You that any of Your Applications have been approved for resale through the DR Commerce Solution portion of the BlackBerry App World shall constitute DR's acceptance of this Agreement whereupon this Agreement shall form a binding agreement between the parties. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You and DR agree as follows: 1. DEFINITIONS The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where they are defined. A. "Application" means software programs (or other downloadable content, identified in the Vendor Portal as types of products which are eligible for sale
through the DR Commerce Solution) submitted by Vendor, and in relation to the use of which End Users are required to pay fees. B. "Authorized Network" means a wireless network which is owned or operated by a carrier (or carriers with whom that carrier has roaming agreements in place) that You indicate through the Vendor Portal You are legally permitted, and wish, to have an Application made available for use on wireless handhelds activated thereon. C. "BlackBerry App World" means the RIM owned and constructed portal that supports, among other things, the purchase of Applications through the DR Commerce Solution, which will be accessible by means that include without limitation RIM proprietary handheld software operating on wireless handheld devices. D. "DR Commerce Solution" means the DR provided functionality through which DR sells Applications to End Users through the BlackBerry App World. E. "DR Purchase Price" means the purchase price, due to You from DR, for each copy of an Application purchased from You by DR for DR's resale through the DR Commerce Solution, which shall be calculated as (a) for each product purchased for DR's resale which resale is processed by DR prior to the start of the calendar day US Central Time on May 17, 2010, Eighty Percent (80%) of the Suggested Retail Price (less any Taxes reflected in the Suggested Retail Price) for each copy of each Application, and at DR's sole option net of any currency exchange and cross border transaction fees; and (b) for each product purchased for DR's resale which resale is processed by DR on or following the start of the calendar day US Central Time on May 17, 2010, Seventy Percent (70%) of the Suggested Retail Price (less any Taxes reflected in the Suggested Retail Price) for each copy of each Application, and at DR's sole option net of any currency exchange and cross border transaction fees. F. "End User" means a person, organization or entity which purchases or wishes to purchase a copy of Your Application through the DR Commerce Solution which is intended for its own use and not for resale. G. "End User Data" means personally identifiable information about an End User (or information that can be used, together with other information or data, to personally identify an End User) provided in connection with a Transaction through the DR Commerce Solution, which may be collected, used or disclosed (in whole or in part) by or on behalf of DR. H. "EULA" means an end user license agreement between You and an End User for a copy of an Application purchased through the DR Commerce Solution, which an End User is required to enter into as a condition of the End User's use of an Application. I. "RIM" means Research In Motion Limited and its affiliates, and their respective successors and assigns.
J. "Suggested Retail Price" means the price that You provide through the Vendor Portal as the recommended selling price of a copy of an Application, as may be changed from time to time by You through the Vendor Portal. K. "Taxes" means any taxes payable by an End User with respect to a Transaction (it does not include any applicable taxes due to You from DR on Your sale of a copy of an Application to DR for resale, which are addressed in Section 4(B) of this Agreement). L. "Transaction" means the sale of a copy of an Application through the DR Commerce Solution to an End User through a single order. M. "Vendor Portal" means the online interface provided by RIM through which You apply to have copies of Applications sold by DR through the DR Commerce Solution, and through which you will accept this Agreement and provide certain required information regarding the Applications which you desire for DR to sell through the DR Commerce Solution. 2. VENDOR PARTICIPATION REQUIREMENTS A. DR will not make available copies of Applications through the DR Commerce Solution if You and Your Applications do not meet and follow the following terms and conditions: (1) Your Application must meet the minimum requirements set out in the BlackBerry App World Guidelines, as amended from time to time, which may include by way of example and not limitation requirements and restrictions on compatibility with RIM BlackBerry� wireless handheld devices and software, performance requirements, operational requirements, and content or use requirements (the "BlackBerry App World Guidelines"). If any of Your Applications do not meet the BlackBerry App World Guidelines, DR may elect not to offer copies of that Application, or cease sales of copies that Application, through the DR Commerce Solution. (2) The information You provide to DR through the Vendor Portal in connection with You and Your Applications shall be accurate and truthful, and You shall immediately update such information through the Vendor Portal in the event any such information changes. (3) End Users must place orders themselves through the DR Commerce Solution. You are not permitted to place orders on behalf of End Users, nor to authorize anyone to place orders on an End User's behalf.
(4) You will provide DR with all necessary product information through the Vendor Portal so that End Users do not need to contact You for additional information prior to a sale by DR of a copy of an Application. (5) You shall provide a Suggested Retail Price through the Vendor Portal for copies of each of the Applications which You wish to make available through the DR Commerce Solution. The Suggested Retail Price may only be provided to DR in up to the number of currencies and only in the currencies and in the manner indicated in the Vendor Portal from time to time. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement or in the Vendor Portal, while You may provide Suggested Retail Prices for copies of Your Applications, DR is solely responsible for setting the price at which copies of Your Application will be sold by DR through the DR Commerce Solution, which may reflect Your Suggested Retail Price at DR's discretion. (6) You will not submit through the Vendor Portal any products other than Applications (such as but not limited to products which are fulfilled physically), unless otherwise agreed to in writing by You and DR. If DR determines at any time that You or any of Your Applications do not meet or follow any or all of the provisions of this Agreement, or that You are otherwise in breach of any provision of this Agreement, DR may immediately suspend selling copies of Your Applications until such noncompliance and/or breach is remedied, and/or terminate this Agreement for uncured breach in accordance with the terms of Section 7(A) of this Agreement. 3. GENERAL TERMS OF THIS AGREEMENT A. Submitting Applications; Approval Process. You will submit to DR, through the Vendor Portal, each Application You would like DR to make available through the DR Commerce Solution, together with such information as is requested by DR or on DR's behalf by RIM, by means of the Vendor Portal or otherwise, in connection with such Application (including by way of example and not limitation, the Authorized Network(s), the name of the Application, a description of the Application, compatibility and resource requirements for the Application, a copy of the executable Application for testing, and the Suggested Retail Price of the Application). Your submission of an Application through the Vendor Portal constitutes Your request for DR to sell copies of such Application through the DR Commerce Solution. DR and RIM shall have the right to review and test such Application to ensure conformance with the Blackberry App World Guidelines before offering Your Application for sale through the DR Commerce Solution, but shall have no obligation to do so. You understand and acknowledge that in order for Your Applications to be made available for sale through the DR Commerce Solution through the Blackberry App World, in addition to this Agreement You must enter into an agreement with DR's service provider RIM for, among other purposes, the purposes of evaluating and testing Your Applications. The provision of notice to You
that Your Application has been approved for resale through the DR Commerce Solution shall constitute approval of Your request for DR to sell copies of such Applications. DR and/or RIM, on DR's behalf, shall notify you if a submitted Application does not meet the BlackBerry App World Guidelines, or if DR has elected not to make available any of Your Applications through the DR Commerce Solution or to not make them available in specific jurisdictions. Notwithstanding the foregoing, You acknowledge that DR may, in DR's sole discretion with or without advance notice, decline to sell any one or more of Your Applications, at any time, at all, or in specific jurisdictions, and nothing in this Agreement shall constitute DR's commitment to sell copies of Your Applications. You acknowledge and agree that DR may sell copies of applications and/or other downloadable content provided by others that may be similar to or competitive with Your Applications, and that nothing in this Agreement shall be construed as granting You any exclusivity within the Blackberry App World with respect to any of Your Applications and/or other downloadable content resold by DR. B. Non-‐US Transactions. With respect to the sale of copies of Applications through Transactions with End Users located in certain countries outside of the United States as determined by DR-‐Inc (the "Non-‐US Transactions"), DR-‐Ireland and not DR-‐Inc will be the seller and merchant of record of such copies of Applications and will be a party to this Agreement solely with respect to its performance of Non-‐US Transactions, and any references to "DR" in this Agreement in connection with Non-‐US Transactions shall be construed as references to DR-‐Ireland and not DR-‐Inc. DR-‐Inc may, upon notice to You, utilize any other corporate affiliate of DR-‐Inc for the sales of copies of Your Applications to End Users located outside of the United States in certain countries as determined by DR-‐Inc. C. Legal Relationship; Sales of Copies of Your Applications. As an owner, licensor and/or distributor of Applications, You will provide to DR, through the Vendor Portal, a master copy of Your Application to be made available to End Users through the Commerce Solution. You hereby grant: (a) to DR and RIM, the right to make copies of Your Applications for its own internal use and testing purposes, for the purposes of evaluating and ensuring Your Applications comply with the BlackBerry App World Guidelines, and for the purposes of RIM's provision of fulfillment and ancillary services as DR's fulfillment agent; and (b) to DR, the right (which right with respect to fulfillment may be sublicensed by DR to RIM or to another third party fulfillment service provider, at DR's option) to make a copy of that Application when an order for an Application is placed through the DR Commerce Solution by an End User, which copy DR shall purchase from You and resell to that End User along with the right to use the Application (which right to use is subject to the terms and conditions set out in Your EULA), and DR shall purchase such copy from You for the DR Purchase Price on the terms set forth in this Agreement. You grant to DR a worldwide right to use the materials and information You provide in connection with each such Application to facilitate DR's sale of copies of each such Application through the DR Commerce Solution and the provision of related services by RIM.
You further agree to comply with the terms of all agreements entered into between You and RIM. DR and/or RIM shall have full control over the design, operation, features and functionality (including available End User payment methods), and End User terms and policies applicable to the Blackberry App World and DR Commerce Solution. Title to a copy of an Application sold through the DR Commerce Solution to an End User shall pass from DR to that End User upon the completion of both: (a) DR's receipt of payment for that Application; (b) the provision to the End User of access to download the Application. D. Your EULA. You shall include the EULA under which You wish to license Your Applications within Your Application for the particular jurisdictions in which the Application is to be made available. This EULA shall at minimum, (i) include provisions excluding DR and RIM (not necessarily by name, but at least by role, e.g. channel partners and associated service providers) from any liability whatsoever in relation to Your Application, including without limitation in relation to the sale or use of copies thereof, or the performance or non-‐performance of Your Applications, (ii) shall make DR and RIM third party beneficiaries to the EULA with respect to these provision(s), and (iii) shall include an email address (and may include a phone number) through which End Users can obtain support from You as required by Section 3(F) below. Further, the EULA shall also indicate any jurisdictions in which End Users may not use an Application, and shall identify any export restrictions. DR shall not remove, or have removed, any EULA from any Application or copy thereof, and shall state in its terms of sale to the End User, that their right to use the copy of the Application sold to them is subject to the terms and conditions set out in the EULA in Your Application. You agree and acknowledge that any EULA You enter into with an End User is an agreement between You and the End User, and DR shall not be a party to that EULA unless DR is in the role of an End User of Your Application. Notwithstanding any provision in Your EULA, You acknowledge and agree that DR may make it a term of sale to an End User who obtains a copy of Your Application through the DR Commerce Solution that the Application be downloaded, installed and/or used only on a RIM proprietary handheld software platform on a wireless handheld device. You shall not include any provision in Your EULA that imposes any obligations on DR or its service providers . E. End User Data. Because DR is the reseller to End Users of copies of Your Applications, DR is the party with whom the End User is transacting business for each Transaction. As such, the End User is giving his/her/its End User Data to DR. You agree that End User Data obtained in connection with a Transaction shall not be owned by You, and You shall not have any rights to such End User Data. If DR or its service providers provides You with or makes accessible to You any End User Data, You shall only use such End User Data for the purpose for which it was provided to You under this Agreement. With respect to any End User Data provided to You or made accessible to You by DR or its service providers, You agree that You: (a) shall comply with all applicable privacy legislation and, without limiting the generality of the foregoing, handle such End User Data in full compliance with Your privacy policy; (b) shall use best efforts to ensure the confidentiality of such End User Data
via encryption or similar means; and (c) shall not use such End User Data to offer any of Your products or services to such End Users or any other party in violation of the CAN-‐SPAM Act of 2003 (Controlling the Assault of Non-‐Solicited Pornography and Marketing Act) or other applicable laws, rules or regulations. If You provide End User Data to DR or its service providers, You represent and warrant that You will have obtained any necessary consent from the End User to disclose the End User Data to DR and/or its service providers. Nothing in this Agreement shall restrict You from using for Your lawful business purposes (in compliance with Your privacy policy) any data provided to You directly by an End User in connection with that End User's registration or use of an Application, provided that in all events You comply with all applicable privacy legislation. F. Support. You are solely responsible for, and agree to provide, (a) reasonable operational and technical support and assistance to End Users in connection with their installation/un-‐installation, use, and operation of Your Applications made available through the DR Commerce Solution, and (b) a warranty for Your Application which is at a minimum consistent with the requirements of the laws in the jurisdiction of the End User. You must provide to DR, by means of the Vendor Portal, with, at a minimum, an email address for technical and operational support. Please note that neither DR nor RIM will provide software help-‐desk or other forms of technical support concerning Your Application. DR's support (which may be provided by RIM on DR's behalf) is limited to assistance to End Users with the use of the DR Commerce Solution. G. Export. As requested by DR, You agree to provide to DR, through the Vendor Portal or by email to [email protected] as requested by DR, with current, up-‐to-‐date and specific codes and classifications through the Vendor Portal or other related information, under any export control laws applicable to any Application that is made, or that You wish to have made, available through the DR Commerce Solution (including without limitation provision of appropriate Export Control Classification Numbers ("ECCNs") and license exception codes). The DR Commerce Solution is designed only to accept software that meets, among others, the following criteria: (1) generally available to the public by being sold, without restriction, from stock at retail selling points by electronic transactions; (2) designed for installation by the End User without further substantial support by the supplier; and if applicable (3) the cryptographic functionality cannot be easily changed by the End User. You agree You may not submit Applications that do not meet the above criteria. You are solely responsible for obtaining any government related export, import, use, supply and/or transfer permits (collectively, "Export Permits") required for any Applications and shall obtain all such Export Permits prior to submitting any such Applications to DR and/or its service providers. In no event shall DR and/or its service providers be required to obtain any Export Permit needed to receive or allow the download of any Application, unless otherwise agreed to in writing by DR. You agree that You will not submit Applications which require a US Government review prior to availability without also submitting at the same time a valid Commodity Classification Tracking System (CCATS) number.
