General Framework Terms
This Agreement is a binding legal contract between the Customer and Evolve. By signing the Order Form, installing, accessing, or using the Services, or any portion thereof, you will be bound by the terms of this Agreement. If you agree to the terms of this Agreement on behalf of a business or organisation, you represent and warrant that you have the authority to bind that business or organisation to the terms of this Agreement and your agreement to the terms of this Agreement will be treated as the agreement of the business or organisation. If you do not agree to the terms of this Agreement, Evolve is not willing to license any right to use or access the Services to you. In such event, you may not install, access, use, or copy the Services. Notwithstanding anything to the contrary in this Agreement, your first use of the Services shall be deemed your express consent to this Agreement.
1.1. The Monthly Fees for the Services will be calculated based upon the rate as it appears in the Order Form, along with any other relevant factors or specific requirements the Customer may have.
1.2. The Monthly Fees are payable monthly by Direct Debit in advance on the 1st of the month. If the client cancels the Direct Debit within the term of this Agreement then Evolve reserves the right to stop providing the Services with immediate effect. Reinstatement of a Direct Debit cancelled within the term of this Agreement will cost £50. Evolve will charge £50 for each Direct Debit payment returned for any reason.
1.3. Additional Work will be charged at the Additional Work Rate and will be invoiced to the Customer in addition to the Monthly Fee and will be payable within 28 days from the date of the invoice by Direct Debit.
1.4. The Standard Hourly Rate (SHR) applicable shall be charged at the rate set out in the Order Form. This applies to work undertaken between Mondays to Friday within the hours of 8am to 6pm. Any Additional Work done outside these hours shall be provided entirely at the discretion of Evolve but will be chargeable at the following rates:
- Monday-Friday, 6pm – 9pm, SHR + 50%
- Monday-Friday, 9pm – 12am, SHR + 100%
- Monday-Friday, 12am – 8am, SHR + 200%
- Saturday, 9am – 6pm, SHR + 100%
- Saturday, 6pm – 9am, SHR + 200%
- Sunday and bank holidays, anytime, SHR + 200%
1.5. Remote support time is charged in 15 minute blocks with a minimum of 15 minutes.
1.6. Onsite support time is charged in 1 hour blocks with a minimum of 2 hours.
1.7. Where a technician is already onsite then time will be charged in 1 hour blocks with a minimum of 1 hour.
1.8. Should Evolve deem that a more or less experienced Evolve Technician is required to undertake any Additional Work, Evolve shall be entitled in their absolute discretion to vary the rates changed.
1.9. The fees and rates covered by this Agreement will be reviewed every 12 months.
1.10. When the charges levied change pursuant to 1.9 above, 30 days’ notice will be provided by Evolve to the Customer in writing and via email to the Designated Contact.
1.11. If the Customer wishes to terminate the Agreement as a result of the increased charges it may do so in accordance with the termination procedure stated in the Agreement.
1.12. When a payment from a Customer is declined for any reason, Evolve retain the right to charge interest on the amount owed at the rate of 10% above the business interest rate of Barclay’s Bank as well as charging an administration fee for reclaiming the amount owed from the Customer.
1.13. Certain Evolve Services require the commitment to an unconditional consecutive minimum Service Term, usually in 12 month increments (“Committed Service Term”). If you purchase a Product that involves a Committed Service Term, you agree to pay in advance in full for the entire Committed Service Term or you authorise unconditional consecutive monthly payments throughout the Committed Service Term to be charged as recurring monthly charges to your authorised payment method.. If you terminate Service at any time during a Committed Service Term, you will not receive a refund of any prepaid but unused Service and you remain obligated to pay, and you authorise Evolve to charge your payment method, for the total amount due for the remainder of your current Committed Service Term.
1.13. For work performed on behalf of UK registered organisations or on behalf of residents of the UK, all amounts invoiced will be subject to VAT payable at the then prevailing rate.
2.1. Evolve will not be responsible for any Customer Equipment while in transit to and from the Evolve’s workshop or offices. The cost of delivery of any Customer Equipment will be chargeable or the Customer can make their own arrangements to have equipment delivered and collected.
