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General Framework Terms

The Agreement (including the Order Form, Service Specific Terms and the terms and conditions set out in these General Framework Terms) is a binding legal contract between the Customer and Evolve. By signing the Order Form to accept Evolve’s quote, or by 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. You must also sign the applicable separate Microsoft licence(s) or other Third Party licences in order for Evolve to provide the relevant Services to you.
The terms of this Agreement take precedence over any different terms and conditions set out in any other order or document supplied by the Customer.

1 FEES

1.1 Evolve shall invoice and the Customer shall pay the Monthly Fees and any other agreed fees, costs and expenses on a monthly basis or as otherwise agreed in writing. The Customer shall be liable for any national, European Union, value added, sales, excise, state, local, withholding or other taxes or customs duties applicable. The Customer shall at all times remain liable for payment to Evolve, notwithstanding the Customer’s choice of payment method,(including any of Customer’s financing arrangements).
1.2 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, and including but not limited to fees for third party subscription-based products supplied or resold by Evolve (such as Microsoft 365 licences).
1.3 The Monthly Fees are payable monthly by Direct Debit in advance on the 1st of the month. If the Customer 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 the Customer £50 for each Direct Debit payment returned for any reason.
1.4 Additional Work and Project Work will be agreed in advance with the Customer and invoiced in addition to the Monthly Fee and will be payable within the terms stated on the invoice, but in any event no later than 28 days from the date of the invoice by Direct Debit.
1.5 Additional Work and Project Work will be charged at the Standard Hourly Rate (SHR) 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 or Project 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%
1.6 Additional Work and Project work can be paid for in advance by purchasing Pre-Pay Hours at the rates set out in the Order Form.
1.7 Pre-Pay Hours are valid for 12 months from their purchase date. Any unused hours will expire unless an additional block is purchased on the date of expiration.
1.8 All Pre-Pay Hours expire on the termination of this Agreement.
1.9 Remote Support time that is Additional Work is charged in 15 minute blocks with a minimum of 15 minutes.
1.10 Onsite Support time that is Additional Work is charged in 1 hour blocks with a minimum of 2 hours.
1.11 Where a technician is already onsite then time that is Additional Work will be charged in 1 hour blocks with a minimum of 1 hour.
1.12 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 charged.
1.13 The fees and rates covered by this Agreement will be reviewed every 12 months.
1.14 At any time before completion of the Services, the Customer may request additions or modifications to the Services, and Evolve may identify that additions or modifications are required due to Changes or other alterations associated with the System or the Customer’s operations. In such circumstances, neither party shall unreasonably refuse to implement any such changes, provided that they have mutually agreed the changes and any corresponding adjustment to the fees and any timescales in writing. Where possible, Evolve shall endeavour to maintain the level of its fees for the duration of the then current 12 month term, but Evolve reserves the right to increase its fees during such period as a result of such changes or in the event that it incurs significant additional costs in providing the Services.
1.15 When the charges levied change pursuant to 1.13 and 1.14 above, 30 days’ notice will be provided by Evolve to the Customer in writing and via email to the Designated Contact.
1.16 If the Customer wishes to terminate the Agreement as a result of the increased charges it may do so on no less than 60 days notice prior to the end of the Initial Term or the then current Renewal Term.
1.17 When a payment from a Customer is overdue or declined for any reason, Evolve retains the right to charge interest on the amount owed at the rate of 8% above the business interest rate of Barclay’s Bank as well as charging an administration fee for reclaiming the amount owed from the Customer.
1.18 Certain Evolve Services require the commitment to an unconditional consecutive minimum Service Term, usually in 12 month increments (“Committed Service Term”). If the Customer purchases Hardware or other product that involves a Committed Service Term, the Customer agrees to pay in advance in full for the entire Committed Service Term or the Customer shall authorise unconditional consecutive monthly payments throughout the Committed Service Term to be charged as recurring monthly charges to the Customer’s authorised payment method. If the Customer terminates the Service at any time during a Committed Service Term, the Customer will not receive a refund of any prepaid but unused Service and the Customer remains obligated to pay, and authorises Evolve to charge the Customer’s payment method, for the total amount due for the remainder of the current Committed Service Term.
1.19 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. 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.