Federal agencies have also banned or regulated trade between U.S. entities and certain organizations, businesses and persons. DR (either directly or through RIM on DR's behalf) retains the right to make its own determination, at its sole discretion, as to whether any proposed sales transaction might put DR and/or its service providers in violation of any applicable laws, rules and regulations which control, regulate, prohibit or otherwise affect the export, import or use of Your Application to or within the country to which the Application will be fulfilled, and may refuse to engage in any such Transactions without prior notice to You. H. DR's Trademarks; Publicity. DR's trademarks, service marks and business names (DR's "Trademarks") are owned or licensed solely and exclusively by DR and its licensors. You may not make any press release regarding this Agreement which includes DR's name, logo, or otherwise refers to DR, or use DR's name or logo to refer to DR, or use DR's Trademarks, without DR's express prior written consent to do so (for the avoidance of doubt, You may issue a press release indicating that Your Application is available through the Blackberry App World without DR's consent, provided such press release does not use DR's name, logo, or DR's Trademarks, or otherwise refer to DR). Any use by You of DR's Trademarks shall inure solely to DR's benefit. You agree, upon DR's demand, to promptly stop or alter any of Your uses of DR's Trademarks which DR deems to be improper or which may have the potential to put DR's Trademark rights at risk. I. Fulfillment. If necessary in order for DR to reproduce Your Application(s) and deliver same to End Users, You will cooperate with the reasonable requests of DR and RIM (who will be providing delivery and ancillary fulfillment services on behalf of DR) in relation to their fulfilling orders for copies of Your Application(s) to End Users. 4. PAYMENTS AND RETURNS A. Sale of Copies of Applications. For each copy of Your Application that DR sells to an End User, DR will purchase that copy from You for the DR Purchase Price. All amounts which DR owes You for the sale of copies of Your Applications shall be placed in a general in-‐house account maintained by DR (which for the avoidance of doubt shall not be an account specific to You), and DR will pay You from that account as described below. You will not be entitled to interest on amounts held in DR's general in house account while such amounts are in DR's possession. B. Taxes. The DR Purchase Price paid to You for sales of copies of Your Applications shall be inclusive of any applicable sales or use, value added and/or other consumption-‐based taxes ("B2B Taxes"). If there are any B2B Taxes which You are required to collect from DR on Your sale of a copy of an Application to DR, You will be solely responsible for the payment of any and all such applicable B2B Taxes (or Your income derived therefrom) from the DR Purchase Price amounts paid to You by DR. You agree that You shall not have any right to separately invoice DR for B2B
Taxes on Your sale of a copy of an Application to DR, except that where law requires a separate invoice of any B2B Taxes, you shall have the right to send any such invoices to DR, marked "paid" as DR's payment of any amounts in such invoice(s) shall be considered already paid as part of the DR Purchase Price due to You from DR. In the event DR determines that withholding taxes are applicable to any payments due to You from DR, You agree and acknowledge that such payments by DR shall be net of any applicable withholding taxes. You shall provide to DR all data reasonably necessary for DR to support any B2B Taxes included in the purchase price of a copy of an Application. For the avoidance of doubt, under no circumstances shall DR be deemed to be providing tax advice or consulting services to You. You shall be solely responsible for, and shall hold DR harmless from and against, the calculation of B2B Taxes due from DR on Your sale of a copy of an Application to DR, and any failure to collect B2B Taxes from DR on Your sale of a copy of an Application to DR at the time of sale to DR (including without limitation interest and penalties that result from any failure). C. Returns and Refunds. DR, as the seller and merchant of record for the DR Commerce Solution, is responsible for setting and applying the returns policy applicable to the DR Commerce Solution. If DR, at its option, provides a right of return for Applications made available through the DR Commerce Solution, and DR accepts the return of an Application in accordance with such right of return, You shall also accept the return of that particular copy of the Application, and shall refund the amount paid to You by DR in relation to that Application to DR, at DR's option, either by paying this sum to DR (either through Your PayPal account or as otherwise agreed by DR) or by way of DR setting off this amount against other monies otherwise owing to You. You further agree and acknowledge that DR will treat any non-‐fraudulent Chargeback or other non-‐fraudulent End User-‐, bank-‐ or payment processor-‐initiated reversal of a previously completed payment as a validly accepted return and a refund validly provided by DR. D. Chargebacks, Fraud and Suppressed Orders. A "Chargeback" is another form of refund that happens when PayPal, a credit card processor, or acquiring bank unilaterally revokes a prior transaction, which may be done under the rules of PayPal, the credit card banking system for such reasons as fraud or suspected fraud, End User complaint, or other reasons determined at the sole discretion of PayPal, the credit card processors and/or banks. DR makes no promises to You as to whether or how PayPal, credit card processors and/or banks will interpret their rules or rights concerning Chargebacks. You acknowledge that PayPal and credit and debit card transactions through the DR Commerce Solution are �non-‐swiped,' �card not present' Transactions and have no physical signature from an End User, and thus are subject to a higher level of Chargeback activity compared to physical credit card Transactions with wet-‐ink signatures. For each Chargeback or other payment reversal in relation to a copy of Your Applications sold through the DR Commerce Solution, You agree to allow DR to offset the amount of such Chargebacks and payment reversals against amounts due
to You from DR, or invoice You for such amounts if DR is unable to offset such amounts. (For the avoidance of doubt, DR will be responsible for any chargeback processing fees imposed by a bank or payment processor, but not for the amount charged back.) Further, any sale of a copy of an Application where the fulfillment of that copy of the Application has been made by or on behalf of DR upon receipt of a valid payment authorization but is subsequently rejected or cancelled prior to settlement by DR, the merchant bank or payment processor, will not be treated as a completed sale to an End User by DR for the purposes of calculating payments due to You. This paragraph shall survive the termination or expiration of the Agreement. E. Payment Method and Frequency. Within thirty (30) calendar days of the end of each calendar month (except as otherwise stated below): (1) DR will make available to You a report in csv or similar format which shows each Transaction involving the sale of a copy of Your Application(s) for which DR processed payment during that calendar month and the calculation of the DR Purchase Price for the copy of the Application sold in each such Transaction, and the aggregate amount of DR Purchase Price amounts for that calendar month; and (2) DR will send to You a payment of accrued DR Purchase Price amounts on sales of copies of Your Applications, net of returns, chargebacks, applicable withholding taxes, and other amounts due to DR under this Agreement ("Due Amounts"). You acknowledge that DR may split payment of a Due Amount into multiple contemporaneous payments based on PayPal requirements. Payments shall be made to You via PayPal. DR's payment obligations to You are subject to the following: (1) DR may determine to hold back all or a portion of Your Due Amounts if DR has a reasonable basis to believe that it will likely be necessary to cover future refunds, charges against Your account, or other liabilities You may owe to DR. DR may also hold back all or a portion of Your Due Amounts if DR believes that the funds represent fraudulent transactions or involve other kinds of illegal activities. DR will only hold back those amounts which DR determines are reasonable under the circumstances. DR's statements or other communication from DR will note how much DR is holding back. DR will keep any held back amounts only for a reasonable time as determined in DR's sole discretion, and will promptly pay to You any remaining held back amounts after that reasonable time has passed. Regardless of any hold back DR may choose to keep, You agree to pay DR, upon demand, for any shortfall owed to DR due to refunds, Chargebacks, fraud, suppressed orders, or other fees for services rendered if they cannot be offset from Your account within ninety (90) calendar days of the date DR first seeks to offset such charges. If DR actually keeps (or sets off) any of the funds DR has held back against amounts due to You, DR will do so in a manner that DR believes fairly reflects Your liability owed to DR, and DR will note the set-‐off and provide You with an explanation of the set-‐off. DR shall be entitled to set off, against any holdback funds, any amount needed to reimburse DR for DR's costs or expenses of defending against any claims against DR related to Your breach of this Agreement, including an amount to pay any attorneys' fees DR incurs associated with any such claims.
(2) Any and all amounts payable to You under this Agreement shall be paid to You in the currency or currencies indicated in the Vendor Portal from time to time (as of April 2010 the only payment currency available to You is United States Dollars (USD)), and shall be paid into Your PayPal account, or by such other DR authorized payment method as may be made available from time to time. (3) You may not request that DR make payments of Due Amounts to a third party on Your behalf. (4) If You do not object in writing to amounts retained by DR within thirty (30) calendar days of a given payment of a Due Amount from which such amounts are retained, or to an invoiced amount by the payment due date specified on the invoice, You shall be deemed to have acknowledged the correctness of that invoice or amount and to have waived its right to dispute that invoice or amount. Your dispute as to a portion of any invoice or amount owed shall give You the right to withhold or delay payment of only the disputed amount of such invoice or amount owed, and not the undisputed portion. 5. REPRESENTATIONS, WARRANTIES AND COVENANTS A. Mutual. You and DR each make the following representations, warranties and covenants to the other: (1) it has full right, power and authority to enter into and fully perform its obligations under this Agreement, including without limitation the right to bind any party it purports to bind to this Agreement. (2) its execution, delivery and performance of this Agreement do not conflict with any other agreement to which it is a party or by which it is bound. B. By You. You make the following additional representations, warranties and covenants to DR: (1) You are the owner or fully authorized licensee of all intellectual property and other proprietary rights to Your Applications submitted through the Vendor Portal, and have all rights necessary to grant the rights granted to DR hereunder and to allow DR to sell copies of Your Application to End Users. DR's sale of copies of Your Applications to End Users on Authorized Networks will not violate any laws concerning export over national borders, including laws involving encryption technology. (2) To the best of Your knowledge, the offer to sell, sale, use, copy, import, storage and/or distribution of Your Applications or copies thereof, by DR, or by third parties on behalf of DR, as contemplated hereunder, will not infringe, violate, or misuse, or
constitute a misappropriation of, any third party's intellectual property or other proprietary rights anywhere in the world. (3) The Applications You submit through the Vendor Portal, and any content and materials You provided in connection with these Applications, are not subject to licensing or usage fees to You which DR would be required to pay or any third party for which DR may be liable or responsible for payment. Any content and materials You provide through the Vendor Portal or otherwise in connection with Your Applications being made available through the DR Commerce Solution are accurate, and do not violate any applicable laws or regulations concerning advertising claims or other forms of consumer protection laws. (4) The Applications You submit through the Vendor Portal, including all content within and/or made available directly or indirectly by means of the Applications, is not libelous, does not slander others, does not contain obscene or pornographic material, is not illegal to use and does not otherwise violate the BlackBerry App World Guidelines in effect at the time of submitting each Application. Without limiting the foregoing, the Applications You submit through the Vendor Portal do not contain any viruses, Trojan horses, malware, spyware, adware or other disruptive software, or any software code which is designed to disrupt, damage, or perform unauthorized or illegal actions on a computer system, or which transmits information or other data from a user's computer without notice to and the express prior consent of the End User. The Applications You submit through the Vendor Portal are not designed or usable as a tool for processing e-‐mail for mass mailing ("spamming" tools or the like). (5) With respect to any promotion by You of Your Applications that are made available through the DR Commerce Solution, You will not display any inaccurate or misleading information concerning Your identity or location, or inaccurate or misleading information concerning the role of DR as the seller and merchant of record to the End User for purchases of copies of Your Applications. (6) You will not engage in deceptive trade practices, or directly solicit End Users or potential End Users who have not affirmatively consented to receive direct solicitations from You, or otherwise violate any laws, rules or regulations applicable to the sale of copies of Your Application through the DR Commerce Solution to End Users on Authorized Networks and the conduct of Your business. (7) You will not use commercial e-‐mail (solicited or unsolicited) to market Your Application if that use of commercial e-‐mail violates any applicable laws or regulations regarding the use of commercial e-‐mail. You will comply with any legal obligations to provide proper labeling and content within Your marketing e mails, and to provide opt-‐in or opt-‐out capabilities to recipients and comply with any such requests. Subject to any approvals required pursuant to Section 3(H) above, any advertising or other marketing materials that mention DR, the BlackBerry App World, or the DR Commerce Solution, or which contain hyperlinks to the DR
Commerce Solution or BlackBerry App World, must be in compliance with all laws concerning advertising and marketing for the territories where You deliver those materials. You are responsible for compliance with all of the above, whether You provide the e-‐mails or advertisements on Your own or use the services of a third party. (8) You are the owner, licensor and/or distributor of the Applications with all rights necessary to allow DR to purchase copies of the Applications from You for resale. (9) The Applications are designed for operation and use on RIM proprietary software operating on wireless handheld devices. C. By DR. DR makes the following additional representations, warranties and covenants to You: (1) Except to the extent that this prohibition is precluded by law, DR shall not modify any Application without Your express written permission, and may not reverse engineer, disassemble or decompile any Application. 6. DISCLAIMER OF WARRANTIES; INDEMNITY; LIMITATION OF LIABILITY A. Disclaimer of Warranties. Except as expressly set out herein, DR provides DR's valued added reseller services to You on an "AS-‐IS, AS AVAILABLE" basis and makes no promises as to the percentage up-‐time of the Vendor Portal, BlackBerry App World or DR Commerce Solution, or that the Vendor Portal, BlackBerry App World or DR Commerce Solution will operate completely without error. The Vendor Portal, BlackBerry App World and DR Commerce Solution are subject to change without notice. DR HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE QUALITY OR AVAILABILITY OF THE VENDOR PORTAL, BLACKBERRY APP WORLD OR DR COMMERCE SOLUTION AND ANY OTHER SERVICES PROVIDED BY DR PURSUANT OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DR DISCLAIMS ANY WARRANTY OR LIABILITY RESULTING FROM OR REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE DR COMMERCE SOLUTION, BLACKBERRY APP WORLD, VENDOR PORTAL, AND/OR DR ADMINISTRATIVE INTERFACE OR ANY INFORMATION ACCESSIBLE THEREON, OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM YOUR USE OF, OR INCLUSION OF YOUR APPLICATIONS ON, THE SAME. DR DOES NOT REPRESENT THAT THE VENDOR PORTAL, DR COMMERCE SOLUTION, BLACKBERRY APP WORLD AND ADMINISTRATIVE INTEFACE ARE FREE OF VIRUSES OR MALICIOUS CONTENT DESPITE ANY EFFORTS BY DR AND ITS SERVICE PROVIDERS TO PREVENT THE INCLUSION OF SUCH CONTENT, AND YOU ACCEPT ALL RISK AND LIABILITY IN CONNECTION WITH YOUR USE OF THE VENDOR PORTAL AND ADMINISTRATIVE INTERFACE. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A GUARANTEE, REPRESENTATION OR
WARRANTY AS TO THE LEVEL OF SALES OF COPIES OF YOUR APPLICATIONS THAT YOU CAN EXPECT BY ENTERING INTO THIS AGREEMENT. DR FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE ACTS AND OMISSIONS OF ANY AND ALL THIRD PARTIES RELATED TO OR IN CONNECTION WITH THE PROVISION OF THE VENDOR PORTAL, BLACKBERRY APP WORLD OR DR COMMERCE SOLUTION OR THE PURCHASE OF COPIES OF YOUR APPLICATIONS, INCLUDING WITHOUT LIMITATION THE PROVISION OF THE VENDOR PORTAL AND BLACKBERRY APP WORLD AND SERVICES PROVIDED TO DR BY RIM, AND THE USE, SALE OR REDISTRIBUTION OF AN APPLICATION BY AN END USER (WHETHER OR NOT PERMITTED BY ANY APPLICABLE EULA). EXCEPT FOR ANY OBLIGATIONS DR HAS UNDER SECTION 5(C)(1) OR ITS OBLIGATIONS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1) YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY DR, OR FOR YOUR DISSATISFACTION WITH THE VENDOR PORTAL, BLACKBERRY APP WORLD OR DR COMMERCE SOLUTION OR THE SALE OF COPIES OF YOUR APPLICATIONS PURSUANT TO THIS AGREEMENT, IS FOR YOU TO TERMINATE THIS AGREEMENT. B. Indemnity. You agree to defend, indemnify, and hold harmless DR and its service providers, their successors and assigns, and their respective officers, directors, employees, representatives, from and against any and all demands, judgments, losses, costs, expenses, obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys' fees and costs (collectively, "Losses") in connection with a claim, action, suit or proceeding made, brought or commenced by a third party other than an affiliate of the indemnified Party (each, a "Claim"), that any such party may incur or suffer, which arise, result from, or relate to: (i) Your breach of any of Your obligations, representations, warranties or covenants made by You hereunder, (ii) the actual or alleged infringement by Your Applications or copies thereof, or other materials provided by You of any third party proprietary or intellectual property rights, or (iii) any liability arising from an End User's use of Your Applications. The indemnified party will promptly notify You in writing of any Claim and will provide You all disclosable information in its possession (at the indemnified party's expense) and reasonable assistance (at Your sole expense) as reasonably necessary to evaluate and defend such Claim, and the authority to settle and/or defend such Claim only in accordance with the following sentence. You shall obtain each indemnified party's express prior written approval (such approval not to be unreasonably withheld or delayed) to settle any Claim if such settlement (a) arises from or is part of any criminal action, suit or proceeding, or (b) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of that indemnified party, or (c) requires any specific performance or non pecuniary remedy by that indemnified party, or (d) requires the actual payment of any amount by that indemnified party. This indemnity shall survive termination of this Agreement.
