Terms & Conditions
CONTENT PROVISION AGREEMENT
if you have the rights necessary to enable Research in Motion Limited ( "RIM" ) to distribute THE Licensed content (AS defined below) and you wish to enable rim to do so, you need to Agree to the Terms and conditions set out below, register as a Licensed content provider, and submit your Licensed content through the content portal (AS defined below). This CONTENT PROVISION 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 ENTITY, BETWEEN THE entity for whose benefit you act (in either case, "PROVIDER" ) and RIM, (RIM and PROVIDER are collectively the "Parties" and individually a "Party" ). BY CLICKING "I Accept" where provided below, PROVIDER IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. please note that you must be EIGHTEEN (18) YEARS OF AGE AND OVER THE age of majority under the laws of your jurisdiction to enter into this agreement.
1. DEFINITIONS
For the purposes set out here, the following definitions shall apply:
(a) "Affiliate" means, with respect to any legally recognizable entity, any other such entity Controlling, Controlled by, or under common Control with such entity. "Control" means direct or indirect: (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity; or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. An entity shall be deemed an Affiliate only so long as such Control exists;
(b) "Applicable Laws" means any applicable domestic or foreign law including any statute, sub-ordinate legislation or treaty, and the common law and equity, any applicable judgment, injunction, award or decree of any domestic or foreign legislative, executive, judicial or administrative body or person having or purporting to have jurisdiction in the relevant circumstances or instrumentality thereof, including any federal, state, provincial or municipal body or entity, in each case that relate to the Licensed Content and the Distribution of or otherwise making available same as authorized hereunder;
(c) "BlackBerry Device" or "Handheld Product" means a wireless device manufactured by or on behalf of RIM or a wireless device which operates in whole or in part using a RIM proprietary software platform;
(d) "Channel" means a category of content and/or programming for content available from the Multimedia Service, as determined by RIM in its absolute discretion, from time to time;
(e) "Confidential Information" means information in whatever form or medium made available by or on behalf of one Party ( "Discloser" ) to the other ( "Recipient " ) in relation to this Agreement (and includes any copies of such information that Recipient is authorized to make hereunder) that is: (a) proprietary or confidential to the Discloser or its Affiliates or to their respective customers, suppliers or other business partners including without limitation information that is embedded in, or related to a RIM product or the development, testing or commercial exploitation thereof, in whatever form or media; (b) is either specifically identified as confidential prior to or at the time of its disclosure or would generally be considered confidential in the Party's respective industries;
(f) "Content Distribution Network Partners" or "CDNPs" means a person who under a contract with RIM or an Affiliate of RIM has been granted a right or license to distribute Licensed Content;
(g) "Content Portal " means the portal provided by RIM through which Provider applies for registration as a Licensed Content provider and submits Licensed Content it desires to have made available through a RIM Application;
(h) "Copyright Collective" means any person that carries on the business of collective administration of copyright or of remuneration rights including any person that carries on the business of granting licenses or collecting royalties related to the Distribution of or otherwise making available works or other subject matter (including sound recordings and performer's performances) such as ASCAP, BMI, SESAC, SOCAN, CSI, SODRAC, NRCC, AVLA, and their international equivalents;
(i) "Distribute or otherwise make available" means to distribute copies, make available, publish, perform including publicly perform, synchronize, stream, upload, download, transmit and communicate including transmit and communicate to the public using any means of telecommunication including by wired and wireless means and digital audio and/or video transmission means, and includes making copies for any of the said purposes. The term "Distribution of or otherwise making available" shall have a corresponding meaning;
(j) "End User" means an end user of a Handheld Product;
(k) "Licensed Activities" means those acts which Provider grants RIM a right or license to perform hereunder and which are set out in Sections 2 and 9;
(l) "Licensed Content" means DRM-Free audio, audio-visual or other content provided to RIM by the Provider by means of the Content Portal or otherwise to be licensed to RIM by Provider;
(m) "Multimedia Service" means the RIM branded media delivery service whereby DRM-free audio and video content, including Licensed Content, licensed from major and independent content providers may be accessed or otherwise obtained by an End User using a RIM Application;
(n) "Reformat" includes conversion or adaption from one format to another format, encoding, transcoding and scaling;
(o) "RIM Application" means a RIM proprietary software application or applications Distributed or otherwise made available by or for RIM for use on Handheld Products that enables End Users to access or otherwise obtain the Licensed Content using the Multimedia Service;
(p) "Sunset Period" has the meaning given to it in Section 10.4; and
(q) "Territory" means the world.
