SHARED EXCHANGE HOSTING
CAREFULLY READ THESE TERMS AND CONDITIONS, AS THEY FORM A BINDING LEGAL AGREEMENT BETWEEN YOU AND EVOLVE COMPUTERS LTD. ONLY AN AUTHORISED REPRESENTATIVE OF YOUR COMPANY MAY EXECUTE THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, CLOSE YOUR BROWSER AND DO NOT PROCEED WITH USING THE SERVICES.
By signing the Schedule as described with Section 12 hereof – You agree to be bound by all of the terms and conditions of (i) this Master Service Agreement with Evolve Computers Ltd. and (ii) the following:
- The attached Appendix A: Microsoft Software Use – Terms and Conditions and Appendix B: Research in Motion Use – Terms and Conditions,
- Evolve Computers’ Service Level Agreement (the “SLA” or “Service Level Agreement”), and
- Evolve Computers’ Acceptable Use Policy (the “AUP”), (collectively, this “Agreement”).
If You do not agree to any term of this Agreement, then You (i) must not sign the Schedule and (ii) do not have Evolve Computers’ permission to use the Services.
If you are an individual entering into this Agreement on behalf of an Entity (defined below), you represent and warrant that you have the authority to bind such Entity to this Agreement. If you do not have such authority, neither you nor such Entity may accept this Agreement or use the Services.
For the purposes of this Master Service Agreement, the following definitions apply:
“Access Information” means information that alone or together with other information, can provide access to any portion of Your Account, including but not limited to Your Account number, login names, passwords, credit card or other financial information, security questions and their respective answers, and any other similar information. For the avoidance of doubt, Your Access Information will include any similar information for each of Your Users.
“Account” means the account created with Evolve Computers in connection with this Agreement that relates to Your purchase or subscription to and use of Services by You and Your Users.
“Applicable Law” means any applicable foreign, federal, state or other laws, rules, regulations or interpretations of relevant Governmental Authorities.
“Beta Offerings” means any portion of the Services offered on a “beta” basis, as designated by Evolve Computers, including but not limited to products, plans, services and platforms.
“Data” means all data submitted by Your Users to Evolve Computers in connection with the Services, including all content, material, IP and similar addresses, recordings, messages, software, Account Information and Account related settings.
“Entity” means a company, corporation, partnership, association, trust, unincorporated organisation, government or political subdivision or any other legal entity.
“Governmental Authority” means a government, regulatory organisation, self-regulatory organisation, court of competent jurisdiction or similar body.
“Evolve Computers“ means Evolve Computers Ltd., a company registered in England with company
number 03150177 and whose registered office is at 45 High Street, Hampton wick, Surrey KT2 5AA, United Kingdom.
“Services” means Evolve Computers’ hosting and/or other services, software and products, as 2200such services, software and products are offered by Evolve Computers from time to-time in its discretion and subscribed to or purchased by You through Evolve Computers’ website or otherwise, or as otherwise used by You.
“Third-Party Service” means any service or product offered by a party that is not Evolve Computers.
“User” means any of Your employees, consultants or independent contractors to whom You grant permission to
access the Services in accordance with Evolve Computers ‘entitlements procedures and this Agreement.
“You” and “Your” means the individual or Entity on whose behalf this Agreement is accepted.
1. SCOPE; ACCESS; SECURITY.
1.1. Access to Services. Subject to and in accordance with the terms of this Agreement, Evolve Computers grants You a non-exclusive, non-sub licensable, non-transferable, non-assignable, revocable licence for the term of this Agreement to access and use the Services only by Your Users for internal business purposes only. You agree to comply with the terms and conditions of this Agreement and with all applicable Evolve Computers procedures and policies that further define use of the Services. You acknowledge and agree that the actions of any of Your Users with respect to the Services will be deemed to be actions by You and that any breach by
any of Your Users of the terms of this Agreement will be deemed to be a breach by You.