2 BENCHWORK

2.1 Evolve will not be responsible for any Customer Equipment while in transit to and from Evolve’s workshop or offices except where transit is being made by Evolve or its third party courier. The cost of collection or 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 HARDWARE AND DELIVERY

3.1 Risk in the Hardware shall pass to the Customer upon delivery to Customer’s site or to Customer’s courier. Title in the Hardware will pass to Customer upon the payment in full of the corresponding Hardware costs. Evolve will not deliver Hardware until it has received payment from the Customer or the Customer has completed a Direct Debit arrangement.
3.2 Before title has passed to the Customer and without prejudice to any of Evolve’s other rights, in the event that the Customer does not pay any overdue amount within two (2) days of Evolve’s written notice to the Customer to do so, then Evolve may repossess some or all of the Hardware at any time, and Evolve’s employees or agents may enter the Customer’s premises for that purpose, with or without vehicles. This right and licence shall continue after and despite the termination for any reason of the Agreement.
3.3 Delivery dates and times will be arranged by email with the Customer. If the Customer wishes to reschedule the delivery or if Evolve is unable to deliver due to the Customer’s reasons, then Evolve reserves the right to charge the Customer a reasonable fee to cover storage and re-delivery costs.
3.4 On Evolve’s completion of delivery, the Customer shall complete and sign the delivery certificate or other document confirming delivery. Customer’s acceptance of delivery and any associated installation services will be deemed to have taken place as soon as the Customer starts using the applicable Hardware or Services. The Customer shall not unreasonably delay or withhold signature of the delivery certificate or other confirmation of delivery.

4 EVOLVE OBLIGATIONS

4.1 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 and in accordance with the Service Plan and Service Specific Terms, for the Asset List at the relevant time.
4.2 No guarantees can or will be given by Evolve regarding the length of time required for resolving Issues.
4.3 Evolve shall allocate Evolve Technicians to Issues and actions within Issues as they see fit, depending on the skills, experience and availability of Evolve Technicians.
4.4 Evolve warrants 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.
4.5 Evolve warrants that it will have and maintain the necessary technical skills and knowledge to provide the Services.
4.6 Evolve agrees and accepts that it shall have no authority to commit the Customer to any legally binding commitments or contracts.
4.7 Subject to the warranties set out in Clauses 4.4 and 4.5 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:-
4.7.1. Evolve does not warrant that the operation of the System will be uninterrupted or error free over any specified period of time.
4.7.2. Evolve does not warrant the performance of any Third Party, including quality or accuracy of advice and support received from Third Parties.
4.8 Customer agrees that its sole remedy in respect of any non-conformance with the warranties in the Agreement is that Evolve will re-perform the applicable non-conforming Services at Evolve’s expense or if Evolve is unable to do so, Evolve shall refund the portion of fees paid by Customer applicable to the specific non-conformance and the Agreement shall terminate.
4.9 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
4.10 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:
4.10.1. The failing item will be placed on the Risk Register.
4.10.2. An Evolve Technician will contact the Designated Contact and explain the Additional Work.
4.10.3. If the Designated Contact does not approve the Additional Work in writing, Evolve will be under no obligation to do the Additional Work.
4.10.4. If the Additional Work is approved, the item will be removed from the Risk Register once the Additional Work is successfully completed.