2.2. Whilst in Evolve’s workshop or offices Customer Equipment will be insured within the terms of Evolve’s current insurance policy. In the event of a requirement to claim for the loss of Customer Equipment any excesses payable will be passed on to the Customer. It is the responsibility of the Customer to ensure that data is backed up from their equipment before it is shipped to Evolve.
2.3. For Benchwork that requires a system repair, rebuild or reinstallation it is the responsibility of the Customer to provide licensed software on appropriate media. Evolve will carry out the Benchwork on a new hard disk. The cost of the new hard disk will be chargeable to the Customer. Evolve will make best endeavours to restore data from the original hard disk. The original hard disk will be returned to the customer with the Customer Equipment.
3. EVOLVE OBLIGATIONS
3.1. In consideration of payments made by the Customer, Evolve will provide the Services as chosen by the Customer and as set out in the Order Form, for the Asset List at the relevant time.
3.2. No guarantees can or will be given by Evolve regarding the length of time required for resolving Incidents.
3.3. Evolve shall allocate Evolve Technicians to Incidents and actions within Incidents as they see fit, depending on the skills, experience and availability of Evolve Technicians.
3.4. Evolve warrant that the Services will be delivered as set out in the Agreement in a professional and workmanlike manner with reasonable skill and care in reasonable time and in accordance with generally accepted industry standards.
3.5. Evolve warrant that it will have and maintain the necessary technical skills and knowledge to provide the Services.
3.6. Evolve agrees and accepts that it shall have no authority to commit the Customer to any legally binding commitments or contracts.
3.7. Subject to the foregoing all conditions, warranties, terms and undertakings express or implied, statutory or otherwise, in respect of the performance by Evolve of the Services below are hereby excluded and, without limitation to the generality of the forgoing:-
3.7.1. Evolve do not warrant that the operation of the System will be uninterrupted or error free over any specified period of time.
3.7.2. Evolve do not warrant the performance of any Third Party, including quality or accuracy of advice and support received from Third Parties.
3.8. Evolve shall maintain a Risk Register. Support of any item on the Risk Register will be on a ‘reasonable endeavours’ basis and Evolve reserve the right to charge for time or refuse to support any item on the Risk Register at any time. Items which can be included on the Risk Register are, including but not limited to:
- Items where we have recommended a fix, training or a project but the client has chosen not to have it implemented.
- Items not included on the plan that require support.
- Items requiring a Health Check or Malware Clean-up where the Customer has been unable to give Evolve access to the item.
- Items on the plan that have not been through the activation process
3.9. Where, in the reasonable opinion of Evolve, work is required beyond the scope of The Services, that work will be treated as a Service Exception defined as the following process:
3.9.1. The failing item will be placed on the Risk Register.
3.9.2. An Evolve Technician will contact the Designated Contact and explain the Additional Work.
3.9.3. If the Designated Contact does not approve the Additional Work in writing, Evolve will be under no obligation to do the Additional Work.
3.9.4. If the Additional Work is approved, the item will be removed from the Risk Register once the Additional Work is successfully completed.
4. CUSTOMER OBLIGATIONS
4.1. The Customer will be required to provide confirmation of all software licensing applicable to the System either at the commencement of the Agreement or as required by Evolve during the Agreement.
4.2. The Customer must inform Evolve of any Incidents as soon as is practically possible.
4.3. The Customer must ensure that any machine connected to the network, at any of their sites and included on the Risk Register and/or not included in the Asset List and/or not covered by this Agreement, is virus and malware free. If such a machine causes an Incident that requires work by Evolve then Evolve reserves the right to charge for such work as Additional Work.
4.4. The Customer retains overall responsibility for the System.
4.5. Any Changes made to the System by the Customer or a third party whether instructed by the Customer or not, must be approved in principle by Evolve prior to being implemented. However, such Changes will only be covered by the Agreement once approved by Evolve upon completion of the implementation. The time taken by Evolve Technicians to approve such Changes will be chargeable as Additional Work. If such work results in an Incident that requires work by Evolve then Evolve reserves the right to charge for such work as Additional Work.
4.6. Evolve will require Administrator-level access to the System at all times.
4.7. The Customer shall allow all necessary access to their premises to enable Evolve to carry out the Services. Evolve shall comply with the reasonable requirements of the Customer to ensure the identity and bona fides of any engineer or other person requiring access to the Customers premises in connection with the Agreement.
