OPERATIVE PROVISIONS

1. Definitions and Interpretation

1.1 “ Acceptable Use Policy” means the Evolve Acceptable Use Policy that sets out the terms upon which the Customer shall use the Services, as may be amended by Evolve from time to time; the current version of which is set out at the following address: Terms and Conditions

1.2 “ Agreement” means this Evolve Hosted Services Agreement, including the Schedules and any written amendments made in accordance with this Agreement.

1.3 “ Business Day” means any day which is not a Saturday, Sunday or public holiday in the United Kingdom.

1.4 “ Client Access Portal” means the Evolve Service Desk website at www.evolvehelp.com that can be accessed by the Client after being given the appropriate password and access information provided by Evolve.

1.5 “ Confidential Information” means all information, oral or written, including but not limited to, policies and procedures; finance, marketing and sales data; unannounced products and services; methods, plans and efforts; trade secrets; identities of and relationships with existing and prospective customers; unpublished technical data, know how, price lists, the terms and conditions of this Agreement and any other materials that have not been made available to the general public. Failure to mark any Confidential Information as confidential or proprietary will not affect its status as Confidential Information under this Agreement;

1.6 “ Control” means the ability to direct the affairs of another, whether by virtue of the ownership or shares, contract or otherwise.

1.7 “ Customer” means any individual, company, entity, organisation or business that purchases the Services through Evolve.

1.8  “ Effective Date” means the date that is set forth in the Offsite Backup Schedule.

1.9 “ Evolve Terms” means the Terms and Conditions which set out the terms for the sale of the Services to Customer as may be amended by Evolve from time to time, the current version of which is set at the following link:  Office backup

1.10 “ Infrastructure Provider” means the third-party provider of infrastructure and hosting facilities to Evolve

1.11 “ Offsite Backup Schedule” means the original Schedule document signed by You and any amendments thereto

1.12 “ Prices” means the price for the Services to be paid by Customer that are set forth in the Offsite Backup Schedule.

1.13 “ Privacy Policy” means the Evolve Privacy Policy, the current version of which is set out at the following link:  Terms and Conditions

1.14 “ Services” means the products, services and solutions to be provided by Evolve to Customer pursuant to this Agreement, which are presently set out at the following link:  https://evolvecomputers.co.uk

1.15 “ Software” means any software used as part of the Services, whether by Evolve or Customer.

1.16 Conflict of Terms. In the event of a conflict between the provisions of this Agreement and the terms contained in the Privacy Policy, the Acceptable Use Policy or any other terms and conditions, the conflict shall be resolved by giving precedence tothis Agreement, unless expressly stated otherwise.

1.17 Interpretation. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include corporate and unincorporated entities; and (in each case) vice versa.

2.  Appointment

2.1 Competing Services. The Customer accepts that should the Customer act competitively in a manner that is reasonably detrimental or of reasonable concern to Evolve, then Evolve may within 7 days’ notice terminate this Agreement unless any such competitive actions are then terminated

Sales Agents. Customer shall not resell any of the Services or a Bundled Offering itself, through a sales agent or to a sub-distributor.

3.  CUSTOMER Obligations

3.1 Customer undertakes and agrees with Evolve to:

3.1.1 ensure that it is aware of and accepts the Acceptable Use Policy before using the Services;

3.1.2 comply with Evolve requirements for orders and payment as howsoever specified by Evolve to Customer from time to time;

3.1.3 appoint a Primary Registered User who shall have authority to purchase Services on behalf of Customer;

3.1.4 Evolve shall be entitled to accept orders placed with Evolve from the Primary Registered User or any other duly authorized user of Customer as being binding on Customer;

3.1.5 in the event that Evolve agrees with the Primary Registered User to update, increase and/or change the Services in order to resolve a Customer’s support issues, the Customer shall be responsible and shall pay the cost incurred by Evolve as a result of updating, increasing and/or changing the Customer’s Services.

3.2 Compliance with Law. Customer shall comply with all applicable national, and local rules, regulations, statutes and laws. Without limiting the foregoing, Customer shall comply with all applicable data protection, SPAM, privacy and similar rules, regulations, directives and other laws, and shall comply with the Evolve Terms, Privacy Policy and other practices established by Evolve from time to time.

