This Appendix is required as a result of Your use of Research in Motion Limited (“RIM”) software, hardware and services as well as any printed or electronic documentation or associated media provided by Evolve Computers (the “RIM Products”) and is in addition to the terms and conditions of the Master Service Agreement. Evolve Computers does not own the RIM Products and the use thereof is subject to certain rights and limitations of which Evolve Computers needs to inform You. Your right to use the RIM Products is subject to Your agreement with Evolve Computers, and to Your understanding of, compliance with and consent to the following terms and conditions. Evolve Computers in no way represents or acts as an agent of RIM in the provision of the Hosted BES Software or any other RIM Product.
Capitalized terms used herein but not otherwise defined will have their respective meanings set forth in the Master Service Agreement. For purposes of this Appendix, the following definition will apply:
“BBSLA”means the BlackBerry Software License Agreement that relates to a copy of BlackBerry Server Software, a RIM Product.
“End User”solely for the purpose of this Appendix will mean any of Your employees, consultants or independent contractors to whom You grant permission to access the Hosted BES Software.
“End User Data”means any information or data of any kind that personally identifies (or that can be used, together with other information or data, to personally identify) an End User.
Each End User is prohibited from using the RIM Products for any purpose other than the internal business or personal purposes of the End User. You will be responsible for each End User’s compliance with this Appendix.
You agree to RIM’s current BBSLA (http://na.blackberry.com/eng/legal/bbsla.jsp or request a copy from Evolve Computers), which is incorporated by reference herein, with respect to Your and End Users’ access to the RIM Products. You acknowledge and agree that to the extent that You or Your End Users access the Hosted BES Software, the Hosted BES Software is part of the Customer’s BlackBerry Solution, defined as “Your BlackBerry Solution” under the BBSLA.
IN NO EVENT WILL RIM AND RIM’S AGENTS BE LIABLE TO ANY END USER FOR, ANY INDIRECT, ECONOMIC, SPECIAL, PUNITIVE, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS APPENDIX OR THE END USER’S USE OF THE RIM PRODUCTS, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD WAS DISCLOSED TO THE PARTIES.
The limitations, exclusions and disclaimers set out in the Master Service Agreement and this Appendix will apply: (a) whether an action, claim or demand ar ises from a breach of warranty or condition, breach of contract, tort (including negligence), strict liability or any other kind of civil or statutory liability connected with or arising out of the Master Service Agreement, this Appendix or the RIM Products; and (b) to RIM and to RIM’s affiliated companies as well as to RIM and to RIM’s affiliated companies’ directors, officers, employees, and independent contractors. Some jurisdictions do not allow limitation or exclusions of certain types of damages and/or of implied conditions or warranties. NOTWITHSTANDING ANYTHING IN THE MASTER SERVICE AGREEMENT OR THIS APPENDIX, THE LIABILITY OF EVOLVE COMPUTERS AND ITS LICENSORS TO YOU WILL BE LIMITED AND EXLUDED AT LEAST TO THE SAME EXTENT AS THE LIMITATIONS AND EXCLUSIONS OF LIABILITY PROVISIONS CONTAINED IN THE BBSLA.
In the event that You or any End User breaches the Master Service Agreement, including without limitation, any provision of this Appendix, Evolve Computers will have the right, in its sole discretion, to immediately terminate the Master Service Agreement or to terminate the portion of the Services to which such breach pertains.
Upon termination of Evolve Computers’ Master Service Agreement with RIM and any portion of the applicable license terms (including the BBSLA), this Appendix will automatically terminate.
As a condition of Evolve Computers’ ability to provide access to the RIM Products to End Users, End User will be liable to Evolve Computers for any and all damages caused as a result of any breach of the Agreement by such End User without limitation or exception.
You hereby consent, and consent on behalf of Your End Users, to Evolve Computers providing End User Data to RIM solely for the purpose of Evolve Computers providing Services to You and RIM providing Services to Evolve Computers.