4.8. The Customer shall take all reasonable precautions to protect the health and safety of Evolve’s employees, agents and sub-contractors while on the Customers premises.
4.9. The Customer shall make available the System and supply all documentation and other information as required by Evolve.
4.10. The Customer has no rights in the property or intellectual property of any Third Party that Evolve subcontracts to provide the Services.
5. GENERAL EXCLUSIONS
5.1. The Customer accepts that computers, software and their associated products can be supplied in an imperfect state or can develop faults over time. The role of Evolve is to reduce the effects of such imperfections rather than to eliminate them.
5.2. Evolve may, in their complete discretion, exclude Third Party software from the scope of the Agreement.
5.3. When Third Party software is included within the scope of the Agreement, the Services will only be provided to users that have a reasonable level of competency and once the user has used help files and other resources available from the Third Party.
5.4. Evolve do not guarantee having expertise for all Third Party software and cannot guarantee being able to resolve all Incidents relating to Third Party software logged.
5.5. When Third Party information or services are provided Evolve can make no guarantees about quality or suitability.
5.6. Evolve give no guarantee that any Third Party software including but not limited to anti-virus, security and firewall software, whether or not recommended by Evolve will keep computer(s) free of errors, viruses, worms, trojans, email spam, spy ware, hacking or any other unauthorised access.
5.7. Evolve shall not be liable if they are unable to provide Remote Support due to a lack of remote access to the System, when the lack of remote access results from a problem with connectivity that is beyond Evolves control.
5.8. Evolve shall, at their complete discretion, decide the appropriate course of action for each Incident and will follow the necessary troubleshooting steps in order to diagnose and then rectify the Incident.
5.9. Depending upon the nature of the Incident, Evolve may have to impose a workaround to rectify the Incident as opposed to a fix.
5.10. Evolve will always aim to return the affected area of the System to an acceptable operational state, however depending on the nature of the problem this may not be possible without Changes to the System being made.
5.11. Evolve reserves the right to not install, configure or support any software for which the Customer cannot provide / produce a valid license.
5.12. For the avoidance of doubt, matters which are specifically excluded within the scope of the Services are set out in Service Specific Terms in respect of the applicable Service. Evolve are not obliged to undertake any of those matters but, in the complete discretion of Evolve, Evolve may agree to assist the Customer in respect of those matters if it is appropriate.
5.13. Evolve are not obliged to provide the Services for issues that do not relate to the System and if they do undertake work Evolve shall be entitled to charge for such work as Additional Work.
5.14. Any use of a Third Party product that is not currently enrolled in and current in payments for Services is deemed unlicensed, and Evolve will have no obligation to provide Services with respect to the Product.
6.1. In the event of a complaint in respect of the service in whole or part, the Customer shall notify Evolve as soon as possible.
6.2. When a Customer needs to raise a complaint, the complaint should be lodged with the Operations Manager verbally, in writing or by email. The Operations Manager will then investigate the complaint to resolve the issue or provide a full explanation of the actions / issues that resulted in the complaint.
6.3. If the Operations Manager is unable to satisfactorily resolve the complaint / issue in question, it will be escalated to a director at Evolve.
6.4. If Evolve fail to resolve the Customers complaint in a reasonable and or timely fashion, the Customer may exercise its right to terminate the Agreement as outlined in clause 8 below.
7. TERM OF AGREEMENT AND TERMINATION
7.1. Evolve shall be entitled to terminate the Agreement, or any aspect of it, at any time, in the event that:
7.1.1. the Customer becomes the subject of a receivership, winding up, administration or bankruptcy order (or a petition is presented in respect of any of these) or, if it otherwise appears to Evolve that the Customer is insolvent and unable to pay its debts as they fall due;
7.1.2. the Customer commits a material breach of the Agreement including failing to make payment when due and fails to remedy the breach within 30 days of receipt of written notice from Evolve;
7.1.3. Evolve has reasonable grounds and evidence for suspecting the Customer of using any part of the Services fraudulently, or attempting to do so, or of committing any other illegal or unlawful act in connection with the use of the Services.
7.2. Any termination shall be without prejudice to Evolve’s other rights or to the Customers liability for amounts payable under the Agreement.