5 CUSTOMER OBLIGATIONS

5.1 The Customer will be required to provide to Evolve in writing complete and accurate information regarding the System and confirmation of all software licensing applicable to the System, either at the commencement of the Agreement or as required by Evolve from time to time during the Agreement.
5.2 The Customer must inform Evolve of any Issues as soon as is practically possible.
5.3 Any machine connected to the network, at any of the Customer sites and included on the Risk Register and/or not included in the Asset List and/or not covered by this Agreement, causes an Issue that requires work by Evolve then Evolve reserves the right to charge for such work as Additional Work.
5.4 The Customer retains overall responsibility for the System.
5.5 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 Issue that requires work by Evolve then Evolve reserves the right to charge for such work as Additional Work.
5.6 Evolve will require Administrator-level access to the System at all times.
5.7 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.
5.8 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.
5.9 The Customer shall make available the System and supply all documentation and other information as required by Evolve.
5.10 The Customer has no rights in the property or intellectual property of any Third Party that Evolve subcontracts to provide the Services.
5.11 The Customer warrants that it has valid licences and consents in place for the operation of the System, and shall comply with the terms of any Third Party licences (including but not limited to Microsoft 365 licences) and other licence terms applicable to the System.

6 GENERAL EXCLUSIONS

6.1 The Customer accepts that computers, Hardware, 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.
6.2 Evolve may, in its complete discretion, exclude Third Party software from the scope of the Agreement.
6.3 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.
6.4 Evolve does not guarantee having expertise for all Third Party software and cannot guarantee being able to resolve all Issues relating to Third Party software logged.
6.5 When Third Party information or services are provided Evolve can make no guarantees about quality or suitability.
6.6 Evolve gives 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.
6.7 Evolve shall not be liable if it is 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 Evolve’s control.
6.8 Evolve shall, at its complete discretion, decide the appropriate course of action for each Issue and will follow the necessary troubleshooting steps in order to diagnose and then rectify the Issue.
6.9 Depending upon the nature of the Issue, Evolve may have to impose a workaround to rectify the Issue as opposed to a fix.
6.10 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.
6.11 Evolve reserves the right to not install, configure or support any software for which the Customer cannot provide / produce a valid license.
6.12 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 is 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.
6.13 Evolve is not obliged to provide the Services for issues that do not relate to the System and if Evolve does undertake work it shall be entitled to charge for such work as Additional Work.
6.14 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 such product.

7 COMPLAINTS

7.1 In the event of a complaint in respect of the service in whole or part, the Customer shall notify Evolve as soon as possible.
7.2 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.
7.3 If the Operations Manager is unable to satisfactorily resolve the complaint / issue in question, it will be escalated to a director at Evolve.
7.4 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.

8 TERM OF AGREEMENT AND TERMINATION

8.1 This Agreement shall continue and the Services shall be provided for the Initial Term and any Renewal Term(s) unless and until terminated in accordance with the arrangements set out in these General Framework Terms and the Service Specific Terms.
8.2 Either party shall be entitled to terminate the Agreement, or any aspect of it, at any time, in the event that:
8.2.1. the other party 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 that the other party is insolvent and unable to pay its debts as they fall due;
8.2.2. the other party 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; or
8.2.3. it wishes to terminate the Agreement and gives notice of termination to the other party in accordance with the termination provisions set out in the Service Specific Terms.
8.3 Evolve shall be entitled to terminate the Agreement, or any aspect of it, at any time, in the event that 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.
8.4 Any termination shall be without prejudice to Evolve’s other rights or to the Customers liability for amounts payable under the Agreement.
8.5 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.
8.6 In the event of any expiration or termination of this Agreement for any reason the Customer must immediately stop using the Services and securely destroy all related media and specifications, if any. If requested by Evolve, the Customer shall return (or Evolve shall collect from Customer’s site) at Evolve’s expense any of Evolve’s hardware or equipment located at Customer’s site, or Evolve and the Customer may agree alternative arrangements for such equipment.

9 DATA PROTECTION

9.1 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.
9.2 The terms governing the Customer’s and Evolve’s exchange and processing of personal data are contained within the Data Processing Addendum incorporated into the Agreement.
9.3 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.
9.4 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.

