1.1. Prior to the commencement of the Services, a Technical Audit will be performed.
1.2. The Client accepts responsibility for the status of the System prior to the involvement of Evolve.
1.3. Any deficiencies found during the Technical Audit will be noted in a report. A copy of the report will be given to the Client. The report will provide recommendations to correct and/or improve the deficiencies and detail the costs of effecting such recommendations. The Client is under no obligation to commission Evolve to implement the recommendations set out in the report and/or proposal.
1.4. If the Client does not commission Evolve to implement the recommendations set out in the report and/or proposal, Evolve shall be under no obligation to supply the Services. If Evolve agree to supply the Services, Evolve may place any item they chose at their total discretion on the Risk Register.
2.1. Prior to the commencement of the Services, a System Activation will be carried out.
2.2. An Evolve Technician will visit the Client Site to perform the System Activation process. The Evolve Technician will need access to all machines to be covered by this Agreement and included within the Asset List.
2.3. Evolve will communicate the process and the extent of possible disruption to DC before the visit and it is the responsibility of the DC to ensure that this information is disseminated within the Clients organisation prior to the visit.
2.4. If any additional visits to the Client Site are necessary because the Evolve Technician was unable to access machines as a result of the Client not allowing or providing access, Evolve reserves the right to charge for that visit on an hourly basis at the Standard Hourly Rate, as modified pursuant to the terms of this Agreement; or, where a quote has been provided, at the rates specified in the quote.
2.5. The Evolve Technician will make Changes to each machine to be included within the Asset List including, but not limited to: sticking on a security asset label; installing the Evolve monitoring agent; renaming PCs.
2.6. Changes made by the Evolve Technician during System Activation may result in disruption for the Client and to the System during and after the visit. Any problems as a result of the System Activation will be resolved within the terms of this Agreement.
2.7. The DC will be required to sign-off the System Activation process to confirm the Initial Asset List.
2.8. The parties shall by mutual agreement in writing or by email amend the Asset List from time to time subject to the terms of this Agreement. Any modifications to the Asset List will be recorded.
2.9. Modifications to the Asset List are subject to the fees and timescales as set out in this Agreement.
2.10. After the initial System Activation all additions, replacement and removal of items from the Asset List will be done remotely by an Evolve Technician.
2.11. If during the Activation of any machine the Evolve Technician discovers deficiencies with the machine the Evolve Technician will provide recommendations to correct and/or improve the deficiencies and detail the costs of effecting such Additional Work. The Client is under no obligation to commission Evolve to implement the recommendations. If the DC does not approve the Additional Work, Evolve shall be under no obligation to do the Additional Work. The failing item will be placed on the Risk Register.
3.1. The Monthly Fees for the Services will be calculated based upon the rate as appears in the Plan Schedule, the number of sites, servers and workstations, as detailed in the Asset List at the relevant time, along with any other relevant factors or specific requirements the Client may have.
3.2. The minimum Monthly Fee is £250 ex VAT per month.
3.3. The Monthly Fees are payable monthly by Direct Debit in advance on the 1 st of the month. If the client cancels the Direct Debit within the term of this Agreement then Evolve reserves the right to stop providing the Services with immediate effect. Reinstatement of a Direct Debit cancelled within the term of this Agreement will cost £50. Evolve will charge £50 for each Direct Debit payment returned for any reason.
3.4. During the Initial Term items can be added and replaced within the Asset List upon payment of the Item Activation Fee as detailed in the Plan Schedule.
3.5. After the Initial Term, items can be added, replaced or removed from the Asset List upon payment of the Item Activation Fee as detailed in the Plan Schedule.
3.6. The Asset List will be updated monthly and will be used to calculate the Monthly Fee subscription to take into account any Changes made pursuant to clause 3.4 and 3.5 above.
3.7. Plans can be upgraded from Basic to Standard and from Standard to Professional at any time. A new Plan Schedule will be produced by Evolve and the total Monthly Fee will be recalculated at the rates specified therein.