7.3. In the event of a claim of Intellectual Property Rights infringement by any third party relating to the Product (“Infringement Claims”), Evolve reserves the right to immediately terminate this Agreement and the rights granted hereunder.
7.4. In the event of any expiration or termination of this Agreement for any reason you must immediately stop using the Services and securely destroy all related media and Specifications, if any.
8. DATA PROTECTION
8.1. Evolve aims to keep the Customers data as private as possible. The Customer acknowledges that in certain situations Evolve may be in a position to see the contents of files on the System. Evolve will apply reasonable safeguards to ensure that there is no violation of the privacy of the Customer’s data in any way.
8.2. The terms governing The Customer’s and Evolve’s exchange and processing of personal data are contained within the Data Processing Addendum incorporated into an Agreement.
8.3. The Customer understands that they can use encryption and personal security programs to increase the security and privacy of their files. The Customer agrees that if any of its files are particularly private then such precautions will be used. The Customer agrees that if they are required under any professional or statutory regulations to keep their data confidential or secure then they will encrypt them so that Evolve Technicians cannot have access to them when working on the Customer’s equipment.
8.4. The Customer understands that Evolve are not authorised by any financial regulators such as the UK Financial Services Authority or the US Securities and Exchange Commission.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The System shall remain the property of the Customer and legal ownership shall remain vested in it along with any future Changes made to the System that subsequently fall under the remit of the Agreement.
9.2. Any System documentation created under the terms of the Agreement is the property of the Customer. This will be provided to the Customer upon request as long as the Customer’s account is up to date with no invoices being disputed.
9.3. The knowledge and expertise that Evolve possess in order to perform Services as required/requested by the Customer will inherently remain vested in Evolve and the Evolve Technician in question.
10. LIMITATION OF LIABILITY
10.1. Except in respect of death or personal injury caused by Evolve’s negligence, or as expressly provided in these Terms (including within the Data Processing Addendum), Evolve will not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for loss of profits, goodwill, business opportunity, data or revenue, loss or damage suffered by the Customer as a result of an action brought by a third party or any special, indirect or consequential loss howsoever and whenever arising, even if such loss was reasonably foreseeable or Evolve had been advised of the possibility of the Customer incurring the same. This includes but is not limited to any loss incurred due to virus infection in the System.
10.2. Subject always to clause 10.2 above, Evolve’s entire liability in respect of any one act of default shall be limited to financial compensation up to 100% of the total Monthly Fees paid by the Customer in the immediately preceding 6 months (less any sums paid in respect of any previous act of default in that same period) provided that Evolve shall have 20 Business Days in which to correct the failure giving rise to the default.
10.3 In lieu of liability for losses relating to loss of data (not including personal data – please see the Data Processing Addendum for losses relating to personal data), The Customer accepts that (where applicable) their sole remedy in such circumstances is the reconstruction of the most recent back-up held by Evolve. For the avoidance of doubt, Evolve shall not be liable for any losses relating to data not held within the most recent back-up or where no back-up is present.
11.1. Definition. “Confidential Information” means all nonpublic information disclosed by a Party or any of its affiliates or its agents to the other Party that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes Personal Data.
11.2. Exclusions. Confidential Information shall not include any of such information which: (a) was publicly available at the time of disclosure by the Party disclosing such information (the “Disclosing Party”); (b) became publicly available after disclosure through no fault of the Party receiving such information (the “Receiving Party”); (c) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; or (d) was rightfully acquired by the Receiving Party after disclosure by the Disclosing Party from a third-party who was lawfully in possession of the information and was under no legal duty to the disclosing Party to maintain the confidentiality of the information.
11.3. Protection of Confidential information. Except to the extent expressly and specifically authorised in this Agreement, the Receiving Party shall: (a) maintain the confidentiality of the Confidential Information of the Disclosing Party; (b) minimise the dissemination or copying of the Confidential Information of the other Party except to the extent necessary to perform its obligations under this Agreement; (c) use the same care to prevent disclosure of the Confidential Information of the Disclosing Party to third parties as it employs to avoid disclosure, publication, or dissemination of its own Confidential Information, but in no event less than a reasonable standard of care; (d) use the Confidential Information of the Disclosing Party solely for the purpose of performing its obligations under this Agreement or exercise the express rights granted to it under this Agreement; and (e) inform its employees, officers, agents, subcontractors and independent contractors who perform duties with respect to this Agreement about these restrictions.