10 INTELLECTUAL PROPERTY RIGHTS

10.1 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.
10.2 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.
10.3 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.
10.4 Subject to the provisions of this Clause 10, Evolve shall defend at its own expense any claim brought against you alleging that the normal use of the Services infringes a patent or copyright belonging to a third party (“Intellectual Property Claim”) and Evolve shall pay all damages awarded or agreed to be paid to any third party in settlement of an Intellectual Property Claim provided that you:
a) promptly furnish Evolve with written notice of the Intellectual Property Claim upon becoming aware of the same;
b) make no admissions or settlements without Evolve’s prior written consent;
c) act in accordance with Evolve’s reasonable instructions and provide Evolve with reasonable assistance in respect of the Intellectual Property Claim; and
d) give to Evolve the sole authority to defend or settle the Intellectual Property Claim.
10.5 If the Services become, or in Evolve’s opinion is likely to become, the subject of an Intellectual Property 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 they become 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 Intellectual Property Claim.

11 LIMITATION OF LIABILITY

11.1 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, or for loss of: profits, goodwill, business opportunity, data or back-ups, 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.
11.2 Subject always to clause 10.1 above, Evolve’s entire liability in respect of any one act of default shall be limited to financial compensation up to 125% of the total Monthly Fees paid by the Customer in the immediately preceding 12 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.
11.3 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.

12 CONFIDENTIALITY

12.1 Confidential Information shall be defined as any information (whether oral, written or electronic form) belonging or relating to a party’s business affairs or activities and which: (i) has been marked as confidential or proprietary, (ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.
12.2 Each party undertakes that for a period of five years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under this Agreement or any Statement of Work. In any event each party hereby agrees that it will treat the other’s Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of this Agreement or any Statement of Work, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this Clause 12.
12.3 The provisions of Clause 12.2 shall not apply to: (a) any information in the public domain otherwise than by breach of this Agreement; (b) information lawfully in the possession of the receiving party thereof before disclosure thereof by the disclosing party; (c) information obtained without restriction from a third party; and (d) information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permissible by law.
12.4 If this Agreement is terminated, each party shall, at the other party’s option, return or destroy all Confidential Information of the other party.

13 NON-SOLICITATION

13.1 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 or employ or engage (or facilitate the employment or engagement of) any Evolve Technician or any person employed or engaged by Evolve in the provision of the Services, and who could materially damage Evolve’s interests if they were involved in any capacity in any business concern which competes with the business of Evolve, at any time during the term of this Agreement or for a further period of 12 months after the termination of this Agreement.
13.2 If the Customer commits any breach of Clause 13.1 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.
13.3 Except with the prior written consent of the Customer, Evolve 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 the Customer or employ or engage (or facilitate the employment or engagement of) any Customer Technician or any person employed or engaged by the Customer, and who could materially damage the Customer’s interests if they were involved in any capacity in any business concern which competes with the business of the Customer, at any time during the term of this Agreement or for a further period of 12 months after the termination of this Agreement.
13.4 If Evolve commits any breach of Clause 13.3 Evolve shall, on demand, pay to the Customer a sum equal to 40% of one year’s basic salary or 40% of the annual fee that was payable by the Customer to that employee, worker or independent contractor plus the recruitment costs incurred by the Customer in replacing such person.

14 ENTIRE AGREEMENT, WAIVER AND THIRD PARTY RIGHTS

14.1 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.
14.2 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.
14.3 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.
14.4 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.
14.5 Headings are included for convenience only and shall not affect the interpretation of the Agreement.
14.6 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.
14.7 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.
14.8 Any clause expressly or impliedly intended to be in effect after the termination or expiration of this Agreement shall remain so. The parties expressly agree that the following clauses shall continue after termination or expiry of this Agreement: 1, 3.2, 9, 10, 11, 12, 13, 14, 16, 17, and 19.