2. Grant of Rights
2.1 RIM, in conjunction with RIM's CDNPs, operates or will operate a service to provide audio and/or video content to End Users. In order to facilitate distribution of the Licensed Content using the Multimedia Service, Provider will provide or otherwise make available to RIM or to a RIM designated CDNP the Licensed Content.
2.2 Provider hereby grants to RIM the following non-exclusive, royalty free, rights and licenses, throughout the Territory and for the Term and Sunset Period to:
(a) use, Reformat, reproduce, copy, and store or index, the Licensed Content or associated meta-data for the purposes of this Agreement including as reasonably required to Distribute or otherwise make available the Licensed Content for use with the Multimedia Service;
(b) Distribute or otherwise make available the Licensed Content for use with the Multimedia Service;
(c) promote and advertise (including on web site(s) and/or other portals from which the Licensed Content will be Distributed or otherwise made available for delivery to End Users), the Licensed Content in connection with the Multimedia Service, using agreed upon portions (but not all) of the Licensed Content; and
(d) permit Affiliates of RIM and CDNPs to perform the Licensed Activities.
3. Term
3.1 This Agreement shall be effective upon Provider agreeing to be bound by the terms of this Agreement (as described in the preamble above) ("Effective Date" ) and shall continue in full force and effect for the period of eighteen (18) months thereafter ("Term" ).
3.2 In the event that this Agreement has not been subject to early termination, after the expiry of the eighteen (18) months, the Term will renew automatically for successive one-year periods unless otherwise terminated by written notice from either Party to the other Party at least thirty (30) days in advance of the then current expiration date.
4. Licensed Content
4.1 Nothing in this Agreement shall transfer to RIM any ownership right, title or interest in or to any copyright, trademark, trade name or any other intellectual property right in or to the Licensed Content. Nothing in this Agreement shall transfer to Provider any ownership right, title or interest in or to, any copyright, trademark, trade name or any other intellectual property right in or to the Multimedia Service, RIM Application, or any other product or service of RIM.
4.2 The Parties acknowledge that technical advances may require changes to the Multimedia Service contemplated herein and the Parties agree to negotiate in good faith any appropriate changes to this Agreement as may be required to facilitate RIM's changes to the Multimedia Service, as determined by RIM in its sole discretion.
4.3 Upon execution of this Agreement, Provider shall promptly, and at no cost to RIM or its designated CDNPs, provide or otherwise make available the Licensed Content to RIM or its RIM designated CDNPs in a format or manner determined by RIM acting reasonably, and thereafter Provider shall provide the Licensed Content at the frequency specified by the Provider within the Content Portal. Provider acknowledges and agrees that RIM may Reformat the Licensed Content in order to conform with the technical requirements of various Handheld Products.
4.4 Provider acknowledges and agrees that RIM, may, at any time, in its sole discretion: (a) determine the Channel or Channels for the Licensed Content; (b) remove and/or suspend any or all Licensed Content from any Channel or from the Multimedia Service; (c) move Licensed Content from one Channel to another Channel; and/or (d) otherwise determine the bundling and categorizing of the Licensed Content made available through the Multimedia Service.
