1.1 In this schedule 1C, the terms defined in clause shall have the same meaning set out in clause, and unless the context otherwise requires, the following terms shall have the following meaning. In the event that a term defined in this paragraph 1 is also defined in clause, the definition in this paragraph 1 shall apply for the purposes of this schedule 1:
1.2 BES Software means RIM’s proprietary software, regardless of the form or media in or on which it is provided, which is designed to integrate with and provide a consolidated link between one or more messaging platforms, or other corporate applications servers and Handhelds provisioned to operate with the BES Software. The BES Software is designed to communicate with Handhelds using push-based encrypted wireless data transmission;
1.3 BES Software Licence means the Blackberry Enterprise Server Software Licence Agreement entered into between the Hosting Service Provider and RIM as set out in schedule 2, as amended from time to time and communicated to the Customer by [Reseller] posting the amended version of such agreement (or a link thereto) on the [Reseller] Website;
1.4 BlackBerry SDK Software means the C++ and/or the JDE software development kits as applicable;
1.5 BlackBerry Solution means one or more of the following: the BES Software, Handhelds, Handheld Software, Desktop Software, or any RIM services that RIM expressly agrees to provide. For clarification purposes, the BlackBerry Solution specifically excludes Service Access. End Users must have a subscription for Network Services in order to use the BlackBerry Solution and/or access to network infrastructure if applicable. Network Services shall be subject to the terms and conditions of an agreement between End Users and the Network Provider pertaining to the Network Services;
1.6 Desktop Software means RIM’s proprietary desktop software, regardless of the form or media on which it is provided to the End User, which software can be used to provision and maintain cable based synchronization between Handhelds and the BES Software. If the BES Software is used to wirelessly provision and synchronize a Handheld, the Desktop Software is not a required part of the BlackBerry Solution and provides optional desktop management functionality;
1.7 End User means the Customer and any of the Customer’s employees, agents or independent contractors who use the BlackBerry Solution and/or is authorised directly or indirectly to access the BES Software or the Hosted BES Solution, or otherwise to whom the functionality of the BES Software is made available by the Hosting Service Provider to the End User;
1.8 End User Data means any information of any kind that personally identifies (or that can be used together with other information or data, to personally identify) and End User;
1.9 Handhelds means a BlackBerry wireless device manufactured by or on behalf of RIM. For clarity, Handhelds do not include PDAs or phones manufactured by or on behalf of third parties, even if such third parties are BlackBerry Connect/Built-In licensees;
1.10 Handheld Software means RIM proprietary: (a) software; (b) firmware; (c ) data flashed or otherwise residing on a Handheld at the time of purchase, or otherwise provided for installation on a Handheld; and/or (d) software sent over the wireless network to a Handheld;
1.11 Hosted BES Solution means the Hosted BES Software operated by the Hosting Service Provider on equipment owned, controlled or dedicated to the Hosting Service Provider, communicating with Handhelds of End Users which have been provisioned to operate in conjunction with such Hosted BES Software;
1.12 Hosted BES Software means those copies of the BES Software licensed by RIM to the Hosting Service Provider and which are used by the Hosting Service Provider to provide the Hosted BES Solution to End Users on the terms set out in this schedule 1C;
1.13 Network Provider means the service provider who provides the wireless network and related communication infrastructure, or access to the foregoing, as well as any licences or sub-licences reasonably necessary for the operation of or access to the foregoing that supports the provision of the BlackBerry Solution to the End User;
1.14 Network Services means wireless network services offered by a Network Provider for use in connection with the BlackBerry Solution;
1.15 Reverse Engineer includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of “dumping of RA/ROM or persistent storage”, “cable or wireless link sniffing” “protocol analysis”, or “black box” reverse engineering) software or hardware or any method or process of obtaining or converting any information, data, or software from one form into a human readable form;
1.16 RIM Licence means RIM’s then current standard software licence in whatever form or medium provided by RIM in conjunction with the RIM Software, including but not limited to the licence in respect of BES Software as communicated to the Customer by the Reseller and/or the Hosting Service Provider and the “BlackBerry End User/Software Licence Agreements” provided with the BES Software and Handhelds.