1.2. Account Information and Ownership. You agree to maintain accurate Account information by providing updates to Evolve Computers promptly, but no later than five (5) business days, when any of Your Account information requires change, including any relevant Account contact information. Failure by You, for any reason, to respond within five (5) business days to any inquiries made by Evolve Computers to determine the validity of information provided by You will constitute a material breach of this Agreement. You acknowledge and agree, and expressly consent, that in the event of any dispute regarding access to or legal ownership of any Evolve Computers account or any portion thereof, including Your Account, Evolve Computers will resolve such dispute in its sole discretion. In addition, in the event of such a dispute, Evolve Computers may immediately suspend, alter or terminate any relevant account, including Your Account, or any portion thereof. You will reimburse Evolve Computers for any legal and other fees incurred with respect to any dispute regarding control or ownership of Your Account or Your Data or the same of another Evolve Computers customer. You acknowledge and agree that (i) the legal owner of all Data on the Account is You, the counterparty to this Agreement, and not any individual User, including any Account contact registered with Evolve Computers, regardless of any administrative designation (e.g., “Administrator,” “Billing Contact,” “Owner,” etc.) and (ii) Evolve Computers may request any documentation it requires to establish ownership and rights to Your Account and any related Data; provided that any User with an administrative designation has the authority to bind You to any amendments, modifications or acknowledgements regarding this Agreement or otherwise relating to the Services.
1.3. Account Security and Activity. You acknowledge and agree that You are solely responsible for (i) maintaining the confidentiality and security of Your Access Information, and (ii) all activities that occur in connection with Your Account, whether initiated by You, by others on Your behalf or by any other means. You will notify Evolve Computers immediately of any unauthorised use of Your Account, Access Information or any other actual or potential breach of security. You acknowledge and agree that Evolve Computers will not be liable for any loss that You may incur as a result of any party using Your Access Information, either with or without Your knowledge and/or authorisation. You further agree that You may be held liable for losses incurred by Evolve Computers, any Evolve Computers Party or another party due to any party using Your Access Information. Evolve Computers strongly recommends that You keep Your Access Information in a secure location, take precautions to prevent others from accessing it and change it when necessary to maintain its confidentiality and security. Evolve Computers specifically disclaims all liability for any activity in Your Account, whether authorised by You or not.
2. TERM AND TERMINATION.
2.1. Term. The Agreement term is either the Initial Term or Renewal Term (each, a “Term”) as defined herein.
(a) Monthly Plan Agreement Term .For a Monthly Plan with Evolve Computers, the Initial Term is the period from the date of Your initial payment or acceptance of this Agreement, whichever occurs earlier, through the remainder of that calendar month. A Renewal Term for a Monthly Plan is defined as one calendar month beginning at the end of the Initial Term and each subsequent calendar month thereafter.
(b) 6 Month Extended Plan Agreement Term. For a 6 Month Extended Plan with Evolve Computers, the Initial Term is the period from the date of Your initial payment or acceptance of this Agreement, whichever occurs earlier, through the remainder of that calendar month and continuing through the next six (6) calendar months (for example, a 6 Month Extended Plan that begins on 14th April will continue until 31st October), unless the parties have agreed in writing to a longer term. A Renewal Term for a 6 Month Extended Plan is defined as the six-month period beginning at the end of the Initial Term and each subsequent six-month period thereafter.
(c) 12 Month Extended Plan Agreement Term. For a 12 Month Extended Plan with Evolve Computers, the Initial Term is the period from the date of Your initial payment or acceptance of this Agreement, whichever occurs earlier, through the remainder of that calendar month and continuing through the next twelve (12) calendar months (for example, if it begins on 14th April, it will continue until 30th April of the following year), unless the parties have agreed in writing to a longer term. A Renewal Term for a 12 Month Extended Plan is defined as the twelve-month period beginning at the end of the Initial Term and each subsequent twelve-month period thereafter.
(d) Automatic Renewal. This Agreement will renew automatically at the end of the then-current Term for a Renewal Term unless terminated in accordance with this Agreement by either You or Evolve Computers.