11.4. Permitted Disclosures. Each Party may disclose Confidential Information of the other Party to its employees, officers, agents, subcontractors and independent contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and a legal duty to protect the Confidential Information. A Party receiving Confidential Information of the other Party assumes full responsibility for the acts and omissions of its employees, officers, agents, subcontractors and independent contractors with respect to such Confidential Information.
11.5. Required Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, provided that, as soon as possible after becoming aware of such law, order, or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide notice to the Disclosing Party not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed. Each Party shall be responsible for its own costs with respect to the performance of its obligations under this Section.
11.6. Notification. Except for any disclosure permitted under Required Disclosures, in the event of any disclosure or loss of Confidential Information, the Receiving Party shall notify the Disclosing Party as soon as possible.
11.7. Injunctive Relief. Each Party acknowledges that any breach of any provision of this Section by the Receiving Party, or its employees, officers, agents, subcontractors, or independent contractors, may cause immediate and irreparable injury to the Disclosing Party, and in the event of such breach, the Disclosing Party shall be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
11.8. Return of Confidential Information. Unless it is expressly authorised by this Agreement to retain the other Party’s Confidential Information, a Party shall promptly return or destroy, at the other Party’s option, the other Party’s Confidential Information, including materials prepared in whole or in part based on such Confidential Information to the extent containing Confidential Information, and all copies thereof, at the other Party’s request, and an officer of such Party shall certify to the other Party that it no longer has in its possession or under its control any Confidential Information in any form whatsoever, or any copy thereof.
11.9.Duration. The obligations of confidentiality set forth herein shall continue in full force and effect throughout the Term and continue beyond the Term in perpetuity or for so long as permitted under applicable law.
12.1. Except with the prior written consent of Evolve, the Customer shall not (and shall procure that any sub-client, if appropriate, shall not) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment /engagement of Evolve, any Evolve Technician or any person employed or engaged by Evolve in the provision of the Services at any time during the term of this Agreement or for a further period of 6 months after the termination of this Agreement.
12.2. If the Customer commits any breach of Clause 12.1 the Customer shall, on demand, pay to Evolve a sum equal to 40% of one year’s basic salary or 40% of the annual fee that was payable by Evolve to that employee, worker or independent contractor plus the recruitment costs incurred by Evolve in replacing such person.
13. ENTIRE AGREEMENT, WAIVER AND THIRD PARTY RIGHTS
13.1. This Agreement supersedes all prior Agreements made between Evolve and the Customer for the provision of the Services and constitutes the entire Agreement between the parties relating to the Services.
13.2. No addition to or modification of any provision of this Agreement shall be binding upon the parties, except as set out herein, unless made in writing and signed by a duly authorised representative of each of the parties.
13.3. If any term, clause or condition of this Agreement is in violation of any applicable law, statute or regulation, the term, clause or condition in question shall be deemed as being deleted without effect to the remainder of this Agreement.
13.4. This Agreement shall remain in full force as if the deleted term, clause or condition had not been included, Evolve and the Customer will negotiate, in good faith, alternative terms, clauses or conditions to those deleted that are mutually acceptable to both parties.
13.5. Headings are included for convenience only and shall not affect the interpretation of the Agreement.
13.6. The Contracts (Rights of Third Parties) Act 1999 does not apply so as to give to a person who is not a party to this agreement a right under it.
13.7. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have below operate as a waiver of any breach or default by the other party.
14. FORCE MAJEURE
14.1. “Event of Force Majeure” means, in relation to party, an event or circumstance beyond the reasonable control of that party (the “Claiming Party”).
14.2. The Claiming Party shall not be deemed to be in breach of this Agreement or otherwise liable to the other party (the “Non-claiming Party”) for any delay in performance or any non-performance of any obligations under this agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an Event of Force Majeure provided that:
14.2.1. the Claiming Party could not have avoided the effect of the Event of Force Majeure by taking precautions which, having regard to all matters known to it before the occurrence of the Event of Force Majeure and all relevant factors, it ought reasonably to have taken but did not take; and
14.2.2. the Claiming Party has used reasonable endeavours to mitigate the effect of the Event of Force Majeure and to carry out its obligations under this agreement in any other way that is reasonably practicable.