C. Limitation of Liability. EXCEPT FOR LIABILITY RESULTING FROM DR'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING A WILLFUL BREACH OF SECTION 5(C)(1)), DR SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY LOST PROFITS, DATA, GOODWILL, LOSS OR INTERRUPTION OF BUSINESS, DELAY OF DELIVERY, OR FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. EXCEPT FOR ANY OBLIGATIONS DR HAS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1)) OR FOR DR'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING A WILLFUL BREACH OF SECTION 5(C)(1)), IF, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DR, OR ITS SERVICE PROVIDERS, IS HELD LIABLE TO YOU FOR ANY DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THIS AGREEMENT, THE SALE OF COPIES OF YOUR APPLICATIONS THROUGH THE DR COMMERCE SOLUTION, OR OTHERWISE FROM OUR RELATIONSHIP, DR'S AGGREGATE AND ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO AND SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). D. Other. THE LIMITATIONS UPON DAMAGES AND CLAIMS, AND DISCLAIMER OF WARRANTIES, SET FORTH IN THIS AGREEMENT FORM A FUNDAMENTAL AND ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM, AND ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT IN THIS SECTION 6, IN NO EVENT SHALL RIM OR ANY AIRTIME SERVICE PROVIDER HAVE ANY LIABILITY ARISING FROM, RELATING TO, OR RESULTING FROM THIS AGREEMENT. 7. TERM AND TERMINATION A. Term. This Agreement starts on the date DR acknowledges its acceptance of this Agreement as set forth herein, and will last until either You or DR terminates this Agreement as set forth herein. You may terminate this Agreement with or without cause by providing DR with no less than thirty (30) calendar days prior notice in writing of Your decision to terminate. In the event You are in material breach of this Agreement or have failed to perform any of Your material obligations under this Agreement, and have not cured such breach or failure within fourteen (14) calendar days of being notified by DR of such breach or failure, DR may terminate this Agreement on notice to You without further opportunity to cure. Further, DR may,
at any time, terminate this Agreement by delivering to You notice of its decision to do so, if: (a) DR ceases to operate the DR Commerce Solution in connection with the Blackberry App World; (b) DR is required to do so by law; (c) You, or if You have licensed the distribution rights for the Applications, the licensor(s) for those Applications, has entered into a software development agreement: (i) with RIM that is no longer in good standing, that provides for the use of RIM's BlackBerry Java Development Environment (JDE), BlackBerry Java SDK (formerly BlackBerry Java Development Environment (JDE) Component Package), BlackBerry Java Plug-‐in (formerly BlackBerry Java Development Environment (JDE) Plug-‐in for Eclipse), BlackBerry WebWorks Plug-‐ins (formerly BlackBerry Plug-‐in for Microsoft Visual Studio and BlackBerry Web Development Plug-‐in for Eclipse), BlackBerry WebWorks Packager, BlackBerry WebWorks SDK, BlackBerry Theme Studio, BlackBerry Tablet OS SDK for Adobe AIR, and/or BlackBerry Tablet OS Native SDK and (ii) if applicable, in the case of themes, with Plazmic Inc. (Plazmic) that is no longer in good standing that provides for the use of Plazmic's Content Developer's Kit (CDK); or (d) You are not in good standing with DR or RIM (other than due to a breach of this Agreement in which case the cure period set forth above shall apply). B. Termination. Upon termination of this Agreement: (a) You will immediately cease any use of DR's name, logos or Trademarks, and remove any approved hyperlinks to the DR Commerce Solution that deal with the sale of copies of Your Application; (b) DR will promptly halt any sale of copies of Your Application(s) through the DR Commerce Solution; (c) DR will continue to make payments to You of amounts due to You under this Agreement, on the regular pay cycle dates, until the time that Your account has reached a zero balance (DR's hold back rights as described in Section 4(E)(1) above, and Your obligation to pay DR for any shortfall in Your account, shall survive the termination of the Agreement); and (d) You will continue to be responsible for any liability that might arise out of Chargebacks, any infringement of intellectual property rights, any violation of laws, rules or regulations that may have occurred as a result of copies of Your Applications being made available via the DR Commerce Solution, and any breach by You of the terms of this Agreement. C. Survival. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement, which provisions shall include without limitation sections 1, 2, 3(A), 3(D), 3(E), 3(F), 3(G), 4, 5, 6, 7(B), 7(C), and 8. 8. MISCELLANEOUS A. Entire Agreement; Assignment. This Agreement and the BlackBerry App World Guidelines sets forth the entire understanding between You and DR with respect to its subject matter, and supersedes any and all prior or contemporaneous proposals, communications, agreements, understandings, negotiations, and representations, whether written or oral, related thereto. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties and their permitted successors and assigns. However, You may not assign this Agreement, or any of Your rights or obligations under this Agreement (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without DR's express prior written permission to do so, and any attempt to assign in violation of the preceding shall be null and void and such attempt shall constitute an incurable material breach of this Agreement. B. Changes to this Agreement. As this agreement has no specified term, and business circumstances and legal requirements may change from time to time, DR reserves the right to revise the terms of this Agreement. In the event of any such revisions that are material in nature, DR will provide You with notice of such revised version in accordance with section 8(F), otherwise DR may provide notice by posting the revised version of the Agreement on the Vendor Portal. Any revisions to the Agreement which are required in order to comply with legal requirements, or changes in legal requirements, will immediately become effective as of the date DR provides notice to You. All other revisions to the Agreement will become effective thirty (30) calendar days after DR provides notice to You of such revisions. Except as set forth above, no conditions other than those set forth in this Agreement, or amendments or modifications to this Agreement, shall be binding on DR unless DR expressly agrees to such amendments or modifications in a writing signed by an authorized representative of DR. C. Relationship of the Parties. You and DR are independent contractors of, and not an employee, agent or authorized representative of, the other. No agency, partnership, joint venture, employer-‐employee relationship, or other business combination between You and DR is intended or created by this Agreement. Neither party shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other. Without limiting the foregoing, neither party shall make any representations or warranties to third parties on behalf of the other party. RIM and its affiliates shall be considered third party beneficiaries of sections 3(A), 3(C), 3(D), and 6 of this Agreement and shall be entitled to enforce these sections with respect to RIM and its affiliates only. There are no other third-‐party beneficiaries under this Agreement. D. Governing Law; Venue. This Agreement shall be governed by and interpreted under the laws of the State of New York, United States of America, without respect to or application of its conflicts-‐of-‐laws provisions. The parties specifically disclaim application of : (i) the United Nations Convention on the International Sale of Goods; and (ii) of Article 2 of the Uniform Commercial Code as codified. If there are any disputes or conflicts related to or arising out of this Agreement, You and DR shall use reasonable means to resolve the conflict prior to starting any lawsuits or other litigation, including negotiation between management personnel capable of resolving the conflicts. However, in the event either You or DR should start any litigation arising out of this Agreement, You expressly agree that the litigation will take place exclusively in the state or federal courts located in Hennepin County,
Minnesota, United States of America, and You expressly agree that any such court has personal jurisdiction over You. You waive all defenses of lack of personal jurisdiction and forum non-‐conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. E. Waiver; Severability. No waiver of any provision or breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by DR to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. The invalidity of non-‐enforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-‐enforceable provisions were omitted, and the invalid or non-‐enforceable provision of this Agreement shall automatically be construed as replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-‐enforceable provision. F. Notices. If You are obligated under this Agreement to tell DR something or You wish to give DR legal notice of any kind, You must do so in writing and deliver it by certified mail, postage pre-‐paid and return receipt requested or by nationally recognized overnight courier which provides a written proof of delivery, to the following address: Digital River, Inc., Attn: General Counsel, 9625 West 76th Street, Eden Prairie, MN 55344. Such notice shall be effective upon DR's receipt of same. If DR is obligated under this Agreement to tell You something or DR wishes to give You legal notice of any kind, DR may do so by use of any of the addresses You provide through the Vendor Portal, including postal mail or e-‐mail, and such notice shall be deemed to be sufficiently delivered to You. If any such notice fails to reach You because You gave DR inaccurate address information, DR's notice shall nonetheless be deemed to have been validly delivered to You on the date such notice was sent by DR. G. Agreement in English. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Les parties ont exig� que cet accord et tous les documents connexes soient r�dig�s en anglais. The original and controlling version of this agreement shall be the version using the English language. All translations of this agreement into other languages shall be for the convenience of the parties only, and shall not control the meaning or application of this agreement. All notices and other communications required or permitted by this agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely on the English language version thereof. La version originale et contr�lant de cette accord et la version Anglaise. Toutes les traductions de cette accord dans une autre langue est uniquement pour le b�n�fice des parties et ne sera pas contr�lant du sens de accord. Touts les avis et communications requis ou permis part cette accord doivent
�tre dans la langue Anglaise et touts les interpr�tations et les applications de ces communications sera dans la langue Anglaise. H. Other. DR shall not be liable for any inability to perform its obligations under this Agreement if it is unable to do so as a result of any reasons or conditions beyond DR's reasonable control. No provisions in any of Your purchase orders or other business forms (including by way of example but not limitation, any statement of work or invoice) shall modify, supersede or otherwise alter the terms of this Agreement. DR may engage the services of subcontractors or agents to assist DR in the performance of its obligations, and DR will be responsible for the acts and omissions of such subcontractors and agents. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of this Agreement or otherwise. Headings are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. v10.02 (1129) This Addendum may only be entered into by you if you are over the age of majority under the laws of your jurisdiction. Otherwise, you are expressly prohibited from entering into this Addendum, and should have your parent or guardian enter into this Addendum on your behalf. By electronically accepting this Addendum, you represent and warrant to us that you are over the age of majority under the laws of your jurisdiction. IN-‐APP PRODUCT ADDENDUM TO VENDOR AGREEMENT PLEASE READ THIS ENTIRE ADDENDUM (THE "ADDENDUM") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE VENDOR PORTAL ("You") ON THE ONE HAND, AND DIGITAL RIVER, INC. ("DR-‐Inc") AND DIGITAL RIVER IRELAND LIMITED ("DR-‐Ireland") ON THE OTHER (DR-‐INC AND DR-‐IRELAND EITHER INDIVIDUALLY OR COLLECTIVELY AS SET FORTH IN THIS AGREEMENT, "DR"). Please print a copy of this Addendum for Your records. This Addendum sets out the terms and conditions under which You will fulfill to End Users certain of Your Applications ("In-‐App Products"), the sale of copies of which are initiated through copies ofapplications made available through BlackBerry App World by DR utilizing an in-‐application purchase process via the DR Commerce Solution (an "App-‐Initiated Purchase"). References in the Agreement and this Addendum to the DR Commerce Solution shall be construed as the functionality through which DR sells both Applications through BlackBerry App World and In-‐App Products through App-‐Initiated Purchases. Before You can offer In-‐App Products to End Users through App-‐Initiated Purchases, You must first agree to the
terms and conditions of this Addendum. This Addendum forms a part of, and is incorporated by reference into, the Vendor Agreement electronically accepted by You (the "Agreement"). Your acceptance of this Addendum constitutes an offer to DR. BY ACCEPTING THIS ADDENDUM BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND TO THIS ADDENDUM THE PERSON, ORGANIZATION OR ENTITY LISTED ON THE VENDOR PORTAL. The provision to You of the ability to offer App-‐Initiated Purchases shall constitute DR's acceptance of this Addendum whereupon this Addendum shall form a binding agreement between the parties, and a part of the Agreement. Any capitalized terms that are not defined in this Addendum shall have the meaning set out in the Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You and DR agree as follows: 1. Submitting In-‐App Products; Approval Process. Notwithstanding Section 3(A) of the Agreement, when You submit an application through the Vendor Portal for acceptance, You must also provide a description of the In-‐App Products that You wish to make available to End Users through that application through App-‐Initiated Purchases. You must provide all information about these potential In-‐App Products reasonably requested by DR or on DR's behalf by RIM, through the Vendor Portal or otherwise (including by way of example and not limitation, the name of the In-‐App Product and the Suggested Retail Price for the In-‐App Product) and upon request a sample or samples of the In-‐App Products. Your submission of the foregoing through the Vendor Portal constitutes Your request for DR to sell copies of such In-‐App Product through the DR Commerce Solution. The provision of notice to You that Your In-‐App Product has been approved for resale through the DR Commerce Solution shall constitute approval of Your request for DR to sell copies of such In-‐App Products. 2. Fulfillment by You of App-‐Initiated Purchases. . Notwithstanding Sections 3(C) and 3(I) of the Agreement, You agree and acknowledge that You, and not DR or RIM, will be solely responsible for the fulfillment of In-‐App Products. Notwithstanding Sections 3(C) and 3(I) of the Agreement, You shall, on DR's behalf as DR's fulfillment agent, fulfill each purchased In-‐App Product to the End User purchaser via digital download or otherwise make the In-‐App Product available to the End User's BlackBerry� device or through other means identified as satisfactory by DR or RIM, and DR's payment to You of the DR Purchase Price for that In-‐App Product shall be the consideration paid to You for Your performance of Your fulfillment obligations in connection with that In-‐App Product. You shall, to the extent required to satisfy Your fulfillment obligations, at Your sole cost and expense, securely maintain, or have maintained, on Your servers master download copies of the In-‐App Products to be fulfilled by You, and You will be responsible for any server or bandwidth costs incurred by You in connection with Your fulfillment of In-‐App Products. Upon receipt from DR (either directly or through RIM) of notice of completion of an App-‐