2.2. Termination by You.
(a) Monthly Plan. For a Monthly Plan, You may terminate this Agreement for any reason by writing to Evolve Computers prior to the beginning of any Renewal Term. If You terminate a Monthly Plan prior to the end of the then-current Term, Evolve Computers will not be required to refund to You any fees already paid.
(b) 6 Month Extended Plan or 12 Month Extended Plan (each an “Extended Plan”). For an Extended Plan, if Service Availability (as defined in the SLA) drops below 80% for a period of 2 consecutive months or more and/or if Evolve Computers is not able to restore more than 120 hours of Exchange Data (as defined in the SLA) except when such drop in Service Availability or inability to restore Exchange Data is caused (whether directly or indirectly) by any Force Majeure Event (as defined in Section 14.6 below), then You may terminate this Agreement by writing to Evolve Computers prior to the beginning of any Renewal Term. Evolve Computers will refund (or refrain from charging You) the monthly fees for the month in which you terminate the Services under this Section 2.2(b) and Evolve Computers will not charge You monthly fees for any month following the month in which you terminate the Services under this Section 2.2(b).
2.3. Termination by Evolve Computers.
(a) 15-Day Termination. Evolve Computers may terminate this Agreement for any reason by providing fifteen (15) calendar days notice. If Evolve Computers terminates this Agreement pursuant to this Section 2.3(a), (i) for a Monthly Plan, if the effective termination date occurs prior to the end of the then-current Term, Evolve Computers will refund (or refrain from charging You) the pro rata monthly fees for the month in which Services terminate and (ii) for an Extended Plan, Evolve Computers will refund (or refrain from charging You) the monthly fees for the month in which Services terminate. For either a Monthly Plan or an Extended Plan, if Evolve Computers terminates this Agreement pursuant to this Section 2.3(a), Evolve Computers will not charge You monthly fees for any month following the month in which Evolve Computers terminates this Agreement.
(b) Immediate Termination. Evolve Computers may terminate this Agreement (or suspend Your Account) immediately and without prior notice for any of the following reasons:
(i) Any material breach of this Agreement by You, as determined by Evolve Computers in its sole discretion, including, but not limited to, failure to make any payment when due, violation of the AUP or any other Evolve Computers policy or procedure applicable to the Services as notified to You from time to time;
(ii) If Your use of the Services results in, or is the subject of, actual or potential legal action or threatened legal action, against Evolve Computers or any of its affiliates, vendors, partners, representatives or customers, without consideration for whether such actual or potential legal action or threatened legal action is eventually determined to be with or without merit; and
(iii) Any non-material breach of this Agreement by You which remains uncured beyond ten (10) calendar days from notice by Evolve Computers.
(c) Termination or Suspension of Users. In lieu of terminating or suspending Your entire Account, Evolve Computers may suspend Your Account or terminate or suspend individual Users.
(d) No Refunds; Further Payment Due. If Evolve Computers terminates this Agreement pursuant to Section 2.3(b), (i) Evolve Computers will not refund to You any paid fees and (ii) You will be liable for any payment that would have been due had You terminated pursuant to section 2.2.
2.4. Following Termination. Termination will not cancel or waive any fees owed to Evolve Computers or incurred prior to or upon termination. You agree that Evolve Computers may charge such unpaid balance to Your Account on file or otherwise bill You for such unpaid balance. Upon termination, You must promptly uninstall all software provided by Evolve Computers in connection with the Services. All of Your Data may be irrevocably deleted within fourteen (14) calendar days of termination, including but not limited to, databases, contacts, calendars, e-mail, website content, Exchange Data and any other Data hosted by Evolve Computers. It will be solely Your responsibility to secure all necessary Data from Your Account prior to termination. Evolve Computers will not be responsible or otherwise liable for any loss of Your Data or any damages arising from the deletion of Your Data following termination of the Services.