14.3. The Claiming Party shall promptly notify the Non-claiming Party of the nature and extent of the circumstances giving rise to the Event of Force Majeure.
14.4. If the Event of Force Majeure in question prevails for a continuous period in excess of three months after the date on which it began, the Non-claiming Party may give notice to the Claiming Party terminating this Agreement. The notice to terminate must specify the termination date, which must be not less than 30 Business Days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, this Agreement will terminate on the termination date set out in the notice. Neither party shall have any liability to the other in respect of termination of this Agreement due to an Event of Force Majeure, but rights and liabilities which have accrued prior to termination shall subsist.
15.1. You shall defend, indemnify and hold harmless Evolve, its licensors and affiliates, and the officers, directors, employees and representatives of each of them, from and against all third party claims, demands, suits, or other proceedings of any kind, and all resulting loss, damage, liability, cost and expense (including reasonable legal fees) arising out of, resulting from, or in connection with your breach of this Agreement, the use, collection, security of (or any other authorised or unauthorised access to) Content, or your use or misuse of the Services, including any combination of the Services with any other hardware, software, or other intellectual property not provided by Evolve. Evolve reserves, and you grant to Evolve, the right to assume exclusive defense and control of any matter subject to indemnification by you. All rights and duties of indemnification that are set forth herein shall survive termination of this Agreement
15.2. If the Services become, or in Evolve’s opinion is likely to become, the subject of an infringement claim, Evolve may, in its sole and exclusive discretion, either (a) procure for you the right to continue to use the Services, or (b) replace or modify the Services so that it becomes non-infringing, without materially affecting the functionality thereof. If the alternatives specified in (a) or (b) above are not commercially reasonable in Evolve’s sole and exclusive discretion, then Evolve may terminate this Agreement, and you shall receive a pro-rated refund of all initial and one-time set up fees paid by you to Evolve (if any) for the allegedly infringing Service. This Section represents your sole and exclusive remedy and Evolve’s sole and exclusive liability for any infringement claims based on the Services.
16.1. Save for Service Requests, any notice given under the Agreement by the Customer to Evolve shall be provided to Evolve in writing by the Designated Contact at Evolve Computers, Aissela, 46 High Street, Esher, Surrey, KT10 9QY.
16.2. Evolve may change its contact details from time to time if required, by the provision of written notice to the Customer.
16.3. Any notice given under the Agreement by Evolve to the Customer shall be provided to the Customer in writing by post or fax at the address of for the Customer stated in the Agreement.
17. GOVERNING LAW
17.1. The Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.
18.1. Save in so far as otherwise expressly provided all amounts stated in this agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made below shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore.
The following definitions shall apply unless the terms have been defined elsewhere in this Agreement:
19.1. “Additional Work” means work not included within the Total Monthly fee and chargeable as per section one (1) above.
19.2. “Additional Work Rate” shall mean an hourly basis at the Standard Hourly Rate, as listed on the Order Form, and modified by the rates in section one (1) above; or, where a quote has been provided, at the rates specified in the quote.
19.3. “Agreement” means the Order Form, Service Specific Terms and these General Framework Terms together with any amendment agreed in writing and annexed hereto.
19.4. “Asset List” shall mean the items on the Initial Asset List as on the Order Form as amended subject to these General Framework Terms.
19.5. “Backup Media” means any media used as part of a Customer’s backup regime as detailed in the Backup Analysis – such as, but not limited to, tape, data cartridge, external hard disk, USB stick.
19.6. “Backup Media” means any media used as part of a Customer’s backup regime as detailed in the Backup Report.
19.7. “Backup Report” means details of backup jobs on the Customer’s System that are being managed by Evolve. The items listed on the report will change from time to time and at the discretion of Evolve.
19.8. “BCDR Device” means any hardware devices to be used with the Business Continuity Plan and which you acquire separately from Evolve.
19.9. “Benchwork” means time spent by an Evolve Technician working directly on client equipment that has been shipped to the workshop of Evolve.