Initiated Purchase, You shall fulfill to the End User (via a digital download provided to the End User or through other means identified as satisfactory by DR or RIM) the In-‐App Product purchased in such App-‐Initiated Purchase at the earlier of such time as the End User activates such digital download or requests the In-‐App Product through other means identified as satisfactory by DR or RIM. 3. BlackBerry In-‐App Product Guidelines. Notwithstanding Section 2(A)(1) of the Agreement, Your In-‐App Products must meet the minimum requirements set out in the BlackBerry In-‐App Product Guidelines (a copy of which is available in the Vendor Portal), as amended from time to time. Without limiting the foregoing, executable file formats are not eligible to be In-‐App Products, and must be submitted for sale through BlackBerry App World. However, You may enable (i.e. unlock) functionality that already exists within an application through an In-‐App Product (e.g. unlock a level within a game). If any of Your In-‐App Products do not meet the BlackBerry In-‐App Product Guidelines at any time, DR may elect not to offer copies of those In-‐App Products, or cease sales of copies of those In-‐App Products. Notwithstanding Section 3(A)(1) of the Agreement, DR and RIM shall have the right to review and test In-‐App Products to ensure conformance with the BlackBerry In-‐App Product Guidelines before offering Your In-‐App Products for sale, but shall have no obligation to do so. Agreement in English. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Les parties ont exig� que cet accord et tous les documents connexes soient r�dig�s en anglais. The original and controlling version of this agreement shall be the version using the English language. All translations of this agreement into other languages shall be for the convenience of the parties only, and shall not control the meaning or application of this agreement. All notices and other communications required or permitted by this agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely on the English language version thereof. La version originale et contr�lant de cette accord et la version Anglaise. Toutes les traductions de cette accord dans une autre langue est uniquement pour le b�n�fice des parties et ne sera pas contr�lant du sens de accord. Touts les avis et communications requis ou permis part cette accord doivent �tre dans la langue Anglaise et touts les interpr�tations et les applications de ces communications sera dans la langue Anglaise. Other Terms. Notwithstanding that this Addendum has been prepared by DR, You and DR confirm that this Addendum constitutes the understanding of the parties and is intended to be construed in a manner that is consistent with the subject matter and activities contemplated by this Addendum, and the terms and conditions of the Agreement. This Addendum is made a part of the Agreement. Other than as set forth in this Addendum, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. v10.01 (1012)
Bango (pulled 5/11/11) This Agreement may only be entered into by you if you are over the age of majority under the laws of your jurisdiction. Otherwise, you are expressly prohibited from entering into this Agreement, and should have your parent or guardian enter into this Agreement on your behalf. By electronically accepting this Agreement, you represent and warrant to us that you are over the age of majority under the laws of your jurisdiction. VENDOR AGREEMENT PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE VENDOR PORTAL ("You") ON THE ONE HAND, AND Bango.net Limited ON THE OTHER (EITHER INDIVIDUALLY OR COLLECTIVELY AS SET FORTH IN THIS AGREEMENT, "BANGO"). Please print a copy of this Agreement for Your records. This Agreement sets out the terms and conditions under which BANGO is prepared to make Your Applications available to End Users through the BANGO Commerce Solution on the BlackBerry App World. Before BANGO will offer copies of Your Applications for sale to End Users through the BANGO Commerce Solution, You must first agree to the terms and conditions of this Vendor Agreement (the "Agreement"). Your acceptance of this Agreement constitutes an offer to BANGO. BY ACCEPTING THIS AGREEMENT BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND TO THIS AGREEMENT THE PERSON, ORGANIZATION OR ENTITY LISTED ON THE VENDOR PORTAL. The provision of notice to You that any of Your Applications have been approved for resale through the BANGO Commerce Solution portion of the BlackBerry App World shall constitute BANGO's acceptance of this Agreement whereupon this Agreement shall form a binding agreement between the parties. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You and BANGO agree as follows: 1. DEFINITIONS The following capitalized terms in this Agreement are defined below. Other terms defined in the body of this Agreement will have the meanings given where they are defined. A. "Application" means software programs (or other downloadable content, identified in the Vendor Portal as types of products which are eligible for sale through the BANGO Commerce Solution) submitted by You, and in relation to the use of which End Users are required to pay fees.
B. "Authorized Network" means a wireless network which is owned or operated by a carrier (or carriers with whom that carrier has roaming agreements in place) that You indicate through the Vendor Portal You are legally permitted, and wish, to have an Application made available for use on wireless handhelds activated thereon. C. "BlackBerry App World" means the RIM owned and constructed portal that supports, among other things, the purchase of Applications through the BANGO Commerce Solution, which will be accessible by means that include without limitation RIM proprietary handheld software operating on wireless handheld devices. D. "BANGO Commerce Solution" means the BANGO provided functionality through which BANGO sells Applications to End Users through the BlackBerry App World. E. "BANGO Purchase Price" means the purchase price, due to You from BANGO, for each copy of an Application purchased from You by BANGO for BANGO�s resale through the BANGO Commerce Solution, which shall be calculated as Seventy Percent (70%) of the Suggested Retail Price (less any Taxes, such as sales taxes, included in the Suggested Retail Price) for each copy of each Application, and at BANGO's sole option net of any currency exchange and cross border transaction fees. F. "End User" means a person, organization or entity which purchases or wishes to purchase a copy of Your Application through the BANGO Commerce Solution which is intended for its own use and not for resale. G. "End User Data" means personally identifiable information about an End User (or information that can be used, together with other information or data, to personally identify an End User) provided in connection with a Transaction through the BANGO Commerce Solution, which may be collected, used or disclosed (in whole or in part) by or on behalf of BANGO. H. "EULA" means an end user license agreement between You and an End User for a copy of an Application purchased through the BANGO Commerce Solution, which an End User is required to enter into as a condition of the End User's use of an Application. I. "RIM" means Research In Motion Limited and its affiliates, and their respective successors and assigns. J. "Service Providers" means third parties, such as mobile network operators (wireless carriers) and RIM, who provide additional capabilities to BANGO to enable the sale of Applications through the Bango Commerce Solution.
K. "Suggested Retail Price" means the price that You provide through the Vendor Portal as the recommended selling price of a copy of an Application, as may be changed from time to time by You through the Vendor Portal. L. "Taxes" means any taxes payable by an End User with respect to a Transaction (it does not include any applicable taxes due to You from BANGO on Your sale of a copy of an Application to BANGO for resale, which are addressed in Section 4(B) of this Agreement). M. "Transaction" means the sale of a copy of an Application through the BANGO Commerce Solution to an End User through a single order. N. "Vendor Portal" means the online interface provided by RIM through which You apply to have copies of Applications sold by BANGO through the BANGO Commerce Solution, and through which you will accept this Agreement and provide certain required information regarding the Applications which you desire for BANGO to sell through the BANGO Commerce Solution. 2. VENDOR PARTICIPATION REQUIREMENTS A. BANGO will not make available copies of Applications through the BANGO Commerce Solution if You and Your Applications do not meet and follow the following terms and conditions: (1) Your Application must meet the minimum requirements set out in the BlackBerry App World Guidelines, as amended from time to time, which may include by way of example and not limitation requirements and restrictions on compatibility with RIM BlackBerry(r) wireless handheld devices and software, performance requirements, operational requirements, and content or use requirements (the "BlackBerry App World Guidelines"). If any of Your Applications do not meet the BlackBerry App World Guidelines, BANGO may, at its sole discretion, elect not to offer copies of that Application, or cease sales of copies that Application, through the BANGO Commerce Solution. (2) The information You provide to BANGO through the Vendor Portal in connection with You and Your Applications shall be accurate and truthful, and You shall immediately update such information through the Vendor Portal in the event any such information changes. (3) End Users must place orders themselves through the BANGO Commerce Solution. You are not permitted to place orders on behalf of End Users, nor to authorize anyone to place orders on an End User's behalf. (4) You will provide BANGO with all necessary product information through the Vendor Portal so that End Users do not need to contact You for additional information prior to a sale by BANGO of a copy of an Application.
(5) You shall provide a Suggested Retail Price through the Vendor Portal for copies of each of the Applications which You wish to make available through the BANGO Commerce Solution. The Suggested Retail Price may only be provided to BANGO in up to the number of currencies and only in the currencies and in the manner indicated in the Vendor Portal from time to time. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement or in the Vendor Portal, while You may provide Suggested Retail Prices for copies of Your Applications, BANGO is solely responsible for setting the price at which copies of Your Application will be sold by BANGO through the BANGO Commerce Solution, which may reflect Your Suggested Retail Price at BANGO's sole discretion. (6) You will not submit through the Vendor Portal any products other than Applications (such as but not limited to products which are fulfilled physically), unless otherwise agreed to in writing by You and BANGO. If BANGO determines at any time that You or any of Your Applications do not meet or follow any or all of the provisions of this Agreement, or of any agreement between You and RIM relating to BlackBerry App World, or that You are otherwise in breach of any provision of this Agreement, BANGO may immediately suspend selling copies of Your Applications until such noncompliance and/or breach is remedied, and/or terminate this Agreement for uncured breach in accordance with the terms of Section 7(A) of this Agreement. 3. GENERAL TERMS OF THIS AGREEMENT A. Submitting Applications; Approval Process. You will submit to BANGO, through the Vendor Portal, each Application You would like BANGO to make available through the BANGO Commerce Solution, together with such information as is requested by BANGO, or on BANGO�s behalf by RIM, by means of the Vendor Portal or otherwise, in connection with such Application (including by way of example and not limitation, the Authorized Network(s), the name of the Application, a description of the Application, compatibility and resource requirements for the Application, a copy of the executable Application for testing, and the Suggested Retail Price of the Application). Your submission of an Application through the Vendor Portal constitutes Your request for BANGO to sell copies of such Application through the BANGO Commerce Solution. BANGO and RIM shall have the right to review and test such Application to ensure conformance with the Blackberry App World Guidelines before offering Your Application for sale through the BANGO Commerce Solution, but shall have no obligation to do so. You understand and acknowledge that in order for Your Applications to be made available for sale through the BANGO Commerce Solution through the Blackberry App World, in addition to this Agreement You must enter into an agreement with BANGO's Service Provider RIM for, among other purposes, the purposes of evaluating and testing Your Applications. The provision of notice to You that Your Application has been approved for resale through the BANGO Commerce Solution shall constitute approval of Your request for BANGO to sell copies of such Applications. BANGO
and/or RIM, on BANGO's behalf, shall notify you if a submitted Application does not meet the BlackBerry App World Guidelines, or if BANGO has elected not to make available any of Your Applications through the BANGO Commerce Solution or to not make them available in specific jurisdictions. Notwithstanding the foregoing, You acknowledge that BANGO may, in BANGO's sole discretion with or without advance notice, decline to sell any one or more of Your Applications, at any time, at all, or in specific jurisdictions, and nothing in this Agreement shall constitute BANGO's commitment or obligation to sell copies of Your Applications. You further acknowledge and agree that BANGO may, at any time, in BANGO's sole discretion and for any reason whatsoever, remove, or have removed, an Application from an End User�s wireless handheld device and/or remove such Application from the End User�s My World repository. B. You acknowledge and agree that BANGO may sell copies of applications and/or other downloadable content provided by others that may be similar to or competitive with Your Applications, and that nothing in this Agreement shall be construed as granting You any exclusivity within the Blackberry App World with respect to any of Your Applications and/or other downloadable content resold by BANGO. C. Legal Relationship; Sales of Copies of Your Applications. As an owner, licensor and/or distributor of Applications, You will provide to BANGO, through the Vendor Portal, a master copy of Your Application to be made available to End Users through the Commerce Solution. You hereby grant: (a) to BANGO and RIM, the right to make copies of Your Applications for its own internal use and testing purposes, for the purposes of evaluating and ensuring Your Applications comply with the BlackBerry App World Guidelines, and for the purposes of RIM's provision of fulfillment and ancillary services as BANGO's fulfillment agent; and (b) to BANGO, the right (which right with respect to fulfillment may be sublicensed by BANGO to RIM or to another third party fulfillment Service Provider, at BANGO's option) to make a copy of that Application when an order for an Application is placed through the BANGO Commerce Solution by an End User, which copy BANGO shall purchase from You and resell to that End User along with the right to use the Application (which right to use is subject to the terms and conditions set out in Your EULA), and BANGO shall purchase such copy from You for the BANGO Purchase Price on the terms set forth in this Agreement. You grant to BANGO a worldwide right to use the materials and information You provide in connection with each such Application to facilitate BANGO's sale of copies of each such Application through the BANGO Commerce Solution and the provision of related services by RIM. You further agree to comply with the terms of all agreements entered into between You and RIM. BANGO and/or RIM shall have full control over the design, operation, features and functionality (including available End User payment methods) and End User terms and policies applicable to the Blackberry App World and BANGO Commerce Solution. Title to a copy of an Application sold through the BANGO Commerce Solution to an End User shall pass from BANGO to that End User upon the completion of both: (a) BANGO's