15 FORCE MAJEURE

15.1 “Event of Force Majeure” means, in relation to party, an event or circumstance beyond the reasonable control of that party (the “Claiming Party”).
15.2 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:
15.2.1. 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
15.2.2. 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.
15.3 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.
15.4 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.

16 NOTICES

16.1 Save for Helpdesk 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 AND DISPUTES

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.
17.2 In the event of any dispute arising under this Agreement the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed by the parties, the mediator will be appointed by CEDR. No party may commence court proceedings in respect of any dispute arising out of this Agreement, save where such dispute is solely in relation to the non-payment of sums due from one party to the other under this Agreement, until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

18 SERVICE LEVEL AGREEMENT

18.1 Evolve shall use its reasonable endeavours to respond to Issues as raised by the Customer as defined in the following table, provided that Customer has properly reported the Issue to Evolve and complied with the terms of this Agreement. As set out in Clause 4.2, no guarantees can or will be given by Evolve regarding the length of time required for resolving Issues.

Importance For example Phone/Remote

Response

On-site Response Resolution Target
Critical Customer business operations are blocked, or serious security breach has occurred 1 hour 6 hours 1 business day
High Customer business operations are seriously impacted or partly blocked 1 hour Next business day 3 business days
Medium An individual user is impacted 1 hour 3 business days 5 business days
Additional Work Work not included in the Service Plan e.g. new PCs and laptops 1 day 1 week 2 weeks

18.2 The Customer should refer to the Service Specific Terms for any additional terms and exclusions applicable to Evolve’s Services.
18.3 The importance of Issues as shown in the above table will be categorised by Evolve in its reasonable opinion at the time an Issue is reported. Evolve may subsequently change the importance category of an Issue with the Customer’s consent provided that such consent is not unreasonably withheld or delayed.
18.4 All response and resolution times are measured in Standard Business Hours.
18.5 Response and Resolution times will be tracked by Evolve and can be reported upon on request.
18.6 Resolution Target is the time taken to resolve the Issue or implement a reasonable workaround.
18.7 Response to Issue is defined by acknowledging receipt of the Service Request.
18.8 The Helpdesk will be the primary contact point for Customer staff to report and discuss progress of an Issue. However, designated Contacts at the Customer can discuss progress of Issue with management at Evolve at any time.
18.9 On reporting an Issue the Customer must clearly identify to Evolve if it believes an Issue to be Critical.