3.8. If a Client wishes to downgrade a plan, the Client must give 2 month’s notice in writing to Evolve. The plan will renew for an additional Initial Term of at least 12 months and there will be a one-off damages charge calculated by Evolve at their discretion.
3.9. Additional Work will be charged at the Additional Work Rate and will be invoiced to the Client in addition to the Monthly Fee and will be payable within 28 days from the date of the invoice by Direct Debit.
3.10. The Standard Hourly Rate (SHR) applicable shall be charged at the rate set out in the Plan Schedule. This applies to work undertaken between Mondays to Friday within the hours of 8am to 8pm. Any Additional Work done outside these hours shall be provided entirely at the discretion of Evolve but will be chargeable at the following rates:
3.11. Remote support time is charged in 15 minute blocks with a minimum of 15 minutes.
3.12. Onsite support time is charged in 1 hour blocks with a minimum of 4 hours.
3.13. Where a technician is already onsite then time will be charged in 1 hour blocks with a minimum of 2 hours.
3.14. Should Evolve deem that a more or less experienced Evolve Technician is required to undertake any Additional Work, Evolve shall be entitled in their absolute discretion to vary the rates changed.
3.15. The fees and rates covered by this Agreement will be reviewed every 12 months.
3.16. When the charges levied change pursuant to 3.15, 30 days notice will be provided by Evolve to the Client in writing and via email to the DC.
3.17. If the Client wishes to terminate the Agreement as a result of the increased charges it may do so in accordance with the termination procedure stated in Clause 9 below.
3.18. When a payment from a Client is declined for any reason, Evolve retain the right to charge interest on the amount owed at the rate of 10% above the business interest rate of Barclay’s Bank as well as charging an administration fee for reclaiming the amount owed from the Client.
3.19. 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.
4.1. The Benchwork Hourly Rate is chargeable for Additional Work carried out on Client Equipment that has been delivered to Evolve’s workshop.
4.2. Evolve will not be responsible for any Client Equipment while in transit to and from the workshop. The cost of delivery of any Client Equipment will be chargeable or the Client can make their own arrangements to have equipment delivered and collected.
4.3. Whilst in Evolve’s workshop or offices Client 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 Client Equipment any excesses payable will be passed on to the Client. It is the responsibility of the Client to ensure that data is backed up from their equipment before it is shipped to Evolve.
4.4. For Benchwork that requires a system repair, rebuild or reinstallation it is the responsibility of the Client 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 Client. 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 Client Equipment.
5.1. In consideration of payments made by the Client, Evolve will provide the Services (Basic, Standard or Professional as appropriate and applicable) at the level chosen by the Client and as set out in the Schedule, for the Asset List at the relevant time.
5.2. No guarantees can or will be given by Evolve regarding the length of time required for resolving Incidents.
5.3. Evolve shall allocate Evolve Technicians to Incidents and actions within Incidents as they see fit, depending on the skills, experience and availability of Evolve Technicians.
5.4. Evolve warrant that the Services will be delivered as set out in the Agreement in a professional and workmanlike manner with reasonable skill and care in reasonable time accordance with generally accepted industry standards.
5.5. Evolve warrant that it will have and maintain the necessary technical skills and knowledge to provide the Services.
5.6. Evolve agrees and accepts that it shall have no authority to commit the Client to any legally binding commitments or contracts.
5.7. Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the performance by Evolve of the Services below are hereby excluded and, without limitation to the generality of the forgoing:-
5.7.1. Evolve do not warrant that the operation of the System will be uninterrupted or error free over any specified period of time.
5.7.2. Evolve do not warrant the performance of any Third Party, including quality or accuracy of advice and support received from Third Parties.