5. Representations, Warranties AND COVENANTS
5.1 Provider represents and warrants as of the Effective Date and covenants throughout the Term and Sunset Period that:
(a) it has the right to enter into this Agreement and that doing so will not breach the provisions of any other agreement to which Provider is a party ;
(b) it has the right to grant the rights and licenses granted in this Agreement in and to the Licensed Content and has obtained all necessary consents from all persons including, but not limited to, artists, composers, songwriters, makers, performers, producers or any other person who may have any right, title, interest, or right to license the Licensed Content, including without limitation in respect of copyright, trademarks, publicity rights, privacy rights, moral rights, and any other intellectual property or similar rights, to Distribute or otherwise make available the Licensed Content as permitted herein;
(c) it has satisfied and shall satisfy all obligations including the payment of any and all royalty, residual, re-use, licensing and other payment or fee to all applicable persons, including any such obligations pursuant to collective bargaining agreements applicable in connection with the production of the Licensed Content, such as the American Federation of Musicians, or owed to any applicable Copyright Collective (including reimbursement of RIM, its Affiliates or designated CDNPs should they be required to make any payments to any Copyright Collective or any other third party) in connection with the granting or exercise of the licenses and rights granted hereunder to RIM;
(d) the performing rights (including rights to communicate to the Public) to all music contained in the Licensed Content are: (a) controlled by a performing rights society having jurisdiction in the applicable territory; or (b) in the public domain; or (c) owned or controlled by the Provider;
(e) any information or representation provided or made by or on behalf of Provider in respect of the Licensed Content, is and shall be accurate and complete; and
(f) the Licensed Content shall: (i) comply with Applicable Laws and with the BlackBerry Podcast Content Provider Guidelines or the successor document thereto set out at http://us.blackberry.com/legal/podcast_guidelines.jsp ;(ii) contain the designation of "explicit" where required based on criteria reasonably consistent with the Recording Industry Association of America's Parental Advisory Label for Explicit Content guidelines; and (iii) without limiting the foregoing does not and shall not contain material that is obscene, pornographic, excessively violent, criminal, libellous or defamatory, provided that Provider shall not be in breach of this provision if the Licensed Content breaches an Applicable Law in the Territory or the BlackBerry App World Guidelines by virtue of a written requirement by RIM, where the only way to implement that requirement is to breach that Applicable Law or the BlackBerry App World Guidelines, provided that Provider informs RIM that that will be the effect of complying with such requirements.
5.2 Provider does not warrant uninterrupted or error-free access to the Licensed Content.
5.3 RIM represents and warrants that it has the right to enter into this Agreement and to perform as required hereunder and that doing so will not breach the terms of any other agreement to which RIM is a party.
5.4 RIM DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF RIM APPLICATION OR THE MULTIMEDIA SERVICE. RIM IS PROVIDING ACCESS TO THE RIM APPLICATION, MULTIMEDIA SERVICE AND ASSOCIATED PROGRAMS, PROCESSES, PRODUCTS, AND SERVICES 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 RIM APPLICATION, MULTIMEDIA SERVICE OR ANY ASSOCIATED PROGRAMS, PROCESSES, PRODUCTS OR SERVICES OR THEIR PERFORMANCE OR THEIR FAILURE TO PERFORM.
6. Indemnity
6.1 Provider shall indemnify, hold harmless, and if requested by RIM defend, RIM, RIM's Affiliates, and their agents, successors and assigns, and their respective directors, officers, employees, independent contractors (including without limitation any CDNP) and airtime service providers (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 a breach by Provider of this Agreement or as a result of any third party claim, suit, judgment, proceeding, or cause of action whatsoever related to or arising from any Licensed Content or the use, Distribution of or otherwise making available same as contemplated by this Agreement ("Claim" ).