receipt of payment for that Application; (b) the provision to the End User of access to download the Application. D. Your EULA. You shall include the EULA under which You wish to license Your Applications within Your Application for the particular jurisdictions in which the Application is to be made available. This EULA shall at minimum, include provisions excluding BANGO and RIM (not necessarily by name, but at least by role, e.g. channel partners and associated Service Providers) from any liability whatsoever in relation to Your Application, including without limitation in relation to the sale or use of copies thereof, or the performance or non-‐performance of Your Applications, shall make BANGO and RIM third party beneficiaries to the EULA with respect to these provision(s), and shall include an email address (and may include a phone number) through which End Users can obtain support from You as required by Section 3.F below. Further, the EULA shall also indicate any jurisdictions in which End Users may not use an Application, and shall identify any export restrictions. BANGO shall not remove, or have removed, any EULA from any Application or copy thereof, and shall state in its terms of sale to the End User, that their right to use the copy of the Application sold to them is subject to the terms and conditions set out in the EULA in Your Application. You agree and acknowledge that any EULA You enter into with an End User is an agreement between You and the End User, and BANGO shall not be a party to that EULA, unless BANGO is in the role of an End User of Your Applications. Notwithstanding any provision in Your EULA, You acknowledge and agree that BANGO may make it a term of sale to an End User who obtains a copy of Your Application through the BANGO Commerce Solution that the Application be downloaded, installed and/or used only on a RIM proprietary handheld software platform on a wireless handheld device. You shall not include any provision in Your EULA that imposes any obligations on BANGO or its Service Providers. E. End User Data. Because BANGO is the reseller to End Users of copies of Your Applications, BANGO is the party with whom the End User is transacting business for each Transaction. As such, the End User is giving his/her/its End User Data to BANGO. You agree that End User Data obtained in connection with a Transaction shall not be owned by You, and You shall not have any rights to such End User Data. If BANGO or its Service Providers provide You with or make accessible to You any End User Data, You shall only use such End User Data for the purpose for which it was provided to You under this Agreement. With respect to any End User Data provided to You or made accessible to You by BANGO or its Service Providers, You agree that You: (a) shall comply with all applicable privacy legislation and, without limiting the generality of the foregoing, handle such End User Data in full compliance with Your privacy policy; (b) shall use best efforts to ensure the confidentiality of such End User Data via encryption or similar means; and (c) shall not use such End User Data to offer any of Your products or services to such End Users or any other party in violation of the CAN-‐SPAM Act of 2003 (Controlling the Assault of Non-‐Solicited Pornography and Marketing Act) or other applicable laws, rules or regulations. If You provide End User Data to BANGO or its Service Providers, You represent and warrant that You will have obtained any necessary
consent from the End User to disclose the End User Data to BANGO and/or its Service Providers. Nothing in this Agreement shall restrict You from using for Your lawful business purposes (in compliance with Your privacy policy) any data provided to You directly by an End User in connection with that End User's registration or use of an Application, provided that in all events You comply with all applicable privacy legislation. F. Support. You are solely responsible for, and agree to provide, reasonable operational and technical support and assistance to End Users in connection with their installation/un-‐installation, use, and operation of Your Applications made available through the BANGO Commerce Solution along with a warranty for Your Application which is at a minimum consistent with the requirements of the laws in the jurisdiction of the End User. You must provide to BANGO, by means of the Vendor Portal, with, at a minimum, an email address for technical and operational support. Please note that neither BANGO nor RIM will provide software help-‐desk or other forms of technical support concerning Your Application. BANGO's support (which may be provided by RIM on BANGO's behalf) is limited to assistance to End Users with the use of the BANGO Commerce Solution. G. Export. As requested by BANGO, You agree to provide to BANGO, through the Vendor Portal or by email to [email protected] as requested by BANGO, with current, up-‐to-‐date and specific codes and classifications through the Vendor Portal or other related information, under any export control laws applicable to any Application that is made, or that You wish to have made, available through the BANGO Commerce Solution (including without limitation provision of appropriate Export Control Classification Numbers ("ECCNs") and license exception codes). The BANGO Commerce Solution is designed only to accept software that meets, among others, the following criteria: (1) generally available to the public by being sold, without restriction, from stock at retail selling points by electronic transactions; (2) designed for installation by the End User without further substantial support by the supplier; and if applicable (3) the cryptographic functionality cannot be easily changed by the End User. You agree You may not submit Applications that do not meet the above criteria. You are solely responsible for obtaining any government related export, import, use, supply and/or transfer permits (collectively, "Export Permits") required for any Applications and shall obtain all such Export Permits prior to submitting any such Applications to BANGO and/or its Service Providers. In no event shall BANGO and/or its Service Providers be required to obtain any Export Permit needed to receive or allow the download of any Application, unless otherwise agreed to in writing by BANGO. You agree that You will not submit Applications which require a US Government review prior to availability without also submitting at the same time a valid Commodity Classification Tracking System (CCATS) number. Federal agencies have also banned or regulated trade between U.S. entities and certain organizations, businesses and persons. BANGO (either directly or through RIM on BANGO's behalf) retains the right to make its own determination, at its sole
discretion, as to whether any proposed sales transaction might put BANGO and/or its Service Providers in violation of any applicable laws, rules and regulations which control, regulate, prohibit or otherwise affect the export, import or use of Your Application to or within the country to which the Application will be fulfilled, and may refuse to engage in any such Transactions without prior notice to You. H. BANGO's Trademarks; Publicity. BANGO's trademarks, service marks and business names (BANGO's "Trademarks") are owned or licensed solely and exclusively by BANGO and its licensors. You may not make any press release regarding this Agreement which includes BANGO's name, logo, or otherwise refers to BANGO, or use BANGO's name or logo to refer to BANGO, or use BANGO's Trademarks, without BANGO's express prior written consent to do so (for the avoidance of doubt, You may issue a press release indicating that Your Application is available through the Blackberry App World without BANGO's consent, provided such press release does not use BANGO's name, logo, or BANGO's Trademarks, or otherwise refer to BANGO). Any use by You of BANGO's Trademarks shall inure solely to BANGO's benefit. You agree, upon BANGO's demand, to promptly stop or alter any of Your uses of BANGO's Trademarks which BANGO deems to be improper or which may have the potential to put BANGO's Trademark rights at risk. I. Fulfillment. If necessary in order for BANGO to reproduce Your Application(s) and deliver same to End Users, You will cooperate with the reasonable requests of BANGO and RIM (who will be providing delivery and ancillary fulfillment services on behalf of BANGO) in relation to their fulfilling orders for copies of Your Application(s) to End Users. 4. PAYMENTS AND RETURNS A. Sale of Copies of Applications. For each copy of Your Application that BANGO sells to an End User, BANGO will purchase that copy from You for the BANGO Purchase Price. All amounts which BANGO owes You for the sale of copies of Your Applications shall be placed in a general in-‐house account maintained by BANGO (which for the avoidance of doubt shall not be an account specific to You), and BANGO will pay You from that account as described below. You will not be entitled to interest on amounts held in BANGO's general in-‐house account while such amounts are in BANGO's possession. B. Taxes. The BANGO Purchase Price paid to You for sales of copies of Your Applications shall be inclusive of any applicable taxes ("B2B Taxes"). If there are any B2B Taxes which You are required to collect from BANGO on Your sale of a copy of an Application to BANGO, You will be solely responsible for the payment of any and all such applicable B2B Taxes (or Your income derived therefrom) from the BANGO Purchase Price amounts paid to You by BANGO. You agree that You shall not have any right to separately invoice BANGO for B2B Taxes on Your sale of a copy of an Application to BANGO, except that where law requires a separate invoice of any B2B Taxes, you shall have the right to send any such invoices to BANGO, marked
"paid" as BANGO's payment of any amounts in such invoice(s) shall be considered already paid as part of the BANGO Purchase Price due to You from BANGO. In the event BANGO determines that withholding taxes are applicable to any payments due to You from BANGO, You agree and acknowledge that such payments by BANGO shall be net of any applicable withholding taxes. You shall provide to BANGO all data reasonably necessary for BANGO to support any B2B Taxes included in the purchase price of a copy of an Application. For the avoidance of doubt, under no circumstances shall BANGO be deemed to be providing tax advice or consulting services to You. You shall be solely responsible for, and shall hold BANGO harmless from and against, the calculation of B2B Taxes due from BANGO on Your sale of a copy of an Application to BANGO, and any failure to collect B2B Taxes from BANGO on Your sale of a copy of an Application to BANGO at the time of sale to BANGO (including without limitation interest and penalties that result from any failure). If You are registered for VAT in the United Kingdom, You will need to provide to BANGO or to RIM, at BANGO�s request, Your VAT number. If Your VAT status should change, or You sell all or part of your business, You should notify Bango in writing, immediately. C. Returns and Refunds. BANGO, as the seller and merchant of record for the BANGO Commerce Solution, is responsible for setting and applying the returns policy applicable to the BANGO Commerce Solution. If BANGO, at its option, provides a right of return for Applications made available through the BANGO Commerce Solution, and BANGO accepts the return of an Application in accordance with such right of return, You shall also accept the return of that particular copy of the Application, and shall refund the amount paid to You by BANGO in relation to that Application to BANGO, at BANGO's option, either by paying this sum to BANGO (either through Your PayPal account or as otherwise agreed by BANGO) or by way of BANGO setting off this amount against other monies otherwise owing to You. You further agree and acknowledge that BANGO will treat any non-‐fraudulent Chargeback or other non-‐fraudulent End User-‐, bank-‐ or payment processor-‐initiated reversal of a previously completed payment as a validly accepted return and a refund validly provided by BANGO. D. Chargebacks, Fraud and Suppressed Orders. A "Chargeback" is another form of refund that happens when a payment processor such as a mobile network operator (i.e. carrier),, a credit card processor, or acquiring bank unilaterally revokes a prior transaction, which may be done under the scheme rules of the mobile network operator, the credit card banking system for such reasons as fraud or suspected fraud, End User complaint, or other reasons determined at the sole discretion of the mobile network operator, the credit card processors and/or banks. BANGO makes no promises to You as to whether or how the mobile network operator, credit card processors and/or banks will interpret their rules or rights concerning Chargebacks. You acknowledge that mobile network operator and credit and debit card transactions through the BANGO Commerce Solution are 'non-‐swiped,' 'card-‐not-‐present' Transactions and have no physical signature from an End User, and thus
are subject to a higher level of Chargeback activity compared to physical credit card Transactions with wet-‐ink signatures. For each Chargeback or other payment reversal in relation to a copy of Your Applications sold through the BANGO Commerce Solution, You agree to allow BANGO to offset the amount of such Chargebacks and payment reversals against amounts due to You from BANGO, or invoice You for such amounts if BANGO is unable to offset such amounts. Further, any sale of a copy of an Application where the fulfillment of that copy of the Application has been made by or on behalf of BANGO upon receipt of a valid payment authorization but is subsequently rejected, cancelled or uncollectible from an end user (for example, due to the end user entering into a 'bad debt' situation) prior to settlement by BANGO, the merchant bank or payment processor, will not be treated as a completed sale to an End User by BANGO for the purposes of calculating payments due to You. This paragraph shall survive the termination or expiration of the Agreement. E. Payment Method and Frequency. Within sixty (60) calendar days of the end of each calendar month (except as otherwise stated below): (1) BANGO will make available to You a report in csv or similar format which shows each Transaction involving the sale of a copy of Your Application(s) for which BANGO processed payment during that calendar month and the calculation of the BANGO Purchase Price for the copy of the Application sold in each such Transaction, and the aggregate amount of BANGO Purchase Price amounts for that calendar month; and (2) BANGO will send to You a payment of accrued BANGO Purchase Price amounts on sales of copies of Your Applications, net of returns, chargebacks, applicable withholding taxes, and other amounts due to BANGO under this Agreement ("Due Amounts"). You acknowledge that BANGO may split payment of a Due Amount into multiple contemporaneous payments based on Your settlement agent�s (for example PayPal�s) requirements. In order to relieve You of any requirement to produce Your own invoice to receive payments from BANGO under this Agreement, and to provide a standardized, efficient and timely settlement process, You hereby acknowledge and agree to a self-‐billing invoice system under which BANGO shall raise invoices. The self-‐billing invoice is a standardized document that BANGO produces each month on Your behalf, which shall serve as the sole invoice document for settlement under this Agreement. You hereby acknowledge and agree that You shall not raise any invoices under or in relation to this Agreement. Payments shall be made to You via PayPal or other means as determined by BANGO. BANGO's payment obligations to You are subject to the following: (1) BANGO may determine to hold back all or a portion of Your Due Amounts if BANGO has a reasonable basis to believe that it will likely be necessary to cover future refunds, charges against Your account, or other liabilities You may owe to BANGO. BANGO may also hold back all or a portion of Your Due Amounts if BANGO believes that the funds represent fraudulent transactions or involve other kinds of illegal activities or represent erroneous transactions. BANGO will only hold back those amounts which BANGO determines are reasonable under the circumstances.