3.3 OFCOM Regulations. In the event that Evolve is required to comply with OFCOM rules and regulations, or any other legal body, and in doing so, is required to change, suspend and/or disable the Services as a result of Customer’s use of the Services, Evolve shall have no liability to Customer for any disruption and/or suspension to the Services.

3.4 The Customer shall and will in any event comply with the requirements of the appropriate licence agreement for the Software or such further agreement as Evolve may at any time specify in writing to the Customer. In particular both the Customer must comply with all export regulatory provisions required in any relevant end user licences for use of Software forming part of the Services;

3.5 The Customer shall comply with any necessary requirements communicated by Evolve to the Customer from time to time in respect of the Services and Software.

3.6 Indemnity for Breach. Customer shall indemnify Evolve against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Evolve as a result of Customer’s breach of this Agreement and/or breach of the Acceptable Use Policy or any neglect, omission, or wrongful act of Customer, its officers, employees, contractors or agents.

4.  SUPPLY OF SERVICES

4.1 Evolve reserves the right at its discretion to reject any order for the Services from the Customer and any rejection shall not give rise to any rights to the Customer whether arising from loss of profit or any other loss or damage howsoever arising.

4.2 Evolve shall supply the Services in accordance with the Evolve Terms and the provisions of this Agreement.

4.3 The Customer acknowledges that Evolve’ ability to perform its obligations under this Agreement is dependent upon the Customer’s full and timely cooperation with Evolve as well as the accuracy and completeness of any information and data the Customer provides to Evolve or to protect any rights which Evolve has reserved and shall otherwise comply with Evolve’ reasonable requests to assist the provision of the Services.

4.4 Evolve reserves the right to cancel and/or suspend the Services, and any Customer Program benefits, in the event the Customer fails to:

4.4.1 make any payment under this Agreement;

4.4.2 meet any credit or financial requirements established by Evolve;

4.4.3 comply with the Evolve Terms, Acceptable Use Policy, Privacy Policy and/or the terms and conditions of this Agreement.

4.5 The re-instatement of suspended Services shall be at Evolve sole discretion and the Customer shall be responsible for the prices during any period of suspension.

4.6 Evolve is entitled to vary and/or exclude from this Agreement one or more of the Services as it thinks fit. Evolve shall have the right, at its sole discretion to announce new Services.

4.7 Evolve shall be entitled to make changes to the Services and shall give notice of such changes to the Customer as soon as reasonably practicable.

4.8 Evolve shall provide the Customer with technical support as set out in the Customer Support Plan.

4.9 In the event that Evolve follows instructions with or from the Customer, the Primary Registered User to upgrade or amend the Services, any associated fees to be paid in respect of such upgrade or amendment shall be payable by the Customer to Evolve.

5.  Evolve’s Obligations

5.1 Evolve undertakes to:

5.1.1 provide such information and support as may be reasonably requested by Customer to enable it properly and efficiently to discharge its duties under this Agreement;

5.1.2 provide such technical support and in doing so may liaise with the Primary Registered Users in order to fulfil its obligations under the Customer Support Plan and/or this Agreement;

5.1.3 use reasonable efforts to provide the Customer Support Plan and such benefits as described therein provided that the failure of Evolve to provide Customer with any or all benefits as set out in the Customer Support Plan will not result in any liability to Customer or any other person. Evolve reserves the right to revise the Customer Support and applicable benefits from time to time in its sole discretion; and

6.  PRICES AND Payment

6.1 Prices. Customer shall pay Evolve for the Services at the Prices set out by Evolve. Evolve may change its Prices for all Services at any time and from time to time.  Evolve shall notify Customer of any changes to its Prices.

6.2 Expenses. Customer shall pay any and all expenses, costs and charges incurred by Customer in the performance of its obligations under this Agreement unless Evolve has expressly agreed beforehand in writing to pay such expenses, costs and charges.

6.3 Invoices. Evolve will invoice Customer monthly and Customer shall pay the full amount invoiced to it by Evolve in pounds sterling by Direct Debit. Payments will be taken in advance on the first of the month or shortly after.

6.4 Primary Obligation of Customer. Customer shall not be entitled by reason of any set-off, counter claim, abatement, or other similar deduction to withhold payment of any amount due to Evolve.