19 DEFINITIONS

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 “Agreement” means the Order Form, Service Specific Terms and these General Framework Terms together with any annexed amendment agreed in writing.
19.3 “Application” means a software solution, other than the Primary Collaboration Environment, used by the Customer to conduct their business and that is provided by a third party, for example, Sage or Xero accounting software.
19.4 “Application Report” means details of Applications 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.
19.5 “Asset List” shall mean the items on the Initial Asset List as on the Order Form as amended subject to these General Framework Terms.
19.6 “Authorised Software List” means the list of applications that have been approved by the Customer for their own use
19.7 “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, network attached storage, USB stick.
19.8 “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.
19.9 “BCDR Device” means any hardware devices to be used with the Business Continuity Plan and which you acquire separately from Evolve.
19.10 “Benchwork” means time spent by an Evolve Technician working directly on client equipment that has been shipped to the workshop of Evolve.
19.11 “Bespoke User Management” is needed where the setup, change and deletion of user access to the Customer System is complex and unusual.
19.12 “Change” means a modification that is material or otherwise that alters the hardware or software configuration of the System defined in the Agreement.
19.13 “Complex Restore” means the recovery of email databases, application databases, Third-Party applications.
19.14 “Customer” is defined on the Order Form.
19.15 “Customer Equipment” means all items of computer hardware and software that form part of the System.
19.16 “Customer Site” means the Site or Sites specified in the Agreement at which the Customer operates the System defined in the Agreement.
19.17 “Daily Backup Check” means the daily check by an Evolve Technician of the Customer’s backup jobs listed in the Backup Report.
19.18 “Declared Date” means the date that Evolve and the Customer agree to invoke the Disaster Recovery Environment.
19.19 “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.
19.20 “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.
19.21 “Disaster Recovery Environment” means all servers included in the plan recovered to the BCDR Device or to the Cloud Storage.
19.22 “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.
19.23 “Evolve” means Evolve Computers Limited.
19.24 “Evolve Technician” means any technical staff of Evolve assigned to provide the Services to the Customer.
19.25 “Hardware” means any Third Party hardware equipment that Evolve supplies to the Customer.
19.26 “Health Check” means the work done by Evolve to validate the health of an item.
19.27 “Helpdesk Request” means requests received by the Helpdesk from a Customer either by email to support@evolvehelp.com, or by telephone to 020 8939 8480 in respect of an item listed in the Asset List at the relevant time.
19.28 “Helpdesk System” means the Evolve Helpdesk and Monitoring System.
19.29 “Initial Asset List” is defined on the Order Form.
19.30 “Initial Term” is defined on the Order Form.
19.31 “Issue” means any event giving rise to the request or provision of the Services and all the actions associated with it.
19.32 “Item Activation Fee” is defined on the Order Form.
19.33 “Maintenance Hours” is defined on the Order Form.
19.34 “Monthly Fee” means the monthly subscription fee calculated from the Asset List on a monthly basis.
19.35 “Onsite Support” means the provision of Services by Evolve at a Customer Site.
19.36 “Order Form” means the document signed by the Customer forming part of the Agreement.
19.37 “PCE Matrix” means the table of options available in the Primary Collaboration Environment for which Evolve will provide configuration and support services.
19.38 “Pre-Pay Hours” means man-hours purchased in advance at the rate defined on the Order Form.
19.39 “Primary Collaboration Environment” is defined on the Order Form.
19.40 “Primary Device” the Initial Asset List as on the Order Form.
19.41 “Project Work” means the work required to deliver a project as outlined in a quotation or proposal.
19.42 “Remote Support” means the provision of the Services by Evolve at a site that is remote from the Customer Site.
19.43 “Response Time” means the time taken by Evolve to respond to an Issue from the point at which it is reported.
19.44 “Risk Register” means the list of items in respect of which support is given pursuant to Clause 3.8 above.
19.45 “Service Catalogue” means the list of existing products and services provided by Evolve.
19.46 “Service Exception” means an item subject to the process as defined in Clause 4.10 above.
19.47 “Service Level Agreement” or “SLA” means the details of how Issues will be processed by Evolve.
19.48 “Service Plan” means the name of the selected group of services provided by Evolve. It is selected on the Order Form and defined in the Service Specific Terms
19.49 “Service Response” means when an Evolve Technician has made contact with the Customer staff member, by phone, email or has left a message for them.
19.50 “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.
19.51 “Service Specific Terms” means the details of the Services to be carried out and any additional terms and conditions that apply to those Services.
19.52 “Standard Business Hours” means the hours defined in the Order Form.
19.53 “Standard Hourly Rate” means the rate defined in the Order Form.
19.54 “Start Date” means the start date of the Services, as specified on the Order Form.
19.55 “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.
19.56 “System Activation” means the process to bring a new Customer’s system on-board as outlined in the Service Specific Terms.
19.57 “System Audit” means the process of checking a new Customer’s system as outlined in the Service Specific Terms
19.58 “System Configuration” means the process of changing the Customer’s system as outlined in the Service Specific Terms
19.59 “Third Party” means any party other than the Customer and Evolve and its Evolve Technicians.
19.60 “Ticket Alerts” means any tickets automatically created within the Helpdesk System which notify Evolve of problems on the Customer’s System.
19.61 “Total Monthly Fee” means the monthly fee payable calculated at the rates specified in the Order Form.
19.62 “Web Filtering Checks” means the monthly reports provided by Evolve to the customer.
19.63 “Web Protection Checks” means the monthly reports provided by Evolve to the customer.