BANGO's statements or other communication from BANGO will note how much BANGO is holding back. BANGO will keep any held back amounts only for a reasonable time as determined in BANGO's sole discretion, and will promptly pay to You any remaining held back amounts after that reasonable time has passed. Regardless of any hold back BANGO may choose to keep, You agree to pay BANGO, upon demand, for any shortfall owed to BANGO due to refunds, Chargebacks, fraud, suppressed orders, or other fees for services rendered if they cannot be offset from Your account within ninety (90) calendar days of the date BANGO first seeks to offset such charges. If BANGO actually keeps (or sets off) any of the funds BANGO has held back against amounts due to You, BANGO will do so in a manner that BANGO believes fairly reflects Your liability owed to BANGO, and BANGO will note the set-‐off and provide You with an explanation of the set-‐off. BANGO shall be entitled to set off, against any holdback funds, any amount needed to reimburse BANGO for BANGO's costs or expenses of defending against any claims against BANGO related to Your breach of this Agreement, including an amount to pay any attorneys' fees BANGO incurs associated with any such claims. (2) Any and all amounts payable to You under this Agreement shall be paid to You in the currency or currencies indicated in the Vendor Portal from time to time (as of April 2010 the only payment currency available to You is United States Dollars (USD)), and shall be paid into Your PayPal account, or by such other BANGO authorized payment method as may be made available from time to time. (3) You may not request that BANGO make payments of Due Amounts to a third party on Your behalf. (4) If You do not object in writing to amounts retained by BANGO within thirty (30) calendar days of a given payment of a Due Amount from which such amounts are retained, or to an invoiced amount by the payment due date specified on the invoice, You shall be deemed to have acknowledged the correctness of that invoice or amount and to have waived its right to dispute that invoice or amount. Your dispute as to a portion of any invoice or amount owed shall give You the right to withhold or delay payment of only the disputed amount of such invoice or amount owed, and not the undisputed portion. (5) BANGO may withhold payment of the relevant part of a Due Amount until the payment is received from the payment processor. If Bango withholds any payment because of a delay in settlement from a payment processor, Bango will notify You if you are affected on or before the day that the payment to You is due to be made. (6) BANGO may withhold payments of Due Amounts if the amount due to You is less than $100 (US Dollars) in any settlement period, until the amount due exceeds this sum. 5. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Mutual. You and BANGO each make the following representations, warranties and covenants to the other: (1) Each party has full right, power and authority to enter into and fully perform its obligations under this Agreement, including without limitation the right to bind any party it purports to bind to this Agreement. (2) The execution, delivery and performance of this Agreement does not conflict with any other agreement to which it is a party or by which it is bound. B. By You. You make the following additional representations, warranties and covenants to BANGO: (1) You are the owner or fully authorized licensee of all intellectual property and other proprietary rights to Your Applications submitted through the Vendor Portal, and have all rights necessary to grant the rights granted to BANGO hereunder and to allow BANGO to sell copies of Your Application to End Users. BANGO's sale of copies of Your Applications to End Users on Authorized Networks will not violate any laws concerning export over national borders, including laws involving encryption technology. (2) To the best of Your knowledge, the offer to sell, sale, use, copy, import, storage and/or distribution of Your Applications or copies thereof, by BANGO, or by third parties on behalf of BANGO, as contemplated hereunder, will not infringe, violate, or misuse, or constitute a misappropriation of, any third party's intellectual property or other proprietary rights anywhere in the world. (3) The Applications You submit through the Vendor Portal, and any content and materials You provided in connection with these Applications, are not subject to licensing or usage fees to You which BANGO would be required to pay or any third party for which BANGO may be liable or responsible for payment. Any content and materials You provide through the Vendor Portal or otherwise in connection with Your Applications being made available through the BANGO Commerce Solution are accurate, and do not violate any applicable laws or regulations concerning advertising claims or other forms of consumer protection laws. (4) The Applications You submit through the Vendor Portal, including all content within and/or made available directly or indirectly by means of the Applications, is not libelous, does not slander others, does not contain obscene or pornographic material, is not illegal to use and does not otherwise violate the BlackBerry App World Guidelines in effect at the time of submitting each Application. Without limiting the foregoing, the Applications You submit through the Vendor Portal do not contain any viruses, Trojan horses, malware, spyware, adware or other disruptive software, or any software code which is designed to disrupt, damage, or perform unauthorized or illegal actions on a computer system, or which transmits information or other data from a user's computer without notice to and the express
prior consent of the End User. The Applications You submit through the Vendor Portal are not designed or usable as a tool for processing e-‐mail for mass mailing ("spamming" tools or the like). (5) With respect to any promotion by You of Your Applications that are made available through the BANGO Commerce Solution, You will not display any inaccurate or misleading information concerning Your identity or location, or inaccurate or misleading information concerning the role of BANGO as the seller and merchant of record to the End User for purchases of copies of Your Applications. (6) You will not engage in deceptive trade practices, or directly solicit End Users or potential End Users who have not affirmatively consented to receive direct solicitations from You, or otherwise violate any laws, rules or regulations applicable to the sale of copies of Your Application through the BANGO Commerce Solution to End Users on Authorized Networks and the conduct of Your business. (7) You will not use commercial e-‐mail (solicited or unsolicited) to market Your Application if that use of commercial e-‐mail violates any applicable laws or regulations regarding the use of commercial e-‐mail. You will comply with any legal obligations to provide proper labeling and content within Your marketing e-‐mails, and to provide opt-‐in or opt-‐out capabilities to recipients and comply with any such requests. Subject to any approvals required pursuant to Section 3(H) above, any advertising or other marketing materials that mention BANGO, the BlackBerry App World, or the BANGO Commerce Solution, or which contain hyperlinks to the BANGO Commerce Solution or BlackBerry App World, must be in compliance with all laws concerning advertising and marketing for the territories where You deliver those materials. You are responsible for compliance with all of the above, whether You provide the e-‐mails or advertisements on Your own or use the services of a third party. (8) You are the owner, licensor and/or distributor of the Applications with all rights necessary to allow BANGO to purchase copies of the Applications from You for resale. (9) The Applications are designed for operation and use on RIM proprietary software operating on wireless handheld devices. C. By BANGO. BANGO makes the following additional representations, warranties and covenants to You: (1) Except to the extent that this prohibition is precluded by law, BANGO shall not modify any Application without Your express written permission, and may not reverse engineer, disassemble or decompile any Application. 6. DISCLAIMER OF WARRANTIES; INDEMNITY; LIMITATION OF LIABILITY A. Disclaimer of Warranties. Except as expressly set out herein, BANGO provides BANGO's valued added reseller services to You on an "AS-‐IS, AS AVAILABLE" basis
and makes no promises as to the percentage up-‐time of the Vendor Portal, BlackBerry App World or BANGO Commerce Solution, or that the Vendor Portal, BlackBerry App World or BANGO Commerce Solution will operate completely without error. The Vendor Portal, BlackBerry App World and BANGO Commerce Solution are subject to change without notice. BANGO HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE QUALITY OR AVAILABILITY OF THE VENDOR PORTAL, BLACKBERRY APP WORLD OR BANGO COMMERCE SOLUTION AND ANY OTHER SERVICES PROVIDED BY BANGO PURSUANT OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-‐INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BANGO DISCLAIMS ANY WARRANTY OR LIABILITY RESULTING FROM OR REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE BANGO COMMERCE SOLUTION, BLACKBERRY APP WORLD, VENDOR PORTAL, AND/OR BANGO ADMINISTRATIVE INTERFACE OR ANY INFORMATION ACCESSIBLE THEREON, OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM YOUR USE OF, OR INCLUSION OF YOUR APPLICATIONS ON, THE SAME. BANGO DOES NOT REPRESENT THAT THE VENDOR PORTAL, BANGO COMMERCE SOLUTION, BLACKBERRY APP WORLD AND ADMINISTRATIVE INTEFACE ARE FREE OF VIRUSES OR MALICIOUS CONTENT DESPITE ANY EFFORTS BY BANGO AND ITS SERVICE PROVIDERS TO PREVENT THE INCLUSION OF SUCH CONTENT, AND YOU ACCEPT ALL RISK AND LIABILITY IN CONNECTION WITH YOUR USE OF THE VENDOR PORTAL AND ADMINISTRATIVE INTERFACE. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A GUARANTEE, REPRESENTATION OR WARRANTY AS TO THE LEVEL OF SALES OF COPIES OF YOUR APPLICATIONS THAT YOU CAN EXPECT BY ENTERING INTO THIS AGREEMENT. BANGO FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM THE ACTS AND OMISSIONS OF ANY AND ALL THIRD PARTIES RELATED TO OR IN CONNECTION WITH THE PROVISION OF THE VENDOR PORTAL, BLACKBERRY APP WORLD OR BANGO COMMERCE SOLUTION OR THE PURCHASE OF COPIES OF YOUR APPLICATIONS, INCLUDING WITHOUT LIMITATION THE PROVISION OF THE VENDOR PORTAL AND BLACKBERRY APP WORLD AND SERVICES PROVIDED TO BANGO BY RIM, AND THE USE, SALE OR REDISTRIBUTION OF AN APPLICATION BY AN END USER (WHETHER OR NOT PERMITTED BY ANY APPLICABLE EULA). EXCEPT FOR ANY OBLIGATIONS BANGO HAS UNDER SECTION 5(C)(1) OR ITS OBLIGATIONS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1) YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY BANGO, OR FOR YOUR DISSATISFACTION WITH THE VENDOR PORTAL, BLACKBERRY APP WORLD OR BANGO COMMERCE SOLUTION OR THE SALE OF COPIES OF YOUR APPLICATIONS PURSUANT TO THIS AGREEMENT, IS FOR YOU TO TERMINATE THIS AGREEMENT. B. Indemnity. You agree to defend, indemnify, and hold harmless BANGO and its Service Providers, their successors and assigns, and their respective officers,
directors, employees, representatives, from and against any and all demands, judgments, losses, costs, expenses, obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys' fees and costs (collectively, "Losses") in connection with a claim, action, suit or proceeding made, brought or commenced by a third party other than an affiliate of the indemnified Party (each, a "Claim"), that any such party may incur or suffer, which arise, result from, or relate to: (i) Your breach of any of Your obligations, representations, warranties or covenants made by You hereunder, (ii) the actual or alleged infringement by Your Applications or copies thereof, or other materials provided by You of any third party proprietary or intellectual property rights, or (iii) any liability arising from an End User's use of Your Applications. The indemnified party will promptly notify You in writing of any Claim and will provide You all disclosable information in its possession (at the indemnified party's expense) and reasonable assistance (at Your sole expense) as reasonably necessary to evaluate and defend such Claim, and the authority to settle and/or defend such Claim only in accordance with the following sentence. You shall obtain each indemnified party's express prior written approval (such approval not to be unreasonably withheld or delayed) to settle any Claim if such settlement (a) arises from or is part of any criminal action, suit or proceeding, or (b) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of that indemnified party, or (c) requires any specific performance or non pecuniary remedy by that indemnified party, or (d) requires the actual payment of any amount by that indemnified party. This indemnity shall survive termination of this Agreement. C. Limitation of Liability. EXCEPT FOR LIABILITY RESULTING FROM BANGO'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING A WILLFUL BREACH OF SECTION 5(C)(1)), BANGO SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ORGANIZATION FOR ANY LOST PROFITS, DATA, GOODWILL, LOSS OR INTERRUPTION OF BUSINESS, DELAY OF DELIVERY, OR FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. EXCEPT FOR ANY OBLIGATIONS BANGO HAS TO PAY YOU THE DUE AMOUNTS (SUBJECT TO THE HOLD BACK PROVISIONS OF SECTION 4(E)(1)) OR FOR BANGO'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING A WILLFUL BREACH OF SECTION 5(C)(1)), IF, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BANGO, OR ITS SERVICE PROVIDERS, IS HELD LIABLE TO YOU FOR ANY DAMAGES ARISING FROM, RELATING TO OR RESULTING FROM THIS AGREEMENT, THE SALE OF COPIES OF YOUR APPLICATIONS THROUGH THE BANGO COMMERCE SOLUTION, OR OTHERWISE FROM OUR RELATIONSHIP, BANGO'S AGGREGATE AND ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT
FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO AND SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). D. Other. THE LIMITATIONS UPON DAMAGES AND CLAIMS, AND DISCLAIMER OF WARRANTIES, SET FORTH IN THIS AGREEMENT FORM A FUNDAMENTAL AND ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM, AND ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT IN THIS SECTION 6, IN NO EVENT SHALL RIM OR ANY AIRTIME SERVICE PROVIDER HAVE ANY LIABILITY ARISING FROM, RELATING TO, OR RESULTING FROM THIS AGREEMENT. 7. TERM AND TERMINATION A. Term. This Agreement starts on the date BANGO acknowledges its acceptance of this Agreement as set forth herein, and will last until either You or BANGO terminates this Agreement as set forth herein. You may terminate this Agreement with or without cause by providing BANGO with no less than thirty (30) calendar days prior notice in writing of Your decision to terminate. In the event You are in material breach of this Agreement or have failed to perform any of Your material obligations under this Agreement, and have not cured such breach or failure within fourteen (14) calendar days of being notified by BANGO of such breach or failure, BANGO may terminate this Agreement on notice to You without further opportunity to cure. Further, BANGO may, at any time, terminate this Agreement by delivering to You notice of its decision to do so, if: (a) BANGO ceases to operate the BANGO Commerce Solution in connection with the Blackberry App World; (b) BANGO is required to do so by law; (c) You, or if You have licensed the distribution rights for the Applications, the licensor(s) for those Applications, has entered into a software development agreement: (i) with RIM that is no longer in good standing, that provides for the use of RIM's BlackBerry Java Development Environment (JDE), BlackBerry Java SDK (formerly BlackBerry Java Development Environment (JDE) Component Package), BlackBerry Java Plug-‐in (formerly BlackBerry Java Development Environment (JDE) Plug-‐in for Eclipse), BlackBerry WebWorks Plug-‐ins (formerly BlackBerry Plug-‐in for Microsoft Visual Studio and BlackBerry Web Development Plug-‐in for Eclipse), BlackBerry WebWorks Packager, BlackBerry WebWorks SDK, BlackBerry Theme Studio, BlackBerry Tablet OS SDK for Adobe AIR, and/or BlackBerry Tablet OS Native SDK and (ii) if applicable, in the case of themes, with Plazmic Inc. (Plazmic) that is no longer in good standing that provides for the use of Plazmic�s Content Developer�s Kit (CDK); or (d) You are not in good standing with BANGO or RIM (other than due to a breach of this Agreement in which case the cure period set forth above shall apply). B. Termination. Upon termination of this Agreement: (a) You will immediately cease any use of BANGO's name, logos or Trademarks, and remove any approved
hyperlinks to the BANGO Commerce Solution that deal with the sale of copies of Your Application; (b) BANGO will promptly halt any sale of copies of Your Application(s) through the BANGO Commerce Solution; (c) BANGO will continue to make payments to You of amounts due to You under this Agreement, on the regular pay cycle dates, until the time that Your account has reached a zero balance (BANGO's hold back rights as described in Section 4(E)(1) above, and Your obligation to pay BANGO for any shortfall in Your account, shall survive the termination of the Agreement); and (d) You will continue to be responsible for any liability that might arise out of Chargebacks, any infringement of intellectual property rights, any violation of laws, rules or regulations that may have occurred as a result of copies of Your Applications being made available via the BANGO Commerce Solution, and any breach by You of the terms of this Agreement. C. Survival. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement, which provisions shall include without limitation sections 1, 2, 3(A), 3(D), 3(E), 3(F), 3(G), 4, 5, 6, 7(B), 7(C), and 8. 8. MISCELLANEOUS A. Entire Agreement; Assignment. This Agreement and the BlackBerry App World Guidelines sets forth the entire understanding between You and BANGO with respect to its subject matter, and supersedes any and all prior or contemporaneous proposals, communications, agreements, understandings, negotiations, and representations, whether written or oral, related thereto. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. However, You may not assign this Agreement, or any of Your rights or obligations under this Agreement (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without BANGO's express prior written permission to do so, and any attempt to assign in violation of the preceding shall be null and void. B. Changes to this Agreement. As this agreement has no specified term, and business circumstances and legal requirements may change from time to time, BANGO reserves the right to revise the terms of this Agreement. In the event of any such revisions that are material in nature, BANGO will provide You with notice of such revised version in accordance with section 8. F., otherwise BANGO may provide notice by posting the revised version of the Agreement on the Vendor Portal. Any revisions to the Agreement which are required in order to comply with legal requirements, or changes in legal requirements, will immediately become effective as of the date BANGO provides notice to You. All other revisions to the Agreement will become effective thirty (30) calendar days after BANGO provides notice to You of such revisions. Except as set forth above, no conditions other than those set forth in this Agreement, or amendments or modifications to this Agreement, shall be