7.  Confidentiality

7.1 Each Party may have access to Confidential Information of the other party under this Agreement. A party’s Confidential Information shall not include information that:

7.1.1 is or becomes publicly known through no act or omission of the receiving party; or

7.1.2 was in the other party’s lawful possession prior to the disclosure; or

7.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

7.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or

7.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

7.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

7.3 Each Party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

7.4 This clause 7 shall survive termination of this Agreement for any reason.

8.  DATA Protectio N.

8.1 Evolve aims to keep the Clients data as private as possible. The Client 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 Client’s data in any way.

8.2 Evolve undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation insofar as the same relates to the provisions and obligations of this Agreement.

8.3 Evolve shall take reasonable steps to ensure the reliability of any employee or Evolve Technician who have access to personal data processed in connection with the Agreement.

8.4 Evolve undertake to act only on the Client’s instructions in relation to the processing of any personal data in connection with the Agreement; and undertake to allow the Client access to any relevant premises on reasonable notice to inspect the procedures described above.

8.5 The obligations set out in this clause shall remain in force not withstanding termination of this Agreement.

8.6 The Client understands that they can use encryption and personal security programs to increase the security and privacy of their files. The Client agrees that if any of its files are particularly private then such precautions will be used. The Client 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 Client’s equipment.

8.7 The Client understands that Evolve are not authorised by any financial regulators such as the UK Financial Services Authority or the US Securities and Exchange Commission.

8.8 Evolve gather and hold personal data about the Client’s employees, including names, physical and email addresses, and telephone numbers. Evolve do not hold Client credit card information.

9.  Limitation of liability

9.1 Financial Liability: The following provisions set out the entire financial liability of Evolve (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

9.1.1 any breach of this Agreement; and

9.1.2 any representation, statement or tortious act or omission (including without limitation negligence) arising under or in connection with this Agreement

9.2 Fullest Extent. Except as expressly and specifically provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

9.3 Liability Not Excluded. Nothing in this Agreement excludes the liability of Evolve:

9.3.1 For death or personal injury caused by Evolve’s negligence; or

9.3.2 For fraud or fraudulent misrepresentation.

9.4 Liability Excluded. Evolve shall not be liable for:

9.4.1 loss of profits;

9.4.2 loss of business;

9.4.3 depletion of goodwill or similar losses;

9.4.4 loss of anticipated savings;

9.4.5 loss of goods; or

9.4.6 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

9.5 Sole Remedy. Subject to clause 9.9 below Customer’s sole and exclusive remedy for any damage or loss in any way connected with Services whether or not caused by Evolve negligence or any breach of any other duty, will be, at Evolve’s option, (a) replacement or (b) repair of Services.

9.6 Aggregate Liability. Evolve’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement in respect of each event of default or series of connected events shall not exceed the maximum of 100% of the related fees paid or payable by Customer for the months in which the event of default or series of connected events of default giving rise to the liability of Evolve occurred.

9.7 Notice of Default. In the event of a default or series of defaults in connection with the Services, Customer shall immediately notify Evolve in writing and provide details of the default to enable Evolve to remedy the default in accordance with clause 9.5.

9.8 Time Period for Claims. Where Customer intends to make a claim against Evolve in respect of an event of default or series of events of default giving rise to loss or damage suffered by Customer, the claim specifying the nature of the claim in reasonable detail must be brought within six (6) months of the event or series of events of default.

10.   Term and termination

10.1 Term and Renewal. This Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year from the Effective Date and shall automatically renew for yearly periods, unless either party notifies the other in writing at least 90 days prior to the end of the then current term.

10.2 Termination by Either Party. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:

10.2.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

10.2.2 the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution, or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party.

10.3 Termination by Evolve. Without prejudice to any other rights or remedies to which Evolve may be entitled, Evolve may terminate the Agreement without liability to Customer if:

10.3.1 there is a change of control of Customer within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or

10.3.2 Customer purports to assign any of its rights or obligations under this Agreement; or

10.3.3 Customer fails to make payment in accordance with clause 6.

11.   Effects OF TERMINATION

11.1 Effects. Upon termination or expiry of this Agreement for any reason: (a) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; and (b) Subject to the foregoing provisions of this clause 11.1, all rights and licences of Customer under this Agreement shall terminate.