19.10. “Change” means a modification that is material or otherwise that alters the hardware or software configuration of the System defined in the Agreement.
19.11. “Complex Restore” means the recovery of email databases, application databases, Third-Party applications.
19.12. “Customer” is defined on the Order Form.
19.13. “Customer Equipment” means all items of computer hardware and software that form part of the System.
19.14. “Customer Site” means the Site or Sites specified in the Agreement at which the Customer operates the System defined in the Agreement.
19.15. “Daily Backup Check” means the daily check by an Evolve Technician of all the Customer’s backup jobs listed in the Backup Report.
19.16. “Declared Date” means the date that Evolve and the Customer agree to invoke the Disaster Recovery Environment.
19.17. “Designated Contact” means the person nominated by the Customer to act as its main representative. The Designated Contact is named in the Agreement and will receive official notices, important information and formal notices regarding the Services and the Agreement.
19.18. “Disaster” means an event that prevents prolonged access to the servers protected by the Datto BCDR Device. For the purposes of this plan, a Disaster will begin on the Declared Date.
19.19. “Disaster Recovery Environment” means all servers included in the plan recovered to the BCDR Device or to the Cloud Storage.
19.20. “Disaster Recovery Restore” means the recovery of entire server images, full test restores, restores as a result of a server rebuild, restores required as part of the recovery from a disaster.
19.21. “Evolve” means Evolve Computers Limited.
19.22. “Evolve Technician” means any technical staff of Evolve assigned to provide the Services to the Customer.
19.23. “Helpdesk System” means the Evolve Helpdesk and Monitoring System.
19.24. “Incident” means any event giving rise to the request or provision of the Services and all the actions associated with it.
19.25. “Initial Asset List” is defined on the Order Form.
19.26. “Initial Term” is defined on the Order Form.
19.27. “Item Activation Fee” is defined on the Order Form.
19.28. “Maintenance Hours” is defined on the Order Form.
19.29. “Monthly Fee” means the monthly subscription fee calculated from the Asset List on a monthly basis.
19.30. “On Site Support” means the provision of Support services by Evolve at the Customer Site.
19.31. “Order Form” means the document signed by the Customer forming part of the Agreement.
19.32. “Remote Support” means the provision of the Services by Evolve at a site that is remote from the Customer Site.
19.33. “Response Time” means the time taken by Evolve to respond to an Incident from the point at which it is reported.
19.34. “Risk Register” means the list of items in respect of which support is given pursuant to Clause 3.8 above.
19.35. “Service Catalogue” means the list of existing products and services provided by Evolve.
19.36. “Service Exception” means an item subject to the process as defined in Clause 3.9 above.
19.37. “Service Request” means requests received by the Helpdesk from a Customer either by email, telephone or through the website in respect of each PC and Server or other item listed in the Asset List at the relevant time.
19.38. “Service Response” means when an Evolve Technician has spoken to the Designated Contact, has left a message for the Designated Contact to call back or has sent an email to the Designated Contact (whichever is appropriate in the reasonable opinion of the Evolve Technician) in response to a Service Request made by the Designated Contact.
19.39. “Services” means the services to be carried out under the Service Specific Terms together with any Additional Work which Evolve has agreed to carry out for the Customer.
19.40. “Standard Business Hours” means the hours defined in the Order Form.
19.41. “Standard Hourly Rate” means the rate defined in the Order Form.
19.42. “System” means the software, server(s), network or other item that comprises the Customers computer system whether or not it appears in the Asset List at the relevant time and whether or not the support of it is included within the Services.
19.43. “System Activation” means the process to bring a new Customer’s system on-board as outlined in the Service Specific Terms.
19.44. “System Audit” means the process of checking a new Customer’s system as outlined in the Service Specific Terms
19.45. “Third Party” means any party other than the Customer and Evolve and its Evolve Technicians.
19.46. “Ticket Alerts” means any tickets automatically created within the Helpdesk System which notify Evolve of problems on the Customer’s System.
19.47. “Total Monthly Fee” means the monthly fee payable calculated at the rates specified in the Order Form.
19.48. “Web Filtering Checks” means the monthly reports provided by Evolve to the customer.
19.49. “Web Protection Checks” means the monthly reports provided by Evolve to the customer.