Obligation to provide Hosting Services
1.1 The Provider shall provide to the Customer any Hosting Services specified in Section 3 of the Statement of Work or otherwise agreed by the parties in writing in accordance with this Schedule 2.
2.1 The Provider shall create a Hosting Account for the Customer and shall provide to the Customer login details for that Hosting Account on or promptly following the Effective Date.
2.2 The Provider hereby grants to the Customer a right to use the Hosting Services for the business purposes of the Customer during the Term.
2.3 The right granted by the Provider to the Customer under Paragraph 2.2 is subject to the following limitations:
(a) the Hosting Account may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
2.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Paragraph 2.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosting Account;
(b) the Customer must not permit any unauthorised person to access or use the Hosting Account; and
(c) the Customer must not make any alteration to the Hosting Platform.
2.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.
2.6 The parties acknowledge and agree that Annex 1 (Availability SLA) to this Schedule 2 shall govern the availability of the Hosting Services.
2.7 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Hosting Platform, either during or after the Term.
2.8 The Provider may suspend the provision of the Hosting Services if any amount due to be paid by the Customer to the Provider under the Contract is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosting Services on this basis.
Use of Hosting Services
3.1 The use of the Hosting Services shall be subject to the resource limitations relating to data storage, bandwidth, processor and memory utilisation that are set out in Section 3 of the Statement of Work.
3.2 The Provider may charge the Customer in respect of any use of the Hosting Services that breaches the applicable resource limitations, at such rate or rates as are specified in Section 8 of the Statement of Work.
3.3 The Customer acknowledges and agrees that the Provider may implement technological measures to prevent or inhibit the use of the Hosting Services in any way that breaches the applicable resource limitations.
3.4 The Customer must comply with Annex 2 (Acceptable Use Policy) to this Schedule 2, and must ensure that all persons using the Hosting Services with the authority of the Customer or by means of the Hosting Account comply with Annex 2 (Acceptable Use Policy) to this Schedule 2.
3.5 The Customer acknowledges and agrees that the Provider may send to any established and recognised anti-spam organisation such details of the Customer (which may include personal names, business names, addresses, email addresses, telephone numbers and IP addresses) as the Provider considers reasonably necessary to enable the relevant organisation to properly conduct its business.
3.6 The Customer must not use the Hosting Services in any way that causes, or may cause, damage to the Hosting Services or Hosting Platform or impairment of the availability or accessibility of the Hosting Services.
3.7 The Customer must not use the Hosting Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.8 The Customer must ensure that any software (including scripts) uploaded to the Hosting Platform is reasonably secure, has the appropriate file access permissions set and does not contain any malicious code.
3.9 If there is a breach of this Paragraph 3 or Annex 2 (Acceptable Use Policy) to this Schedule 2, the Provider may suspend the Hosting Services or any element of the Hosting Services until such time as the breach is remedied or the Customer has purchased additional resources.
4.1 This Clause 4 applies where the Provider agrees to make available to the Customer shared hosting.
4.2 The Provider will make available to the Customer hosting capacity on a shared server meeting the specification set out in Section 3 of the Statement of Work.
4.3 The Provider will make available to the Customer the ability to access, update or amend the Hosted Materials by FTP or similar means.
4.4 For the avoidance of doubt, the Customer will not have administration rights in relation to any shared server, and the Provider may refuse any request to change the configuration of a shared server at its sole discretion.
4.5 Charges payable in respect of shared hosting will be as specified in Section 8 of the Statement of Work.
5.1 This Clause 5 applies where the Provider agrees to make available to the Customer a dedicated server.
5.2 The Provider will make available for the exclusive use of the Customer a dedicated server to the Customer meeting the specification set out in Section 3 of the Statement of Work, and will grant to the Customer administration rights with respect to that server.
5.3 For the avoidance of doubt, dedicated servers made available under this Agreement will remain the property of the Provider at all times.
5.4 Charges payable in respect of dedicated servers will be as specified in Section 8 of the Statement of Work.
6.1 The Provider may from time to time suspend the Hosting Services and/or access to the Hosting Account for the purposes of scheduled maintenance, providing that such scheduled maintenance must be carried out in accordance with this Paragraph 6.
6.2 The Provider shall where practicable give to the Customer at least 10 Business Days' prior written notice of scheduled maintenance that is likely to affect the availability of the Hosting Services or Hosting Account or is likely to have a material negative impact upon the Hosting Services or Hosting Account.
6.3 The Provider shall ensure that all scheduled maintenance is carried out outside Business Hours.
6.4 The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosting Services and/or Hosting Account are unavailable as a result of scheduled maintenance does not exceed 21.56 minutes.
6.5 The parties acknowledge and agree that Annex 3 (Hosting Platform Maintenance SLA) to this Schedule 2 shall govern the maintenance of the Hosting Services.
7.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Hosted Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Contract, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Contract.
7.2 The Customer warrants to the Provider that the Hosted Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.3 The Customer shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform, unless specified in a Statement of Work or otherwise agreed by the parties in writing.
Termination of Hosting Services
8.1 Either party may terminate the Hosting Services under the Statement of Work by giving to the other party at least 30 days' written notice of termination at any time after the end of the Minimum Term.
8.2 If the Hosting Services are terminated in accordance with the provisions of this Paragraph 8:
(a) the Customer must pay to the Provider any outstanding Charges in respect of Hosting Services provided to the Customer before the date of effective termination of the Hosting Services;
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Hosting Services that were to be provided to the Customer after the date of effective termination of the Hosting Services; and~
(c) the Contract will continue notwithstanding such termination.
8.3 For the avoidance of doubt, the Hosting Services shall automatically terminate upon the termination of the Contract.
8.4 If the Hosting Services terminate in accordance with this Paragraph 8 or the Contract terminates, then the Provider shall ensure that the Hosted Data is available to the Customer for download from the Hosting Platform during the period up to the date of effective termination and for a period of at least 30 days thereafter. Save as provided in this Paragraph 8.4, the Provider shall have no obligations following such termination to supply or make available to the Customer the Hosted Data.