binding on BANGO unless BANGO expressly agrees to such amendments or modifications in a writing signed by an authorized representative of BANGO. C. Relationship of the Parties. You and BANGO are independent contractors of, and not an employee, agent or authorized representative of, the other. No agency, partnership, joint venture, employer-‐employee relationship, or other business combination between You and BANGO is intended or created by this Agreement. Neither party shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other. Without limiting the foregoing, neither party shall make any representations or warranties to third parties on behalf of the other party. RIM and its affiliates shall be considered third party beneficiaries of sections 3(A), 3(C), 3(D), and 6 of this Agreement and shall be entitled to enforce these sections with respect to RIM and its affiliates only. There are no other third-‐party beneficiaries under this Agreement. D. Governing Law; Venue. This Agreement shall be governed by and interpreted under the laws of the State of New York, United States of America, without respect to or application of its conflicts-‐of-‐laws provisions. The parties specifically disclaim application of: (i) the United Nations Convention on the International Sale of Goods; and (ii) of Article 2 of the Uniform Commercial Code as codified. If there are any disputes or conflicts related to or arising out of this Agreement, You and BANGO shall use reasonable means to resolve the conflict prior to starting any lawsuits or other litigation, including negotiation between management personnel capable of resolving the conflicts. However, in the event either You or BANGO should start any litigation arising out of this Agreement, You expressly agree that the litigation will take place exclusively in the state or federal courts located in New York City, United States of America, and You expressly agree that any such court has personal jurisdiction over You. You waive all defenses of lack of personal jurisdiction and forum non-‐conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. E. Waiver; Severability. No waiver of any provision or breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by BANGO to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. The invalidity of non-‐enforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or non-‐enforceable provisions were omitted, and the invalid or non-‐enforceable provision of this Agreement shall automatically be construed as replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-‐enforceable provision. F. Notices. If You are obligated under this Agreement to tell BANGO something or You wish to give BANGO legal notice of any kind, You must do so in writing and
deliver it by certified mail, postage pre-‐paid and return receipt requested or by nationally recognized overnight courier which provides a written proof of delivery, to the following address: Bango.net Ltd, 330 Madison, 6th Floor, New York, NY 10017, USA. . If BANGO is obligated under this Agreement to tell You something or BANGO wishes to give You legal notice of any kind, BANGO may do so by use of any of the addresses You provide through the Vendor Portal, including postal mail or e-‐mail, and such notice shall be deemed to be sufficiently delivered to You. If any such notice fails to reach You because You gave BANGO inaccurate address information, BANGO's notice shall nonetheless be deemed to have been validly delivered to You on the date such notice was sent by BANGO. G. Agreement in English. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Les parties ont exige que cet accord et tous les documents connexes soient rediges en anglais. The original and controlling version of this agreement shall be the version using the English language. All translations of this agreement into other languages shall be for the convenience of the parties only, and shall not control the meaning or application of this agreement. All notices and other communications required or permitted by this agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely on the English language version thereof. La version originale et controlant de cette accord et la version Anglaise. Toutes les traductions de cette accord dans une autre langue est uniquement pour le benefice des parties et ne sera pas controlant du sens de accord. Touts les avis et communications requis ou permis part cette accord doivent etre dans la langue Anglaise et touts les interpretations et les applications de ces communications sera dans la langue Anglaise. H. Other. BANGO shall not be liable for any inability to perform its obligations under this Agreement if it is unable to do so as a result of any reasons or conditions beyond BANGO's reasonable control. No provisions in any of Your purchase orders or other business forms (including by way of example but not limitation, any statement of work or invoice) shall modify, supersede or otherwise alter the terms of this Agreement. BANGO may engage the services of subcontractors or agents to assist BANGO in the performance of its obligations, and BANGO will be responsible for the acts and omissions of such subcontractors and agents. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of this Agreement or otherwise. Headings are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. Bango.net Ltd App World Application Vendor Agreement, 2010. This Addendum may only be entered into by you if you are over the age of majority under the laws of your jurisdiction. Otherwise, you are expressly prohibited from entering into this Addendum, and should have your parent or guardian enter into
this Addendum on your behalf. By electronically accepting this Addendum, you represent and warrant to us that you are over the age of majority under the laws of your jurisdiction. IN-‐APP PRODUCT ADDENDUM TO VENDOR AGREEMENT PLEASE READ THIS ENTIRE ADDENDUM (THE "ADDENDUM") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE VENDOR PORTAL ("You") ON THE ONE HAND, AND BANGO.NET LIMITED ("Bango") ON THE OTHER. Please print a copy of this Addendum for Your records. This Addendum sets out the terms and conditions under which You will fulfill to End Users certain of Your Applications ("In-‐App Products"), the sale of copies of which are initiated through copies ofapplications made available through BlackBerry App World by Bango utilizing an in-‐application purchase process via the Bango Commerce Solution (an "App-‐Initiated Purchase"). References in the Agreement and this Addendum to the Bango Commerce Solution shall be construed as the functionality through which Bango sells both Applications through BlackBerry App World and In-‐App Products through App-‐Initiated Purchases. Before You can offer In-‐App Products to End Users through App-‐Initiated Purchases, You must first agree to the terms and conditions of this Addendum. This Addendum forms a part of, and is incorporated by reference into, the Vendor Agreement electronically accepted by You (the "Agreement"). Your acceptance of this Addendum constitutes an offer to Bango. BY ACCEPTING THIS ADDENDUM BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND TO THIS ADDENDUM THE PERSON, ORGANIZATION OR ENTITY LISTED ON THE VENDOR PORTAL. The provision to You of the ability to offer App-‐Initiated Purchases shall constitute Bango�s acceptance of this Addendum whereupon this Addendum shall form a binding agreement between the parties, and a part of the Agreement. Any capitalized terms that are not defined in this Addendum shall have the meaning set out in the Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You and Bango agree as follows: 1. Submitting In-‐App Products; Approval Process. Notwithstanding Section 3(A) of the Agreement, when You submit an application through the Vendor Portal for acceptance, You must also provide a description of the In-‐App Products that You wish to make available to End Users through that application through App-‐Initiated Purchases. You must provide all information about these potential In-‐App Products reasonably requested by Bango or on Bango�s behalf by RIM, through the Vendor Portal or otherwise (including by way of example and not limitation, the name of the In-‐App Product and the Suggested Retail Price for the In-‐App Product) and upon
request a sample or samples of the In-‐App Products. Your submission of the foregoing through the Vendor Portal constitutes Your request for Bango to sell copies of such In-‐App Product through the Bango Commerce Solution. The provision of notice to You that Your In-‐App Product has been approved for resale through the Bango Commerce Solution shall constitute approval of Your request for Bango to sell copies of such In-‐App Products. 2. Fulfillment by You of App-‐Initiated Purchases. Notwithstanding Sections 3(C) and 3(I) of the Agreement, You agree and acknowledge that You, and not Bango or RIM, will be solely responsible for the fulfillment of In-‐App Products. Notwithstanding Sections 3(C) and 3(I) of the Agreement, You shall, on Bango�s behalf as Bango�s fulfillment agent, fulfill each purchased In-‐App Product to the End User purchaser via digital download or otherwise make the In-‐App Product available to the End User�s BlackBerry� device or through other means identified as satisfactory by Bango or RIM, and Bango�s payment to You of the Bango Purchase Price for that In-‐App Product shall be the consideration paid to You for Your performance of Your fulfillment obligations in connection with that In-‐App Product. You shall, to the extent required to satisfy Your fulfillment obligations, at Your sole cost and expense, securely maintain, or have maintained, on Your servers master download copies of the In-‐App Products to be fulfilled by You, and You will be responsible for any server or bandwidth costs incurred by You in connection with Your fulfillment of In-‐App Products. Upon receipt from Bango (either directly or through RIM) of notice of completion of an App-‐Initiated Purchase, You shall fulfill to the End User (via a digital download provided to the End User or through other means identified as satisfactory by Bango or RIM) the In-‐App Product purchased in such App-‐Initiated Purchase at the earlier of such time as the End User activates such digital download or requests the In-‐App Product through other means indentified as satisfactory by Bango or RIM. 3. BlackBerry In-‐App Product Guidelines. Notwithstanding Section 2(A)(1) of the Agreement, Your In-‐App Products must meet the minimum requirements set out in the BlackBerry In-‐App Product Guidelines (a copy of which is available in the Vendor Portal), as amended from time to time. Without limiting the foregoing, executable file formats are not eligible to be In-‐App Products, and must be submitted for sale through BlackBerry App World. However, You may enable (i.e. unlock) functionality that already exists within an application through an In-‐App Product (e.g. unlock a level within a game). If any of Your In-‐App Products do not meet the BlackBerry In-‐App Product Guidelines at any time, Bango may elect not to offer copies of those In-‐App Products, or cease sales of copies of those In-‐App Products. Notwithstanding Section 3(A) of the Agreement, Bango and RIM shall have the right to review and test In-‐App Products to ensure conformance with the BlackBerry In-‐App Product Guidelines before offering Your In-‐App Products for sale, but shall have no obligation to do so. Agreement in English. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Les parties ont exig� que cet accord et tous les documents connexes soient r�dig�s en anglais. The
original and controlling version of this agreement shall be the version using the English language. All translations of this agreement into other languages shall be for the convenience of the parties only, and shall not control the meaning or application of this agreement. All notices and other communications required or permitted by this agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely on the English language version thereof. La version originale et contr�lant de cette accord et la version Anglaise. Toutes les traductions de cette accord dans une autre langue est uniquement pour le b�n�fice des parties et ne sera pas contr�lant du sens de accord. Touts les avis et communications requis ou permis part cette accord doivent �tre dans la langue Anglaise et touts les interpr�tations et les applications de ces communications sera dans la langue Anglaise. Other Terms. Notwithstanding that this Addendum has been prepared by Bango, You and Bango confirm that this Addendum constitutes the understanding of the parties and is intended to be construed in a manner that is consistent with the subject matter and activities contemplated by this Addendum, and the terms and conditions of the Agreement. This Addendum is made a part of the Agreement. Other than as set forth in this Addendum, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. v10.01 (1012)
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SCHEDULE 3
BLACKBERRY PAYMENT SERVICE SDK 1. Definitions (a) “BlackBerry App World” means the RIM owned and constructed storefront portal through which Applications and certain
services are made available to end users. (b) “BlackBerry In-App Product Guidelines” means the guidelines, or section of the BlackBerry Guidelines, as amended from
time to time, required to be complied with in respect of all products, services and content that are to be purchased using the BlackBerry Payment Service.
(c) “Consumable In-App Products” means In-App Products that are designed to be consumed as they are used by End Users and may subsequently be purchased again by End Users (e.g. virtual fuel consumed in a game Application).
(d) “Commerce Solution for BlackBerry App World” means the payment infrastructure for BlackBerry App World. (e) “BlackBerry Payment Service (currently the Commerce Solution for BlackBerry App World)” means the service provided by
RIM that enables End Users to purchase products, services and content made available through Applications that have been distributed through BlackBerry App World.
(f) “Carrier Networks” means the carrier wireless telecommunications networks in a specified country, which You designate through the Vendor Portal as carrier networks on which wireless handhelds, to which Applications are downloaded, may be activated (and includes any telecommunications networks owned or operated by any other telecommunication carriers in other regions or countries with whom such telecommunications carrier has a roaming agreement).
(g) “End User” means any person, organization or entity which acquires or attempts to acquire an In-App Product, through a copy of an Application made available through the BlackBerry App World, for their own personal use and not for the purposes of resale or rental.
(h) “In-App Products” means the digital products, services and digital content that You wish to make available to End Users through copies of Applications that have been downloaded from BlackBerry App World using the BlackBerry Payment Service and for which RIM has provided notice of acceptance of same to be made available using the BlackBerry Payment Service.
(i) “Vendor Portal” means the portal provided by RIM through which You apply for registration as a BlackBerry App World vendor and submit Applications You desire to have made available through the BlackBerry App World.
Any capitalized terms that are not defined in this Agreement shall have the meaning set out in the BlackBerry App World Vendor Agreement.
2. BlackBerry Payment Service. This Schedule sets out the additional terms and conditions that You must comply with in order to
be able to exercise the rights set out in Subsection 2(i) of the License. 3. Additional Agreements. In-App Products may only be made available through copies of Your Applications that have been
downloaded through BlackBerry App World. The BlackBerry Payment Service will not work with any copy of Your Application distributed through any channel other than BlackBerry App World. You must have a BlackBerry App World Vendor Agreement in good standing with RIM in order to distribute Applications through BlackBerry App World. As with Paid Applications, RIM does not act as the merchant and/or seller of record for In-App Products and if You wish to have In-App Products made available through either Paid Applications or Free Applications, You will have to enter into an agreement with a merchant of record (“MoR”) for the BlackBerry Payment Service (or agreements with multiple MoRs covering various payment methods and jurisdictions) in order to have copies of In-App Products sold using the BlackBerry Payment Service. IN NO EVENT SHALL RIM OR ANY AIRTIME SERVICE PROVIDER (IN ITS CAPACITY AS AIRTIME SERVICE PROVIDER) HAVE ANY LIABILITY WHATSOEVER WITH RESPECT TO PAYMENTS DUE TO YOU BY AN MOR.
4. Application Revenue. You are hereby relieved of Your obligation under the BlackBerry App World Vendor Agreement to pay any portion of Your Application Revenue to RIM in respect of the sales of In-App Products made using the BlackBerry Payment Service.
5. In-App Product Acceptance. When You submit Your Application through the Vendor Portal for acceptance in BlackBerry App World, You must also provide a description of the products, services and content that You wish to make available to End Users through that Application using the BlackBerry Payment Service. You must provide all information about these potential In-App Products reasonably requested by RIM and any applicable MoR, through the Vendor Portal or otherwise, including without limitation any Vendor Content, and upon request a sample or samples of the products, content or service that You wish to have considered for acceptance as an In-App Product. Once a product, service or content is accepted as an In-App Product You will be notified of same, and once the Application through which it is to be made available is accepted and downloaded from BlackBerry App World to an End User’s device, the End User will be able to use the BlackBerry Payment Service to purchase copies of that In-App Product using the BlackBerry Payment Service. In addition to the warranties set out in this Agreement, You hereby warrant, represent and covenant that any product, service or content You wish to submit for consideration as an In-App Product will comply with the then current version of the BlackBerry In-App Product Guidelines.
6. End User Agreement. You shall include an End User agreement enforceable in the jurisdiction(s) in which the In-App Products are to be made available, under which You intend to license or sell the In-App Products, within the In-App Products, or within the Application through which the In-App Products are made available (in either case, the “In-App Product Agreement”). You must include in the In-App Product Agreement the same exclusions of liability and third party beneficiary requirements required to be in the Application EULA under the terms of the BlackBerry App World Vendor Agreement. You acknowledge and agree that neither RIM nor any MoR shall be under any obligation to enforce in any manner the provisions of the In-App Product Agreement, or any other agreement between You and the End User. Any provision of the In-App Product Agreement that is inconsistent with the provisions of this Agreement shall have no force or effect in respect of In-App Products made available through the BlackBerry Payment Service.