1.17 RIM Products means the Handhelds and the RIM Software
1.18 RIM Mark means any trademarks, trade names, service marks, commercial symbols, trade dress or logos the Intellectual Property Rights in which are owned by RIM;
1.19 RIM Software consists of the Desktop Software, software and/or firmware residing on or used in association with Handhelds from time to time (including without limitation the BlackBerry wireless e-mail, over the air calendar and address book applications), Blackberry SDK Software, any BES Software and all other software the Intellectual Property Rights in which are owned by RIM, but excluding all other Third Party Software;
1.20 Service Access means the services provided by RIM’s relay infrastructure (the network infrastructure connected to Network Services for the purpose of redirecting wireless e-mail and data) which is responsible for delivering such services as e-mail and data to Handhelds. Service Access includes both BlackBerry Enterprise Server Services and BIS Services;
1.21 Technical Support Services means the technical support services provided by RIM or a sub-contractor of RIM to the Customer in regard to the use and operation of RIM Products;
1.22 Transition Period means the period for transitioning End Users to an alternative service to the Hosted BES Solution provided by the Hosting Service Provider following the termination of the provision of the Hosted BES Solution under this Contract in accordance with the terms of this Contract, such period being (i) within 10 days of the effective date of termination of the provision of the Hosted BES Solution by the Hosting Service Provider under this Contract in the case of a breach by the Hosting Service Provider relating to any of RIM’s confidential information or Intellectual Property, and (ii) within 30 days from the effective date of termination of the provision of the Hosted BES Solution by the Hosting Service Provider under this Contract in all other cases.
1.23 For the purposes of this schedule 1C, each and every obligation of the Customer to do, or to refrain from doing, any act or thing shall include an obligation upon the Contractor to procure that each other End User shall also do, or refrain from doing, such act or thing.
2.1 In respect of any Hosted Enterprise Blackberry Services supplied to the Customer by Gradwell, the Customer shall comply with the terms of this schedule 1C.
2.2 Except to the extent that the following restrictions are prohibited by law, the Customer shall not:
2.2.1 modify, reproduce. or Reverse Engineer all or any portion of any RIM Products or attempt to do so; or
2.2.2 Authorise, or acquiesce in, any other person engaging in these activities, or attempting to do so; or
2.2.3 use the RIM Products or any information contained therein or otherwise provided by RIM (directly or indirectly) for the purposes of developing, or having developed any products competitive with any of the RIM Products;
2.3 The Customer shall not engage in any unauthorised use of or exploitation of the RIM Software, or engage in unauthorised use or exploitation of the Intellectual Property or confidential information of RIM, or attempt to do any of the above.
2.4 The Customer shall not use the functionality of the Hosted BES Software or the Hosted BES Solution for any purpose other than the internal business or personal purposes of the Customer.
2.5 The Customer shall not transfer, assign, copy, modify, reproduce or use any RIM Software for any purposes other than in conjunction with the permitted use of the Hosted BES Solution.
2.6 The Customer shall comply with such export restrictions arising out of encryption software in RIM’s hardware and RIM Software as communicated to the Customer by Gradwell, the Hosting Service Provider and/or RIM from time to time.
2.7 The Customer acknowledges and agrees that RIM is not responsible to the Customer or any other End User for any warranty provided by Gradwell and/or the Hosting Service Provider (if any) in respect of the Hosted BES Solution and/or the RIM Products.
2.8 All rights and licences in and to the RIM Products granted under this Contract shall terminate automatically upon the expiration of the Transition Period.
2.9 The Customer hereby consents and shall procure the consent of each End User to the disclosure by Gradwell and/or the Hosting Service Provider of the End User Data to RIM and its Associates for the purposes of enabling RIM to perform its obligations under the Master Alliance Agreement between the Hosting Service Provider and RIM in respect of the Hosted BES Solution supplied to the End User under this Contract and facilitating the transition of End Users to and alternative solution upon the termination of the provision of the Hosted BES Solution under this Contract.
2.10 The Customer shall not distribute or use in any way any viruses, contaminating or destructive features, “backdoors”, “time bombs”, “Trojan Horses”, “sniffer” routines, “worms”, bots, “drop dead devices”, harmful software code, file, program or programming routine or other contaminating or destructive features or other computer software routines or hardware components designed to:
2.10.1 permit unauthorised access to, or use of, the RIM Software, BlackBerry Solution, or computer systems on which the RIM Software is loaded, or to which RIM Products are linked,
2.10.2 disable, damage, or erase the RIM Software, or the BlackBerry Solution; or
2.10.3 perform any other similar actions that would preclude full use of the RIM Software, the RIM Products or the BlackBerry Solution by RIM, its channel partners, its authorized sub-licensees, or their end users.