5.8. Evolve shall maintain a Risk Register. Support of any item on the Risk Register will be on a ‘reasonable endeavours’ basis and Evolve reserve the right to charge for time or refuse to support any item on the Risk Register at any time. Items which can be included on the Risk Register are, including but not limited to:-
6.1. The Client will be required to provide confirmation of all software licensing applicable to the System either at the commencement of the Agreement or as required by Evolve during the Agreement.
6.2. The Client must inform Evolve of any Incidents as soon as is practically possible.
6.3. The Client must ensure that any machine connected to the network, at any of their sites and included on the Risk Register and/or not included in the Asset List and/or not covered by this Agreement, is virus and malware free. If such a machine causes an Incident that requires work by Evolve then Evolve reserves the right to charge for such work as Additional Work.
6.4. The Client retains overall responsibility for the System.
6.5. Any Changes made to the System by the Client or a third party whether instructed by the Client or not, must be approved in principle by Evolve prior to being implemented. However, such Changes will only be covered by the Agreement once approved by Evolve upon completion of the implementation. The time taken by Evolve Technicians to approve such Changes will be chargeable as Additional Work. If such work results in an Incident that requires work by Evolve then Evolve reserves the right to charge for such work as Additional Work.
6.6. Evolve will require Administrator-level access to the System at all times.
6.7. The Client 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 Client to ensure the identity and bona fides of any engineer or other person requiring access to the Clients premises in connection with the Agreement.
6.8. The Client shall take all reasonable precautions to protect the health and safety of Evolves employees, agents and sub-contractors while on the Clients premises.
6.9. The Client shall make available the System and supply all documentation and other information as required by Evolve.
7.1. The Client accepts that computers, software and their associated products can be supplied in an imperfect state or can develop faults over time. The role of Evolve is to reduce the effects of such imperfections rather than to eliminate them.
7.2. Evolve may, in their complete discretion, exclude Third Party software from the scope of the Agreement.
7.3. 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.
7.4. Evolve do not guarantee having expertise for all Third Party software and cannot guarantee being able to resolve all Incidents relating to Third Party software logged.
7.5. When Third Party information or services are provided Evolve can make no guarantees about quality or suitability.
7.6. Evolve give no guarantee that any Third Party software including but not limited to Anti Virus, security and firewall software, whether or not recommended by Evolve will keep computer(s) free of errors, viruses, worms, trojans, email spam, spy ware, hacking or any other unauthorised access.
7.7. Evolve shall not be liable if they are unable to provide Remote Support due to a lack of remote access to the System, when the lack of remote access results from a problem with connectivity that is beyond Evolves control.
7.8. Evolve shall, at their complete discretion, decide the appropriate course of action for each Incident and will follow the necessary troubleshooting steps in order to diagnose and then rectify the Incident.
7.9. Depending upon the nature of the Incident, Evolve may have to impose a workaround to rectify the Incident as opposed to a fix.
7.10. 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.
7.11. Evolve reserves the right to not install, configure or support any software for which the Client cannot provide / produce a valid license.
7.12. For the avoidance of doubt matters which are specifically excluded within the scope of the Services are set out in section B in respect of the applicable Plan. Evolve are not obliged to undertake any of those matters but, in the complete discretion of Evolve, Evolve may agree to assist the Client in respect of those matters if it is appropriate.
7.13. Evolve are not obliged to provide the Services for issues that do not relate to the System and if they do undertake work Evolve shall be entitled to charge for such work as Additional Work.
8.1. In the event of a complaint in respect of the service in whole or part, the Client shall notify Evolve as soon as possible.
8.2. When a Client needs to raise a complaint, the complaint should be lodged with the Support Manager verbally, in writing or by email. The Support Manager will then investigate the complaint to resolve the issue or provide a full explanation of the actions / issues that resulted in the complaint.
8.3. If the Support Manager is unable to satisfactorily resolve the complaint / issue in question, it will be escalated to a director at Evolve.
8.4. If Evolve fail to resolve the Clients complaint in a reasonable and or timely fashion, the Client may exercise its right to terminate the Agreement as outlined in section 9 below.
