CAREFULLY READ THESE TERMS AND CONDITIONS, AS THEY FORM A BINDING LEGAL AGREEMENT BETWEEN YOU AND EVOLVE COMPUTERS LTD. ONLY AN AUTHORISED REPRESENTATIVE OF YOUR COMPANY MAY EXECUTE THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, CLOSE YOUR BROWSER AND DO NOT PROCEED WITH USING THE SERVICES.
By signing the Schedule as described with Section 12 hereof – You agree to be bound by all of the terms and conditions of (i) this Master Service Agreement with Evolve Computers Ltd. and (ii) the following:
If You do not agree to any term of this Agreement, then You (i) must not sign the Schedule and (ii) do not have Evolve Computers’ permission to use the Services.
If you are an individual entering into this Agreement on behalf of an Entity (defined below), you represent and warrant that you have the authority to bind such Entity to this Agreement. If you do not have such authority, neither you nor such Entity may accept this Agreement or use the Services.
For the purposes of this Master Service Agreement, the following definitions apply:
“Access Information” means information that alone or together with other information, can provide access to any portion of Your Account, including but not limited to Your Account number, login names, passwords, credit card or other financial information, security questions and their respective answers, and any other similar information. For the avoidance of doubt, Your Access Information will include any similar information for each of Your Users.
“Account” means the account created with Evolve Computers in connection with this Agreement that relates to Your purchase or subscription to and use of Services by You and Your Users.
“Applicable Law” means any applicable foreign, federal, state or other laws, rules, regulations or interpretations of relevant Governmental Authorities.
“Beta Offerings” means any portion of the Services offered on a “beta” basis, as designated by Evolve Computers, including but not limited to products, plans, services and platforms.
“Data” means all data submitted by Your Users to Evolve Computers in connection with the Services, including all content, material, IP and similar addresses, recordings, messages, software, Account Information and Account related settings.
“Entity” means a company, corporation, partnership, association, trust, unincorporated organisation, government or political subdivision or any other legal entity.
“Governmental Authority” means a government, regulatory organisation, self-regulatory organisation, court of competent jurisdiction or similar body.
“Evolve Computers“ means Evolve Computers Ltd., a company registered in England with company
number 03150177 and whose registered office is at 45 High Street, Hampton wick, Surrey KT2 5AA, United Kingdom.
“Services” means Evolve Computers’ hosting and/or other services, software and products, as 2200such services, software and products are offered by Evolve Computers from time to-time in its discretion and subscribed to or purchased by You through Evolve Computers’ website or otherwise, or as otherwise used by You.
“Third-Party Service” means any service or product offered by a party that is not Evolve Computers.
“User” means any of Your employees, consultants or independent contractors to whom You grant permission to
access the Services in accordance with Evolve Computers ‘entitlements procedures and this Agreement.
“You” and “Your” means the individual or Entity on whose behalf this Agreement is accepted.
1.1. Access to Services. Subject to and in accordance with the terms of this Agreement, Evolve Computers grants You a non-exclusive, non-sub licensable, non-transferable, non-assignable, revocable licence for the term of this Agreement to access and use the Services only by Your Users for internal business purposes only. You agree to comply with the terms and conditions of this Agreement and with all applicable Evolve Computers procedures and policies that further define use of the Services. You acknowledge and agree that the actions of any of Your Users with respect to the Services will be deemed to be actions by You and that any breach by
any of Your Users of the terms of this Agreement will be deemed to be a breach by You.
1.2. Account Information and Ownership. You agree to maintain accurate Account information by providing updates to Evolve Computers promptly, but no later than five (5) business days, when any of Your Account information requires change, including any relevant Account contact information. Failure by You, for any reason, to respond within five (5) business days to any inquiries made by Evolve Computers to determine the validity of information provided by You will constitute a material breach of this Agreement. You acknowledge and agree, and expressly consent, that in the event of any dispute regarding access to or legal ownership of any Evolve Computers account or any portion thereof, including Your Account, Evolve Computers will resolve such dispute in its sole discretion. In addition, in the event of such a dispute, Evolve Computers may immediately suspend, alter or terminate any relevant account, including Your Account, or any portion thereof. You will reimburse Evolve Computers for any legal and other fees incurred with respect to any dispute regarding control or ownership of Your Account or Your Data or the same of another Evolve Computers customer. You acknowledge and agree that (i) the legal owner of all Data on the Account is You, the counterparty to this Agreement, and not any individual User, including any Account contact registered with Evolve Computers, regardless of any administrative designation (e.g., “Administrator,” “Billing Contact,” “Owner,” etc.) and (ii) Evolve Computers may request any documentation it requires to establish ownership and rights to Your Account and any related Data; provided that any User with an administrative designation has the authority to bind You to any amendments, modifications or acknowledgements regarding this Agreement or otherwise relating to the Services.
1.3. Account Security and Activity. You acknowledge and agree that You are solely responsible for (i) maintaining the confidentiality and security of Your Access Information, and (ii) all activities that occur in connection with Your Account, whether initiated by You, by others on Your behalf or by any other means. You will notify Evolve Computers immediately of any unauthorised use of Your Account, Access Information or any other actual or potential breach of security. You acknowledge and agree that Evolve Computers will not be liable for any loss that You may incur as a result of any party using Your Access Information, either with or without Your knowledge and/or authorisation. You further agree that You may be held liable for losses incurred by Evolve Computers, any Evolve Computers Party or another party due to any party using Your Access Information. Evolve Computers strongly recommends that You keep Your Access Information in a secure location, take precautions to prevent others from accessing it and change it when necessary to maintain its confidentiality and security. Evolve Computers specifically disclaims all liability for any activity in Your Account, whether authorised by You or not.