2.11 The Customer shall not do any of the following acts when accessing and/or using the RIM Products and/or the Hosted BES Solution:
2.11.1 incorporate any data, content, files or materials in any medium whatsoever that:
184.108.40.206 includes content, material, graphics, sounds, video, screens, code pr information that is unlawful or fraudulent, or violates or infringes any patent, copyright, trademark, trade secret or any other Intellectual Property of others;
220.127.116.11 includes any inappropriate language, or material that is unlawful, libellous, slanderous, defamatory or invasive of another person’s right of privacy or right of publicity or personality, or that RIM may reasonably deem harmful, vulgar, obscene, derogatory, pornographic, abusive, harassing, threatening, hateful, objectionable with respect to race, religion sexual orientation, age group, national origin or gender, injurious to the reputation or business or goodwill of RIM or the BlackBerry brand or otherwise unfit for publication; or
18.104.22.168 suggests or encourages any illegal activity; or
2.11.2 publish, transmit, distribute or upload any unauthorised or unsolicited bulk email solicitations, chain letters, advertisements, marketing or promotional materials, “junk mail”, “spam”, pyramid schemes or any other solicitations or communications, including without limitation spamming the RIM Products or other mobile phones or computers, or use or collect RIM Product user e-mail addresses or phone numbers, or other user information for any purpose other than the legitimate internal purposes of the Customer, or use the RIM Products to perform any data collection, extraction or mining or gain or attempt to gain unauthorised access to the wireless device memory and software programs or applications.
2.12 The Customer shall comply with all applicable laws, regulations and agreements in respect of access to and use of the RIM Software and the Hosted BES Solution.
2.13 The Customer shall not use the Hosted BES Solution or the RIM Software to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious act.
2.14 The Customer co-operate with Gradwell, the Hosting Service Provider and/or its Licensors and provide information and copies of records requested by Gradwell, the Hosting Service Provider and/or its Licensors to assist Gradwell, the Hosting Service Provider and/or its Licensors in investigating or determining whether there has been a breach of this Contract.
2.15 The Customer shall not without the express authorisation of an authorised representative of RIM use, permit or acquiesce in any third party in using any RIM Mark in any way, including without limitation as part of any products, services, domain name or company name.
2.16 In the event that Gradwell is to procure the provision of Technical Support Services by RIM to the Customer, as a condition of Gradwell or procuring the provision of such Technical Support Services the Customer shall agree to be bound by the then current version of the Technical Support Terms that are available for the Customer to access on the website specified by RIM from time to time.
2.17 The Customer represents, if applicable, that it shall comply with high standards of ethical conduct and all applicable laws, and govern its conduct with respect for human rights in the spirit of internationally recognized social and ethical standards (e.g. Social Accountability (“SA”) 8000), including without limitation the United Nations’ “Universal Declaration of Human Rights and the Convention on Rights of the Child” which established standards regulating work place issues of international concern such as: Child Labour; Forced Labour; Health and Safety; Freedom of Association; Right to Collective Bargaining; Discrimination, Harassment and Abuse; Disciplinary Practices; Working Hours; Compensation, Wages and Benefits; and Compliance with all applicable laws.
3.1 The Customer acknowledges and agrees that it has reviewed the terms of the BES Software Licence and that it and all other End Users are deemed to be “Authorized Users” for the purposes of the BES Software Licence.
3.2 The Customer shall, and shall procure that all other End Users shall, comply with all of the obligations of and perform all actions and activities required of Authorized Users as set out in the BES Software Licence Agreement.
3.3 The Customer shall comply with the obligations in respect of export restrictions as set out in clause 8 of the BES Software Licence as if references in such clause 8 to “you” were references to the Customer.
4.1 Without prejudice to the provisions of clause, for the avoidance of doubt, RIM is not a party to this Contract and shall not be liable to the Customer in respect of any breach of this Contract.
4.2 As a condition of Gradwell’s ability to provide access to the Hosted BES Solution to End Users, to the extent permissible by law, the Customer shall be liable to Gradwell for any and all damages caused as a result of any breach of the terms in this Contract relating to the use of the RIM Products without limitation or exception.
5.1 The Customer shall defend, indemnify and hold harmless Gradwell, the Hosting Service Provider and RIM against any and all claims, actions, proceedings, costs, damages and expenses (including reasonable legal fees and disbursements) arising out of or in connection with:
5.1.1 the failure of any End User to adhere to any agreement, including a software licensing agreement, in circumstances where this is ordinarily required by RIM;
5.1.2 any unauthorised use by End Users of the RIM Software, or the confidential information or Intellectual Property Rights of RIM, or any violation by such End Users of any applicable agreement with RIM, including any RIM Licence;
5.1.3 any breach by any End User of the obligations of the Customer and/or End Users as set out in this schedule 1C and/or any breach by the Customer of any obligation to RIM under any other Agreement;
5.1.4 provided that: (a) Gradwell promptly notifies the Customer in writing no later than twenty-one (21) days after Gradwell or RIM’s receipt of notification of a potential claim; (b) the Customer may assume control of the defence of such claim and all related settlement negotiations; and (c) Gradwell provides the Customer, at the Customer’s request and expense, with assistance, information and authority necessary to perform the Customer’s obligations under this paragraph.