6.2 In the event of becoming aware of any Claim, RIM shall: (i) notify the Provider promptly of such Claim; (ii) provide to Provider all information and assistance reasonably requested in relation to such claim, at Provider's expense; and, (iii) not admit any liability or agree to any settlements by or on behalf of Provider with respect to such Claims without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned or delayed. If RIM has requested Provider to defend a Claim, and RIM, at any time, has a reasonable basis to believe that Provider cannot or may not be able to fulfill Provider's obligations under this Section 6 then, without limiting Provider's obligations under this Section 6, RIM shall be entitled to provide notice to Provider 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 RIM is required to indemnify a third party including without limitation a CDNP or other distributor (including without limitation an airtime service provider) in respect of a claim made in relation to any of the Licensed Content against that third party, it shall be deemed to be a Claim covered by this indemnity. If a Claim hereunder brought against an airtime service provider or a CDNP, is also a claim with respect to which RIM or any RIM affiliate is required to indemnify such airtime service provider or CDNP, 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 CDNP, or each of them under this provision, and shall notify Provider of same.
7. Exclusion of Liability
IN NO EVENT SHALL ANY AIRTIME SERVICE PROVIDER, OR EXCEPT WITH RESPECT TO RIM'S BREACH OF SECTION 12 (CONFIDENTIALITY), RIM OR ITS AFFILIATES, BE LIABLE TO PROVIDER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD WAS DISCLOSED TO RIM OR AN AIRTIME SERVICE PROVIDER.
8. Limitation of Liability
8.1 IN NO EVENT SHALL ANY AIRTIME SERVICE PROVIDER, OR EXCEPT WITH RESPECT TO RIM'S BREACH OF SECTION 12 (CONFIDENTIALITY), RIM OR ITS AFFILIATES, BE LIABLE TO PROVIDER OR ANY THIRD PARTY CLAIMING THROUGH PROVIDER FOR ANY DAMAGES OF ANY KIND THAT, IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE SUM OF TWO HUNDRED AND FIFTY UNITED STATES DOLLARS (USD $250). Airtime service providers shall be third party beneficiaries solely for the purposes of this Section 8 and Sections 5.1(b), 5.1(f)(i) and (iii), and 6 and 7.
8.2 The limitations, exclusions and disclaimers 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 arising from or related to this Agreement; and (b) to RIM's Affiliates. IN NO EVENT SHALL ANY DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER (excluding Provider) OR INDEPENDENT CONTRACTOR (including without limitation any CDNP) OF RIM OR OF ANY AFFILIATES OF RIM HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT. Some jurisdictions do not allow limitation or exclusions of certain types of damages and/or of implied conditions or warranties and such provisions will be inapplicable to the extent expressly prohibited by law. NOTWITHSTANDING ANY OTHER PROVISION, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS.
9. Promotional Activities and Trademark Use
9.1 RIM shall have the right to use and display the following in connection with the Multimedia Service with respect to any advertising and promotional materials related thereto:
(a) subject to the provisions of Section 9.2, Provider's name and all Provider owned or controlled trademarks, trade names, service marks, service names, logos, iconography, names, titles and hypertext links as provided to RIM (collectively, "Provider's Marks" ) on RIM's or RIM's Affiliates' or any CDNP's web site (or respective microsites) or within the RIM Application;
(b) the name or title of any of the Licensed Content (including the name or title of any programs from which the Licensed Content is derived); and
(c) excerpts (unless otherwise agreed in writing by the Parties, each excerpt not to exceed thirty (30) seconds in length) and still images from the Licensed Content (including the name, likeness and voice of any person who appears recognizably in the Licensed Content), provided that no such use shall directly endorse any product, service or commodity other than the RIM Application, the Multimedia Service and/or any other activities authorized under this Agreement.
9.2 Any use of Provider's name and Provider's Marks authorized pursuant to Section 9.1(a) above shall be subject to the title to and ownership of Provider's name and Provider's Marks remaining with Provider and any goodwill arising from such use by RIM inuring to the benefit of Provider.