7. Access to BlackBerry Payment Service. RIM and/or an MoR may, at any time, in their sole discretion and for any reason whatsoever, including without limitation a breach of the BlackBerry In-App Product Guidelines, excessive returns or
BlackBerry SDK License Agreement 021111 cl 16
chargebacks associated with an In-App Product, a payment processor’s refusal to provide services in relation to an In-App Product, Your failure to meet Your fulfillment and/or support obligations set out in this Schedule, or a third party claim made in relation to an In-App Product, with or without advance notice to You, cease to make the BlackBerry Payment Services available in relation to an Application or a particular In-App Product, at all, or in part, including only in specified jurisdictions, and nothing in this Agreement shall constitute RIM’s or any MoR’s commitment to make available , or to continue to make available, the BlackBerry Payment Services in respect of Your In-App Products, or at all. If RIM does not provide You with notice of the removal prior to it taking place, RIM shall do so, by means of the Vendor Portal or otherwise, within a commercially reasonable period following the removal. You further acknowledge that RIM has the right, but has no obligation, to remove an In-App Product from an End User wireless handheld device and/or disable (in whole or in part) the operation of an In-App Product, if the End User’s payment for that In-App Product has been refunded by, or charged back to the applicable MoR, or if the End User has engaged in fraud, or as provided in the BlackBerry In-App Product Guidelines (including without limitation a breach thereof). Notwithstanding the foregoing, You further acknowledge and agree that RIM may, at any time, in RIM’s sole discretion and for any reason whatsoever, remove an In-App Product from an End User’s wireless handheld device.
8. Ongoing Availability of In-App Products/Support of In-App Products. You must continue to make In-App Products available to the End User through the Application with which they were associated on BlackBerry App World for no less than six (6) months after the date of the download of the copy of the Application through which they are made available and in no event less than the period they are required to be available to the End User by the laws in the jurisdiction of the End User. You are solely responsible for, and You agree to provide, End Users with support in making In-App Products they have purchased available to them (including providing End Users with a support contact email address), and with reasonable technical and product support to End Users with respect to the In-App Product features, installation and use, which shall include at minimum any warranty for In-App Products consistent with the laws in the jurisdiction of the End User.
9. Fulfillment/Re-fulfillment Obligations. In-App Products are not fulfilled (i.e. not hosted, delivered or enabled) through BlackBerry App World. Further, neither RIM nor any MoR fulfills any In-App Products, and You are solely responsible for fulfillment of In-App Products, and must satisfy Your fulfillment obligations in respect of each In-App Product. You therefore will be required to act as the fulfillment agent for the applicable MoR for Your In-App Products. If You require additional information about this obligation, You should contact [email protected]. Neither RIM nor any MoR associates In-App Products with Applications in My World or otherwise tracks or displays In-App Products in My World. Unless otherwise expressly agreed to in writing by RIM, for any In-App Product that is intended to be used as part of or in conjunction with the Application through which it was purchased (e.g. a level of a game), You must re-associate (i.e. re-fulfill) the In-App Product with the Application through which it was purchased, upon reinstallation of that Application from My World either: (a) automatically; or (b) upon request by the End User. In the case of Consumable In-App Products, You are only required to re-associate the portion of In-App Products that have not been consumed at the time of reinstallation. Neither RIM nor any MoR is responsible for keeping track of consumption of Consumable In-App Products. If You require additional information about these obligations, You should contact [email protected].
10. License Restrictions. The Carrier Networks and/or countries You select for an Application’s availability will automatically apply to any In-App Products made available through that Application. You acknowledge and agree that In-App Products may be downloaded by End Users with wireless handhelds operating on Carrier Networks and that Carrier Networks includes not only the wireless networks selected by You, but also wireless networks operated by the roaming partners of those carriers (and further includes any wireless networks in the case of RIM proprietary wireless handhelds that are distributed by RIM without the capability of operating on a wireless cellular network). Subject to the foregoing, If You do not have the rights necessary to distribute an In-App Product (or any portion thereof) either globally, or at least to End Users with wireless handhelds activated on both the wireless networks You specify in the Vendor Portal for the Application and on the associated roaming wireless networks, and to permit others to do so, or if You are otherwise unable to control the jurisdictions in which End User may download and/or use that In-App Product, then You must not make, or seek to make, that In-App Product available through the BlackBerry Payment Service.
11. Returns of In-App Products. You acknowledge and agree that the applicable MoR is responsible for and shall have sole discretion in setting and applying the returns policy for instances of In-App Products sold by that MoR.
12. Reporting. RIM will, from time to time, provide You with aggregated data on sales of In-App Products using the BlackBerry Payment Service. Nothing in this Agreement shall prevent RIM from obtaining and publicly disclosing aggregate data relating to the sales of In-App Products using the BlackBerry Payment Service.
13. Privacy. The Consent to Collection of Information provisions in this Agreement shall apply equally to End User Data and personally identifiable information made available in the context of the BlackBerry Payment Service. The enumerated purposes for which such information may be used as set out in the Consent to Collection of Information provision is hereby extended to include any purpose related to the provision or Your use of the BlackBerry Payment Service. Similarly, the Privacy and Data Protection provision in the BlackBerry App World Vendor Agreement applies to Your In-App Products and Your use of the BlackBerry Payment SDK and the references in the Privacy and Data Protection provision to the BlackBerry App World Guidelines shall be deemed to be references to the BlackBerry In-App Product Guidelines.
14. Confidentiality. There is no need for You to provide to RIM any confidential information in relation to the BlackBerry Payment Service, and You acknowledge and agree that RIM has no confidentiality obligation with respect to any information provided by You to RIM under or in relation to Your In-App Products, the BlackBerry Payment Service or the BlackBerry Payment Service SDK.
15. Independent Development. Notwithstanding any other provision of this Agreement, You acknowledge and agree that RIM is also a developer and licensee of digital products, services and content that operate on RIM and RIM affiliates’ proprietary software platforms, and that RIM may currently or in the future develop, use, market, promote, distribute and/or license products and/or services and/or content that are similar to and/or competitive with any In-App Products, and that no provision of this Agreement prohibits or limits in any manner RIM’s ability to do so.
16. BlackBerry Payment Service Availability. You acknowledge and agree that RIM is under no obligation to continue to make available the BlackBerry Payment Service or to make available any subsequent versions of the BlackBerry Payment Service SDK. You further acknowledge and agree that RIM may add or remove functionality with respect to the foregoing and may cease to make available the foregoing at any time without any obligation or liability to You. You shall be solely responsible for
BlackBerry SDK License Agreement 021111 cl 17
any modifications that may be required to Your Applications as a result of any modifications to or subsequent versions of the BlackBerry Payment Service and/or Payment Service SDK (including without limitation the addition or removal of functionality with respect to the foregoing).
17. Distributable Code. Notwithstanding any other provision of this Agreement, You may not modify all or any portion of the Payment Service SDK, including without limitation Distributable Code that forms part of the Payment Service SDK.
18. Additional Payment Service SDK License Restrictions (a) You shall not use the BlackBerry Payment Service for making available, and shall not provide as part of an In-App Product,
software updates, upgrades, or modifications to the associated Application or any executable file formats. However, You may enable (i.e. unlock) functionality that already exists within an Application through an In-App Product (e.g. unlock a level within a game). Updates and upgrades for Your Applications are treated as new versions of Your Applications and must be submitted through the App World submission process described in the BlackBerry App World Vendor Agreement and cannot be made available as In-App Products.
(b) With respect to the BlackBerry Payment Service payment processes You shall only rely on the user interface functionality provided by means of RIM APIs, and shall not use, invoke, or present to any End User, any other user interface functionality.
19. Termination. Notwithstanding any other provision of this Agreement, upon termination of this Agreement You shall immediately prevent any further purchases of In-App Products through Applications using the BlackBerry Payment Service.
20. Conflict. In the event of any conflict between the provisions of this Schedule 3 and the remainder of this Agreement the provisions of this Schedule 3 shall govern to the extent of such conflict.
�tre dans la langue Anglaise et touts les interpr�tations et les applications de ces communications sera dans la langue Anglaise. H. Other. DR shall not be liable for any inability to perform its obligations under this Agreement if it is unable to do so as a result of any reasons or conditions beyond DR's reasonable control. No provisions in any of Your purchase orders or other business forms (including by way of example but not limitation, any statement of work or invoice) shall modify, supersede or otherwise alter the terms of this Agreement. DR may engage the services of subcontractors or agents to assist DR in the performance of its obligations, and DR will be responsible for the acts and omissions of such subcontractors and agents. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of this Agreement or otherwise. Headings are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. v10.02 (1129) This Addendum may only be entered into by you if you are over the age of majority under the laws of your jurisdiction. Otherwise, you are expressly prohibited from entering into this Addendum, and should have your parent or guardian enter into this Addendum on your behalf. By electronically accepting this Addendum, you represent and warrant to us that you are over the age of majority under the laws of your jurisdiction. IN-‐APP PRODUCT ADDENDUM TO VENDOR AGREEMENT PLEASE READ THIS ENTIRE ADDENDUM (THE "ADDENDUM") CAREFULLY, AS IT FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON, ORGANIZATION OR ENTITY ENTERING INTO THIS AGREEMENT WHO IS LISTED ON THE VENDOR PORTAL ("You") ON THE ONE HAND, AND DIGITAL RIVER, INC. ("DR-‐Inc") AND DIGITAL RIVER IRELAND LIMITED ("DR-‐Ireland") ON THE OTHER (DR-‐INC AND DR-‐IRELAND EITHER INDIVIDUALLY OR COLLECTIVELY AS SET FORTH IN THIS AGREEMENT, "DR"). Please print a copy of this Addendum for Your records. This Addendum sets out the terms and conditions under which You will fulfill to End Users certain of Your Applications ("In-‐App Products"), the sale of copies of which are initiated through copies ofapplications made available through BlackBerry App World by DR utilizing an in-‐application purchase process via the DR Commerce Solution (an "App-‐Initiated Purchase"). References in the Agreement and this Addendum to the DR Commerce Solution shall be construed as the functionality through which DR sells both Applications through BlackBerry App World and In-‐App Products through App-‐Initiated Purchases. Before You can offer In-‐App Products to End Users through App-‐Initiated Purchases, You must first agree to the
terms and conditions of this Addendum. This Addendum forms a part of, and is incorporated by reference into, the Vendor Agreement electronically accepted by You (the "Agreement"). Your acceptance of this Addendum constitutes an offer to DR. BY ACCEPTING THIS ADDENDUM BELOW, THE PERSON ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS THE AUTHORITY TO BIND TO THIS ADDENDUM THE PERSON, ORGANIZATION OR ENTITY LISTED ON THE VENDOR PORTAL. The provision to You of the ability to offer App-‐Initiated Purchases shall constitute DR's acceptance of this Addendum whereupon this Addendum shall form a binding agreement between the parties, and a part of the Agreement. Any capitalized terms that are not defined in this Addendum shall have the meaning set out in the Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You and DR agree as follows: 1. Submitting In-‐App Products; Approval Process. Notwithstanding Section 3(A) of the Agreement, when You submit an application through the Vendor Portal for acceptance, You must also provide a description of the In-‐App Products that You wish to make available to End Users through that application through App-‐Initiated Purchases. You must provide all information about these potential In-‐App Products reasonably requested by DR or on DR's behalf by RIM, through the Vendor Portal or otherwise (including by way of example and not limitation, the name of the In-‐App Product and the Suggested Retail Price for the In-‐App Product) and upon request a sample or samples of the In-‐App Products. Your submission of the foregoing through the Vendor Portal constitutes Your request for DR to sell copies of such In-‐App Product through the DR Commerce Solution. The provision of notice to You that Your In-‐App Product has been approved for resale through the DR Commerce Solution shall constitute approval of Your request for DR to sell copies of such In-‐App Products. 2. Fulfillment by You of App-‐Initiated Purchases. . Notwithstanding Sections 3(C) and 3(I) of the Agreement, You agree and acknowledge that You, and not DR or RIM, will be solely responsible for the fulfillment of In-‐App Products. Notwithstanding Sections 3(C) and 3(I) of the Agreement, You shall, on DR's behalf as DR's fulfillment agent, fulfill each purchased In-‐App Product to the End User purchaser via digital download or otherwise make the In-‐App Product available to the End User's BlackBerry� device or through other means identified as satisfactory by DR or RIM, and DR's payment to You of the DR Purchase Price for that In-‐App Product shall be the consideration paid to You for Your performance of Your fulfillment obligations in connection with that In-‐App Product. You shall, to the extent required to satisfy Your fulfillment obligations, at Your sole cost and expense, securely maintain, or have maintained, on Your servers master download copies of the In-‐App Products to be fulfilled by You, and You will be responsible for any server or bandwidth costs incurred by You in connection with Your fulfillment of In-‐App Products. Upon receipt from DR (either directly or through RIM) of notice of completion of an App-‐
Initiated Purchase, You shall fulfill to the End User (via a digital download provided to the End User or through other means identified as satisfactory by DR or RIM) the In-‐App Product purchased in such App-‐Initiated Purchase at the earlier of such time as the End User activates such digital download or requests the In-‐App Product through other means identified as satisfactory by DR or RIM. 3. BlackBerry In-‐App Product Guidelines. Notwithstanding Section 2(A)(1) of the Agreement, Your In-‐App Products must meet the minimum requirements set out in the BlackBerry In-‐App Product Guidelines (a copy of which is available in the Vendor Portal), as amended from time to time. Without limiting the foregoing, executable file formats are not eligible to be In-‐App Products, and must be submitted for sale through BlackBerry App World. However, You may enable (i.e. unlock) functionality that already exists within an application through an In-‐App Product (e.g. unlock a level within a game). If any of Your In-‐App Products do not meet the BlackBerry In-‐App Product Guidelines at any time, DR may elect not to offer copies of those In-‐App Products, or cease sales of copies of those In-‐App Products. Notwithstanding Section 3(A)(1) of the Agreement, DR and RIM shall have the right to review and test In-‐App Products to ensure conformance with the BlackBerry In-‐App Product Guidelines before offering Your In-‐App Products for sale, but shall have no obligation to do so. Agreement in English. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Les parties ont exig� que cet accord et tous les documents connexes soient r�dig�s en anglais. The original and controlling version of this agreement shall be the version using the English language. All translations of this agreement into other languages shall be for the convenience of the parties only, and shall not control the meaning or application of this agreement. All notices and other communications required or permitted by this agreement must be in English, and the interpretation and application of such notices and other communications shall be based solely on the English language version thereof. La version originale et contr�lant de cette accord et la version Anglaise. Toutes les traductions de cette accord dans une autre langue est uniquement pour le b�n�fice des parties et ne sera pas contr�lant du sens de accord. Touts les avis et communications requis ou permis part cette accord doivent �tre dans la langue Anglaise et touts les interpr�tations et les applications de ces communications sera dans la langue Anglaise. Other Terms. Notwithstanding that this Addendum has been prepared by DR, You and DR confirm that this Addendum constitutes the understanding of the parties and is intended to be construed in a manner that is consistent with the subject matter and activities contemplated by this Addendum, and the terms and conditions of the Agreement. This Addendum is made a part of the Agreement. Other than as set forth in this Addendum, all terms and conditions of the Agreement shall remain unchanged and in full force and effect. v10.01 (1012)