For the avoidance of doubt, the Customer may continue to use the Services where they hold a live contract for Services at the Termination Date. Such Services shall be bound by this agreement, where applicable, after the Termination Date.

For the avoidance of doubt, this period may not extend for any reason beyond 12 months post Agreement Termination Date for Customers with annual contracts or beyond 24 months for any two year annual Customer contracts or beyond 36 months for any three year Customer contract. Such continuation of services rights from Evolve shall also be dependent on the Customer being up to date with all amounts payable to Evolve as any non-payment or delay of amounts due to Evolve would immediately render any and all continuation of service rights described in this clause null and void.

Evolve will in addition provide commercially reasonable assistance to the Customer to transfer Services after the specific contract term purchased from Evolve for the specific Services as reasonably requested by the Customer.

11.2 No Liability for Termination. The termination of this Agreement shall not of itself give rise to any liability on the part of Evolve to pay any compensation to for loss of profits or goodwill, to reimburse Customer for any costs relating to or resulting from such termination, or for any other loss or damage. In the event Evolve is subject to any of the events in clause 10.2 Evolve is obliged to provide its Infrastructure Provider with Customer contact details, and a copy of the Customer’s End User Agreement. For the avoidance of doubt, Customer gives consent for Evolve to supply its Infrastructure Provider with such information at that time.

11.3 No Liability to End User. On termination of this Agreement Evolve will be under no obligation or liability to the Customer to continue to provide the Services but it may at its sole discretion communicate with the Infrastructure Provider and allow them to contract directly with the Customer for the provision of the Services.

12.   FORCE MAJEURE

12.1 If either party is affected by an event of Force Majeure, it shall immediately notify the other of the nature and extent of such event. Neither party shall be deemed to be in breach of this Agreement or otherwise be liable to the other by reason of any delay in performance, or non-performance, of any of its obligations (save for the Customer’s obligation to pay Evolve) to the extent that such delay or non-performance is due to any event of Force Majeure of which it has notified the other party and the time of performance of that obligation shall be extended accordingly.

12.2 If the Force Majeure Event prevails for a continuous period of more than one month, either party may terminate this agreement by giving 30 days’ written notice to the other party. On expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.

13.   GENERAL

13.1 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

13.2 Severance. If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in full force and effect. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.

13.3 Prior Agreements or Statements. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each party acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement other than as expressly set out in this Agreement.

13.4 Amendments. Save as expressly provided in this Agreement, no amendment of this Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.

13.5 Assignment. Customer shall not, without the prior written consent of Evolve, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. For purposes of this Agreement, a Change of Control shall be considered an assignment of this Agreement. Evolve may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

13.6 No Partnership. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties.

13.7 Third party rights. This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

13.8 Notices. Any notice under this Agreement must be in writing and must be delivered by hand or sent by pre-paid, first-class post, airmail or recorded delivery post to the other party at its address set out in this Agreement or such other address as may have been notified by that party for such purposes, or sent by fax (confirmed by first-class post or airmail) to the other party’s fax number as set out in this Agreement, or sent by electronic mail (with a return receipt and confirmed by pre-paid first-class post or recorded delivery post) to the other party’s email address or other communication mechanisms established as the case may be.  A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in normal business hours, at 9:00 a.m. on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received three (3) Business Days after the day of posting. A notice sent by fax will be deemed to have been received at the next Business Day after transmission (as shown by the timed printout obtained by the sender). A notice sent by electronic mail will be deemed to have been received on the next Business Day after the email was sent. In proving the giving of notice, it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.

13.9 Legal Fees. In the event legal proceedings are brought to interpret or enforce this Agreement, or otherwise with respect to the subject matter of this Agreement, the prevailing party shall be reimbursed for all costs and expenses incurred in connection with the legal proceedings, including without limitation, reasonable legal fees at trial and in any appeal hearing.

13.10       Counterparts and Scanned Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same agreement, notwithstanding that all of the parties are not signatory to the original or the same counterpart. The parties are authorised to provide and agree to accept from the other party facsimile signatures or electronically scanned (portable document format) signatures on a counterpart to this Agreement from the other party, and such facsimile counterpart or portable document file shall be deemed to be original counterpart signature page to this Agreement.

13.11       Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement, its subject matter or its formation (including non-contractual disputes or claims).