3. FEES, BILLING, TAXES, CHARGES.
3.1. Fees. The fees initially charged upon ordering any Service will be effective for the Initial Term and each Renewal Term of this Agreement, provided, that Evolve Computers will have the right to increase these fees at any time upon thirty (30) calendar days notice to You. If You do not agree with such fee increase, You will have the right to terminate this Agreement immediately upon notice, provided, that such notice of termination must be received within thirty (30) calendar days of date of notice of the fee increase. All payments made to Evolve Computers shall be in GBP.
3.2. Billing and Payment Arrangements. Evolve Computers will bill You monthly for all recurring and any applicable one-time fees in that month, including but not limited to interest, cheque paying programme fees and returned cheque fees. Evolve Computers shall make a VAT invoice available to you monthly.
3.3. Payment by Automated Means.
(a) On or about the first day of each month, Evolve Computers will apply the current monthly charges to Your automated payment method. Payment by automated means includes any form of automated payment accepted by Evolve Computers from time-to-time, including credit card, debit card, direct debit or other means.
(b) You must provide Evolve Computers with valid automated payment information as a condition to receive or use the Services. You are responsible for and agree to update Evolve Computers with any changes to Your billing and/or automated payment information (e.g. new or updated credit card, credit card expiration date or other payment account information). By providing Evolve Computers with the automated payment information, You authorise Evolve Computers to charge Your automated payment account for any amounts arising from or relating to the Services without further authorisation from You.It is Your responsibility to keep Your automated payment information up-to-date. If charges to Your automated payment account fail, Evolve Computers will email a warning to Your Account billing contacts and the automated payment will be resubmitted. Reinstatement of a cancelled automated payment within the terms of this agreement will cost £50. Evolve Computers will charge £50 for each automated payment returned for any reason.
(c) If Evolve Computers is unable to successfully process Your payment by automated means by the seventh (7th) calendar day of the month for which the payment is due, then Evolve Computers, without limiting its remedies under this Agreement, may charge You interest on the overdue amount at the rate of 4% per annum above HSBC Bank plc’s base lending rate from time to time. Such interest shall accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You shall pay the interest immediately on demand. Notwithstanding the provisions of this paragraph, Evolve Computers may at its discretion claim in the alternative interest under the Late Payment of Commercial Debts (Interest) Act 1998. You will pay all collection costs incurred by Evolve Computers (including, without limitation, reasonable attorney’s fees).
3.5. Fees for Excess Use. You will monitor and maintain Your Accounts within all Evolve Computers-specified limits and in a manner that does not disrupt the activities of Evolve Computers and other Evolve Computers customers and users. If Your usage exceeds the limits for Your Account or may disrupt the activities of other Evolve Computers customers, You agree that Evolve Computers may immediately, in its sole discretion, (i) charge You for such excess usage via Your automated payment account, (ii) upgrade You to a plan or increase the limits on Your Account to address this excess usage, and/or (iii) suspend Your Account or terminate Your Account upon notice To You. Usage and associated charges for excess usage will be determined based solely upon Evolve Computers’ collected usage information. Unused monthly allotments will not accrue or carry over from one month to any other month. Upon any upgrade or increase on the limits of Your Account, You will be responsible for the new costs and fees.
3.6. Taxes. In addition to Evolve Computers’ charges, You will be liable for all Value Added Tax and (without limitation) all other indirect and sales taxes related to the fees and charges charged to you under this Agreement.
3.7. Fees for Additional Services. You agree to pay Evolve Computers’ then-current rates and expenses, including the cost of Evolve Computers’ vendors, for any requests related to information retrieval, subpoenas, consulting and advisory services or similar work.
3.8. Bill Disputes. You will notify Evolve Computers of any dispute relating to charges billed to Your Account by submitting written notice to Evolve Computers within sixty (60) days of the date the disputed charges appeared on Your Account. The existence of a dispute will not relieve You from paying any and all amounts billed hereunder. You waive all rights to dispute any charges not disputed by written notice as required above.
3.9. Electronic Billing and Documentation. All billing and other documentation regarding the Services may be provided electronically (“Electronic Documentation”). You acknowledge and agree that You are able to view all Electronic Documentation and consent to receiving Electronic Documentation and decline to receive hard copies of any such materials.