9.3 RIM agrees to permit Provider to link to its web site or to web pages within its web site via the text links " Listen to [insert name of Licensed Content or name of Provider here] on your BlackBerry® smartphone" and "Watch [insert name of Licensed Content or name of Provider here] on your BlackBerry® smartphone" and the URL www.blackberry.com/podcasts (collectively, "RIM Link(s)" ). RIM hereby grants to Provider a non‑exclusive, non-transferable, revocable, limited license to use the RIM Link(s) to create links to Provider's web site. Provider will not alter the appearance of the RIM Link(s) and will use only the approved graphical image of the RIM Link(s) supplied by RIM from time-to-time. The RIM Link(s) may not be reduced in size beyond what is electronically provided by RIM, and must include a minimum of eight percent (8%) of the RIM Link's(s') longest dimension (that is, height or width) of empty space around it so as to avoid unintended associations with other objects including without limitation type photography, borders and edges. Provider acknowledges RIM's worldwide ownership of the RIM Link(s) and will not contest such ownership. Provider agrees that all goodwill associated with the RIM Link(s) shall accrue to RIM. Provider will not use the RIM Link(s) as a feature or design element of another logo, nor combine the RIM Link(s) with Provider's Marks to create a composite mark, nor use the RIM Link(s) more prominently than Provider's name or Provider's Marks. Provider will include a notice on its web site to the effect that the RIM Link(s) is/are a trademark of RIM and is/are used under license. Provider will not use the RIM Link(s) in any manner that implies web content, service or product endorsement by RIM. Provider will not make negative or disparaging references to RIM's web content, products or services. Provider will not place RIM's web pages in a "frame" within its own site (for the purposes of this Section 9.3, "frame" means a section created if the browser display area is divided into two or more sections such that both Parties' sites appear on the same screen). Provider agrees not to use the RIM Link(s) in a manner likely to cause confusion with, dilute or damage the reputation or image of RIM or its web content, products or services.
Provider agrees to permit RIM to link to its web site or to web pages within its web site via the text links and/or URL(s) provided to RIM by the Provider by means of the Content Portal or otherwise (collectively, "Provider Link(s)" ). Provider hereby grants to RIM a non‑exclusive, non-transferable, revocable, limited license to use the Provider Link(s) to create links to RIM's web site. RIM will not alter the appearance of the Provider Link(s) and will use only the approved graphical image of the Provider Link(s) supplied by Provider from time-to-time. RIM acknowledges Provider's worldwide ownership of the Provider Link(s) and will not contest such ownership. RIM agrees that all goodwill associated with the Provider Link(s) shall accrue to Provider. RIM will not use the Provider Link(s) as a feature or design element of another logo, nor combine the Provider Link(s) with RIM's trademarks to create a composite mark, nor use the Provider Link(s) more prominently than RIM's name or RIM's trademarks. RIM will include a notice on its web site to the effect that the Provider Link(s) is/are a trademark of Provider and is/are used under license. RIM will not use the Provider Link(s) in any manner that implies web content, service or product endorsement by Provider. RIM will not make negative or disparaging references to Provider's web content, products or services. RIM will not place Provider's web pages in a frame within its own site. RIM agrees not to use the Provider Link(s) in a manner likely to cause confusion with, dilute or damage the reputation or image of Provider or its web content, products or services.
Each Party shall regularly maintain its web site such that its content remains current, accessible and in good taste. Either Party may, in its absolute discretion, terminate this Agreement immediately if it determines that the other Party or its web site would: (i) violate or infringe any copyright, trademark or other rights of third parties, or any other law, court order, governmental regulation or other ruling of any governmental agency or entity; (ii) subject such Party to any liability; or (iii) jeopardize such Party's ability to protect its rights or its property in the manner it deems appropriate. Subject to Section 10.4, in the event a Party notifies the other that it has terminated this Agreement, the other Party shall immediately withdraw the RIM Link or Provider Link as applicable, cease all use thereof, remove such Party's materials from its web site and destroy such material in any form or medium or return it, if so requested.
10. Termination
10.1 RIM may terminate this Agreement for convenience for any reason by giving ninety (90) days prior written notice to Provider.