9.1. The Agreement will be for an Initial Term of 12 months and shall continue thereafter until terminated by either party giving the other 60 days notice in writing.
9.2. If the Client wishes the Services to be ceased either during the Initial Term of 12 months or thereafter within the 60 day notice period, the full charges remaining payable for the remainder of the Initial Term or the remainder of the 60 day notice period will be payable in full by the Client.
9.3. Evolve shall be entitled to terminate the Agreement or any aspect of it at any time if the Client becomes the subject of a receivership, winding up, administration or bankruptcy order (or a petition is presented in respect of any of these) or, if it otherwise appears to Evolve that the Client is insolvent and unable to pay its debts as they fall due.
9.4. Evolve shall be entitled to terminate the Agreement in the event that the Client commits a material breach of the Agreement including failing to make payment when due and fails to remedy the breach within 30 days of receipt of written notice from Evolve.
9.5. Any termination shall be without prejudice to Evolve’s other rights or to the Clients liability for amounts payable under the Agreement.
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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.
10.5. The obligations set out in this clause shall remain in force not withstanding termination of this Agreement.
10.6. 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.
10.7. 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.
10.8. 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.
11.1. The System shall remain the property of the Client 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.
11.2. Any System documentation created under the terms of the Agreement is the property of the Client. This will be provided to the Client upon request as long as the Client’s account is up to date with no invoices being disputed.
11.3. The knowledge and expertise that Evolve posses in order to perform Services as required/requested by the Client will inherently remain vested in Evolve and the Evolve Technician in question.
12.1. Evolve shall not be responsible for the loss of Client data.
12.2. Evolve will assist the Client in instigating a suitable backup schedule, however, the Client is responsible for ensuring the appropriate backups are completed and that tapes are taken off site or otherwise secured appropriately. It is the Clients responsibility to change backup tapes.
12.3. Except in respect of death or personal injury caused by Evolve’s negligence, or as expressly provided in these Terms, Evolve will not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for loss of profits, goodwill, business opportunity, data or revenue, loss or damage suffered by the Client 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 Client incurring the same. This includes but is not limited to any loss incurred due to virus infection in the System.
12.4. Subject always to clause 12.3 above, Evolve’s entire liability in respect of any one act of default shall be limited to financial compensation up to 50% of the total Monthly Fees paid by the Client 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.
13.1. Each party undertakes to the other to treat all information (in any form) exchanged in relation to the Agreement as confidential for the period of the Agreement and beyond.
NON-SOLICITATION
14.1 Except with the prior written consent of Evolve, the Client shall not (and shall procure that any sub-client, if appropriate, shall not) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment /engagement of Evolve, any Evolve Technician or any person employed or engaged by Evolve in the provision of the Services at any time during the term of this Agreement or for a further period of 6 months after the termination of this Agreement.
14.2 If the Client commits any breach of Clause 14.1 the Client 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.
15.1. This Agreement supersedes all prior Agreements made between Evolve and the Client for the provision of the Services and constitutes the entire Agreement between the parties relating to the Services.
15.2. 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.
15.3. 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.
15.4. This Agreement shall remain in full force as if the deleted term, clause or condition had not been included, Evolve and the Client will negotiate, in good faith, alternative terms, clauses or conditions to those deleted that are mutually acceptable to both parties.
15.5. Headings are included for convenience only and shall not affect the interpretation of the Agreement.
15.6. 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.
15.7. 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.
16.1. “Event of Force Majeure” means, in relation to party, an event or circumstance beyond the reasonable control of that party (the “Claiming Party”).
16.2. 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:
16.2.1. 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
16.2.2. 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.
16.3. 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.
16.4. 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.
17.1. Save for Service Requests, any notice given under the Agreement by the Client to Evolve shall be provided to Evolve in writing by the Designated Contact at Evolve Computers, 30-36 Fife Road, Kingston, Surrey KT1 1SY.
