1. Obligations of the Customer
1.1 The Customer shall only use the Services in accordance with the terms of this Contract, the Acceptable Use Policy, any relevant manuals provided by Gradwell from time to time and any other reasonable operating instructions given to the Customer by Gradwell.
1.2 The Customer agrees not to use the Services in a way which would:
1.2.1 contravene or cause Gradwell and/or the Hosting Service Provider to contravene any laws or regulations including, but not limited to, the Act, and any licence under the Act which is applicable to Gradwell and/or the Hosting Service Provider;
1.2.2 contravene the Acceptable Use Policy;
1.2.3 cause a material degradation of the Services to any other customer of Gradwell and/or the Hosting Service Provider;
1.2.4 contravene any reasonable operating instructions or other instructions (including, without limitation, any manual) which Gradwell may provide from time to time;
1.2.5 involve the sending of unsolicited marketing or advertising materials;
1.2.6 result in the transmission or storage of any material which is intended to be a hoax call to emergency services or the sending of any pornographic, obscene or abusive, defamatory, menacing or offensive nature or which would result in the breach of any third party’s intellectual property rights, confidential information or privacy; or
1.2.7 breach or cause Gradwell and/or the Hosting Service Provider to breach any applicable data protection legislation including, but not limited to, the Data Protection Act 1998.
1.3 The Customer shall:
1.3.1 not install, use, copy, access or distribute any Software (including Third Party Software), nor allow any third party to do so, nor appoint any reseller to do so, except as expressly permitted in accordance with this Contract or as otherwise authorised by Gradwell and (in respect of Third Party Software) the relevant Licensor;
1.3.2 not use the Services in respect of hazardous environments requiring fail-safe performance in which the failure of the Services or Software could lead to death, personal injury or severe physical, property or environmental damage. Examples of these environments include the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control or life support systems;
1.3.3 not separate the components of the Software by installing them on different servers, or by upgrading or downloading them at different times; and
1.3.4 not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Software.
1.4 All Software made available for use by the Customer pursuant to this Contract is provided subject to the Licence Terms. The Customer shall observe and comply with these Licence Terms, including any restrictions on the use, copying, decompilation and transfer of the Software.
1.5 Notwithstanding any provision to the contrary, the Software licence (“Software Licence”) may be terminated by the manufacturer, supplier or licensor in accordance with its terms; and in addition (without prejudice to the generality of the foregoing) the Customer shall ensure that any Software is only used during the continuance of this Contract in accordance with a valid and subsisting Software Licence.
1.6 Except to the extent and in the circumstances expressly required to be permitted by law, the Customer shall ensure that neither it nor any third party shall copy, alter, modify, adapt, translate, decompile, disassemble or reverse engineer the Software.
1.7 The Customer agrees to indemnify, keep indemnified and hold harmless Gradwell and the Hosting Service Provider from and against any claims, proceedings or threatened proceedings from third parties and against any loss or damage suffered by Gradwell and/or the Hosting Service Provider arising from any breach by the Customer of its obligations under this Contract including this clause , and for all costs and expenses reasonably incurred by Gradwell and/or the Hosting Service Provider in investigating and defending any such claims, proceedings or threatened proceedings; such indemnity to continue notwithstanding the termination of this agreement by either party.
2. Security of the Services
2.1 Gradwell provide no guarantee or warranty as to the security of the Services and the Customer shall indemnify, keep indemnified and hold harmless Gradwell and the Hosting Service Provider, and shall pay to Gradwell such sums as would if paid to the Hosting Service Provider indemnify in full, keep indemnified and hold harmless the Hosting Service Provider from and against any claim or demand of whatsoever nature and howsoever arising as a result of the said security or any failure thereof.
2.2 Where the Customer is aware or becomes aware of any matter which the Customer knows or ought reasonably to be expected to know constitutes a threat to the security of the Services, then the Customer has a duty pursuant to this Contract immediately to advise Gradwell of such matter.
2.3 The Customer is responsible for all use and misuse of any passwords giving access to the Services.
2.4 Gradwell and its Third Party Service Providers and/or other sub-contractors shall be entitled to inspect and monitor from time to time all usage being made of the Services including communications being made and received to verify compliance with this Contract.
3. Variation of Services
3.1 Gradwell shall be entitled, upon giving not less than 30 days notice to the Customer where practical, to make variations and additions to the Services and these Terms and Conditions from time to time (acting reasonably) including:-
3.1.1 to improve or add to the Services;
3.1.2 to make changes for operational reasons where these do not have a materially adverse effect on the Services; and/or
3.1.3 to pass through any change made by any Third Party Service Provider to any Third Party Services; and/or
3.1.4 in order to comply with any law or legal obligation (whether under common law, statute, tort or otherwise), or any change to any law or legal obligation; and/or
3.1.5 in order to comply with any final order, provisional order, direction, notice, specification, designation or consent made by the Office of Communications; and/or
3.1.6 in order to maintain the integrity or security of the Services and/or any part of the systems use or to provide the Services.
3.1.7 For the avoidance of doubt, Gradwell shall not be obliged to give any greater notice of any changes by a Third Party Service Provider than the Third Party Service Provider gives to Gradwell.
3.2 Gradwell may at any time change the Services:
3.2.1 if it needs to do so to comply with any applicable safety or other statutory requirements; or
3.2.2 where the change does not materially detract from the quality or performance of the Services.
3.3 In relation to any Third Party Services, including any elements which are sub-contracted to or supplied by third parties, and any third party premises that may host any systems used to provide the Services, the following terms will apply:
3.3.1 Gradwell shall use all reasonable endeavours to monitor and supervise the supply of such Third Party Services, but, except as otherwise provided in this Contract in respect of Third Party Services provided by the Hosting Service Provider, Gradwell shall not otherwise be responsible for or liable for any malfunction, failure, non-operation, default, or non-availability of such Third Party Services, unless due to Gradwell’s negligence or default;
3.3.2 if the third party changes its specifications for the Third Party Services after the date of this Contract, or that third party replaces the same with a new version, or ceases to supply the same, or Gradwell decides to replace the same, except in respect of Third Party Services provided by the Hosting Service Provider, Gradwell shall be entitled (without prejudice to any of its other rights and remedies) to substitute for the Third Party Services an alternative which shall as far as is reasonably possible provide substantially the same functionality, and to make a reasonable resulting variation to the Charges and other terms of this Contract. Gradwell would as far as practicable pre-plan this with the Customer;
3.3.3 if the third party increases its charges for the Third Party Services, Gradwell shall be entitled to make a resulting increase to the Charges to pass on the cost increase in accordance
3.3.4 Gradwell may change the Third Party Service Provider at any time. In such case, this may involve a temporary suspension in the Service and re set-up.
4. Hosted Enterprise Blackberry Services
4.1 The additional terms set out in schedule 1 part C shall apply to the provision of the Hosted Enterprise Blackberry Services to the Customer (if applicable).