10.2 Either Party may (without prejudice to its other rights or remedies at law or in equity) terminate this Agreement with immediate effect by notice in writing to the other if the other Party materially defaults in due performance or observance of any obligation under this Agreement and the defaulting Party has not remedied such default within thirty (30) days of receiving a written notice of that default from the non-breaching Party.
10.3 Each Party shall also have the right to terminate this Agreement immediately upon written notice in the event that the other Party ceases or threatens to cease to conduct business, becomes insolvent or makes an assignment for the benefit of creditors, or if a receiver is appointed over the whole or a substantial part of its assets, or if a petition in bankruptcy or proposal or arrangement or reorganization under bankruptcy, winding up, liquidation, creditors or debtors relief or similar legislation is filed by or against the other Party.
10.4 In the event of any termination or expiration of this Agreement, RIM, its Affiliates and CDNPs may continue to exercise all of the rights and licenses granted herein for a period not to exceed ninety (90) days from any termination or expiration of this Agreement ( "Sunset Period" ). During this period all of the provisions of this Agreement shall continue to apply. Notwithstanding the foregoing, Provider's license granted under this Agreement with respect to RIM trademarks shall immediately terminate on any termination or expiration of this Agreement.
11. Privacy
Provider agrees to comply with all applicable privacy legislation and Provider's privacy policy, which privacy policy shall be consistent with the privacy obligations set forth in the BlackBerry App World Guidelines.
12. Confidentiality
12.1 Except as specifically provided herein, Recipient shall hold Confidential Information in strict confidence. Recipient shall use and reproduce the Confidential Information only to the extent reasonably required to fulfill the purposes of this Agreement. It shall not be a breach of the obligations of the Recipient if the Recipient provides access to Confidential Information, and authorizes the use and reproduction of the Confidential Information, as is reasonably required to fulfill the purposes of this Agreement by: (a) wholly owned subsidiaries of RIM ("Subsidiaries"); and/or (b) Recipient's employees ("Employees"), provided that Recipient is vicariously liable for the failure of any Subsidiary and/or Employee to whom Confidential Information is disclosed to comply with Recipient's obligations hereunder and further provided that the Subsidiary and/or Employee: (i) has a need to know the Confidential Information to fulfill the purposes of this Agreement; and (ii) has entered into a confidentiality agreement with Recipient with terms that afford no less protection to the Confidential Information than the terms of this Agreement. Recipient may also disclose Confidential Information if and only to the extent: (i) it is required to do so by law provided that Recipient gives Discloser sufficient notice to enable it to seek an order limiting or precluding such disclosure; or (ii) Discloser gives its prior written authorization to do so which is signed by an officer of the Discloser.
12.2 RECIPIENT'S DUTIES WITH RESPECT TO CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT SHALL EXPIRE FIVE (5) YEARS FROM THE END OF THE SUNSET PERIOD HEREUNDER (EXCEPT FOR TRADE SECRETS, WHICH SHALL REMAIN SUBJECT TO THE TERMS OF THIS AGREEMENT FOR SO LONG AS THEY CONSTITUTE TRADE SECRETS).
12.3 Recipient shall use a reasonable degree of care to prevent the unauthorized use, reproduction or disclosure of the Confidential Information, which care shall not be less than the degree of care that Recipient uses to protect its own Confidential Information of a similar nature. For clarification, this does not permit Recipient to allow third parties to whom it generally permits access to Recipient's Confidential Information, access to Discloser's Confidential Information.
12.4 Confidential Information that Recipient can establish: (a) was lawfully in Recipient's possession before receipt from Discloser; or (b) is or becomes a matter of public knowledge through no fault of Recipient; or (c) was independently developed or discovered by Recipient, shall not be considered Confidential Information under this Agreement.