17.2. Evolve may change its contact details from time to time if required, by the provision of written notice to the Client.
17.3. Any notice given under the Agreement by Evolve to the Client shall be provided to the Client in writing by post or fax at the address of for the Client stated in the Agreement.
18.1. 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.
19.1. Save in so far as otherwise expressly provided all amounts stated in this agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made below shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefore.
The following definitions shall apply unless the terms have been defined elsewhere in this Agreement:
20.1. Additional Work means work not included within the Total Monthly fee and chargeable as per clause 3.9.
20.2. Additional Work Rate shall mean an hourly basis at the Standard Hourly Rate or, if the Additional Work is Benchwork, the Benchwork Hourly Rate, as listed in the Schedule, and modified by the rates in Clause 3 Section C; or, where a quote has been provided, at the rates specified in the quote.
20.3. Agreement means the Plan Schedule and these Terms and Conditions (Sections A-C) together with any amendment agreed in writing and annexed hereto.
20.4. Asset List shall mean the items on the Initial Asset List as in the Plan Schedule as amended subject to the Terms and Conditions in Section C and which asset list appears on the Client Access Portal.
20.5. Benchwork means time spent by an Evolve Technician working directly on client equipment that has been shipped to the workshop of Evolve.
20.6. Change(s) means a modification that is material or otherwise that alters the hardware or software configuration of the System defined in the Agreement.
20.7. Client Access Portal means the Evolve Service Desk website that can be accessed by the Client after being given the appropriate password and access information provided by Evolve.
20.8. Client Equipment means all items of computer hardware and software that form part of the System.
20.9. Client Site means the Site or Sites specified in the Agreement at which the Client operates the System defined in the Agreement.
20.10. Critical Ticket List means the list of Service Request types that are considered in the sole discretion of Evolve as critical are defined on the Critical Ticket List available through the Client Access Portal.
20.11. Designated Contact (‘DC’) means the person nominated by the Client to act as its main representative. The DC is named in the Agreement and will receive official notices, important information and formal notices regarding the Services and the Agreement.
20.12. Evolve Technician means any technical staff of Evolve assigned to provide the Services to the Client.
20.13. Incident means any event giving rise to the request or provision of the Services and all the actions associated with it.
20.14. Monitoring Checklist means the document listing items to be checked by the monitoring system which can be amended from time to time at the discretion of Evolve and which is available on the Client Access Portal.
20.15. On Site Support means the provision of Support services by Evolve at the Client Site.
20.16. Remote Support means the provision of the Services by Evolve at a site that is remote from the Client Site.
20.17. Response Time means the time taken by Evolve to respond to an Incident from the point at which it is reported.
20.18. Risk Register means the list of items in respect of which support is given pursuant to Clause 5.8 of section C.
20.19. Service Desk System means the Evolve Service Desk and Monitoring System.
20.20. Service Request means requests received by the Service Desk from a Client either by email, telephone, through the website or raised directly in the Client Access Portal in respect of each PC and Server or other item listed in the Asset List as appears on the Client Access Portal at the relevant time.
20.21. Service Response means when an Evolve Technician has spoken to the DC, has left a message for the DC to call back or has sent an email to the DC (whichever is appropriate in the reasonable opinion of the Evolve Technician) in response to a Service Request made by the DC.
20.22. Services means the services to be carried out under the Plan Schedule and as described in section B together with any Additional Work which Evolve has agreed to carry out for the Client.
20.23. Standard Business Hours means the hours defined in the Plan Schedule.
20.24. System means the software, server(s), network or other item that comprises the Clients 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.
20.25. Third Party means any party other than the Client and Evolve and its Evolve Technicians.
20.26. Ticket Alerts means any tickets automatically created within the Service Desk System which notify Evolve of problems on the Client’s System.
20.27. Total Monthly Fee means the monthly fee payable calculated at the rates specified in the Plan Schedule.