13. General
13.1 Amendment to Agreement. As the Term of this Agreement is subject to automatic renewal as provided in Section 3.2, 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 Provider with written notice to the most recent address or email address provided by Provider to RIM by means of the Content Portal, and RIM may provide notice of other revisions by posting the revised version of the Agreement on the Content Portal. Changes to this Agreement to reflect business practices or legal requirements shall become effective as of the date RIM provides notice of such changes to Provider. All other changes to this Agreement shall become effective ninety (90) days after the date RIM provides notice of such changes to Provider.
13.2 Assignment. This Agreement may not be assigned by Provider 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 Provider, 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, and/or independent contractors.
13.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, representations, warranties, undertakings, collateral agreements or agreements between the Parties other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and no Party has relied on any of the foregoing in agreeing to enter into this Agreement. Subject to Section 13.1, all changes to this Agreement must be made in writing and must be signed by both Parties.
13.4 Extended Meanings. Wherever in this Agreement the context so requires, the singular number shall include the plural number and vice versa and any gender herein used shall be deemed to include the feminine, masculine or gender neutral and "person" shall include an individual, partnership, corporation, joint stock company, trust (including a business trust), unincorporated association, joint venture, or other entity or a government or Governmental Authority or any agency, department or instrumentality thereof. The terms "hereof", "herein", "hereunder" and similar expressions refer to this Agreement and not to any particular Section or other portion hereof and include any agreement supplemental hereto. The terms "provision" and "provisions" refer to terms, conditions, provisions, covenants, obligations, undertakings, warranties and representations. The term "includes" or "such as" shall be construed as meaning "includes without limitation" and "such as without limitation", as the case may be.
13.5 Force Majeure. Notwithstanding any other provision of this Agreement, neither Party is liable in any way including for damages or penalty for any failure or delay in performance hereunder which is proximately caused by riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, or other similar causes beyond its reasonable control, provided the Party prevented from rendering performance notifies the other Party immediately and in detail of the commencement and nature of such cause and the probable consequences thereof, and provided further that such Party uses its reasonable efforts to render performance in a timely manner utilizing to such end such resources reasonably required in the circumstances, including obtaining supplies or services from other sources if same are reasonably available. In the event the force majeure event lasts for ninety (90) days or more, the Party that is not affected by the force majeure shall have the option to terminate this Agreement upon written notice. The failure to obtain or maintain licenses from third parties in order for a Party to grant any licenses hereunder shall not be excused under this force majeure provision.
13.6 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. Provider 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 Provider, may be joined or combined together, without the prior written consent of RIM.
13.7 Headings. The division of this Agreement into Sections and the insertion of recitals and headings are for convenience of reference only and shall not affect the construction or interpretation hereof. This Agreement was drafted with the joint participation of the Parties and shall be construed neither against nor in favour of either Party solely as a result of which Party drafted it, but rather in accordance with the fair meaning thereof.
13.8 Language. This Agreement will be interpreted and performed in the English language and all communication between RIM and Provider will be in English.
13.9 Injunctive Relief. The Parties agree that a material breach of this Agreement may cause irreparable harm to RIM, for which a remedy at law may be inadequate. Accordingly, in addition to any remedies at law, subject to any express limitations under this Agreement, RIM may seek injunctive relief without posting any security.
13.10 Notices. 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 Content Portal, and must deliver the notice by courier or email to Provider. Notice shall be effective and deemed delivered upon receipt provided that if any such notice fails to reach Provider because the information provided on the Content 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.
13.11 No Waiver. 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.
13.12 Relationship of the Parties. Each Party to this Agreement is acting as an independent contractor, and nothing in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Neither Party will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other.
13.13 Remedies Cumulative. The rights and remedies under this Agreement are cumulative, may be exercised singularly or concurrently, and are in addition to and not in substitution for any rights or remedies available at law or in equity.
13.14 Severability. To the extent any provision or portion 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.
13.15 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 5, 6, 7, 8, 10, 11, 12 and 13 shall survive the termination or expiration of this Agreement.
I have reviewed this Agreement and I am prepared and authorized to accept the terms and conditions set out above.