2.1. Term. The Agreement term is either the Initial Term or Renewal Term (each, a “Term”) as defined herein.
(a) Monthly Plan Agreement Term .For a Monthly Plan with Evolve Computers, the Initial Term is the period from the date of Your initial payment or acceptance of this Agreement, whichever occurs earlier, through the remainder of that calendar month. A Renewal Term for a Monthly Plan is defined as one calendar month beginning at the end of the Initial Term and each subsequent calendar month thereafter.
(b) 6 Month Extended Plan Agreement Term. For a 6 Month Extended Plan with Evolve Computers, the Initial Term is the period from the date of Your initial payment or acceptance of this Agreement, whichever occurs earlier, through the remainder of that calendar month and continuing through the next six (6) calendar months (for example, a 6 Month Extended Plan that begins on 14th April will continue until 31st October), unless the parties have agreed in writing to a longer term. A Renewal Term for a 6 Month Extended Plan is defined as the six-month period beginning at the end of the Initial Term and each subsequent six-month period thereafter.
(c) 12 Month Extended Plan Agreement Term. For a 12 Month Extended Plan with Evolve Computers, the Initial Term is the period from the date of Your initial payment or acceptance of this Agreement, whichever occurs earlier, through the remainder of that calendar month and continuing through the next twelve (12) calendar months (for example, if it begins on 14th April, it will continue until 30th April of the following year), unless the parties have agreed in writing to a longer term. A Renewal Term for a 12 Month Extended Plan is defined as the twelve-month period beginning at the end of the Initial Term and each subsequent twelve-month period thereafter.
(d) Automatic Renewal. This Agreement will renew automatically at the end of the then-current Term for a Renewal Term unless terminated in accordance with this Agreement by either You or Evolve Computers.
2.2. Termination by You.
(a) Monthly Plan. For a Monthly Plan, You may terminate this Agreement for any reason by writing to Evolve Computers prior to the beginning of any Renewal Term. If You terminate a Monthly Plan prior to the end of the then-current Term, Evolve Computers will not be required to refund to You any fees already paid.
(b) 6 Month Extended Plan or 12 Month Extended Plan (each an “Extended Plan”). For an Extended Plan, if Service Availability (as defined in the SLA) drops below 80% for a period of 2 consecutive months or more and/or if Evolve Computers is not able to restore more than 120 hours of Exchange Data (as defined in the SLA) except when such drop in Service Availability or inability to restore Exchange Data is caused (whether directly or indirectly) by any Force Majeure Event (as defined in Section 14.6 below), then You may terminate this Agreement by writing to Evolve Computers prior to the beginning of any Renewal Term. Evolve Computers will refund (or refrain from charging You) the monthly fees for the month in which you terminate the Services under this Section 2.2(b) and Evolve Computers will not charge You monthly fees for any month following the month in which you terminate the Services under this Section 2.2(b).
2.3. Termination by Evolve Computers.
(a) 15-Day Termination. Evolve Computers may terminate this Agreement for any reason by providing fifteen (15) calendar days notice. If Evolve Computers terminates this Agreement pursuant to this Section 2.3(a), (i) for a Monthly Plan, if the effective termination date occurs prior to the end of the then-current Term, Evolve Computers will refund (or refrain from charging You) the pro rata monthly fees for the month in which Services terminate and (ii) for an Extended Plan, Evolve Computers will refund (or refrain from charging You) the monthly fees for the month in which Services terminate. For either a Monthly Plan or an Extended Plan, if Evolve Computers terminates this Agreement pursuant to this Section 2.3(a), Evolve Computers will not charge You monthly fees for any month following the month in which Evolve Computers terminates this Agreement.
(b) Immediate Termination. Evolve Computers may terminate this Agreement (or suspend Your Account) immediately and without prior notice for any of the following reasons:
(i) Any material breach of this Agreement by You, as determined by Evolve Computers in its sole discretion, including, but not limited to, failure to make any payment when due, violation of the AUP or any other Evolve Computers policy or procedure applicable to the Services as notified to You from time to time;
(ii) If Your use of the Services results in, or is the subject of, actual or potential legal action or threatened legal action, against Evolve Computers or any of its affiliates, vendors, partners, representatives or customers, without consideration for whether such actual or potential legal action or threatened legal action is eventually determined to be with or without merit; and
(iii) Any non-material breach of this Agreement by You which remains uncured beyond ten (10) calendar days from notice by Evolve Computers.
(c) Termination or Suspension of Users. In lieu of terminating or suspending Your entire Account, Evolve Computers may suspend Your Account or terminate or suspend individual Users.
(d) No Refunds; Further Payment Due. If Evolve Computers terminates this Agreement pursuant to Section 2.3(b), (i) Evolve Computers will not refund to You any paid fees and (ii) You will be liable for any payment that would have been due had You terminated pursuant to section 2.2.
2.4. Following Termination. Termination will not cancel or waive any fees owed to Evolve Computers or incurred prior to or upon termination. You agree that Evolve Computers may charge such unpaid balance to Your Account on file or otherwise bill You for such unpaid balance. Upon termination, You must promptly uninstall all software provided by Evolve Computers in connection with the Services. All of Your Data may be irrevocably deleted within fourteen (14) calendar days of termination, including but not limited to, databases, contacts, calendars, e-mail, website content, Exchange Data and any other Data hosted by Evolve Computers. It will be solely Your responsibility to secure all necessary Data from Your Account prior to termination. Evolve Computers will not be responsible or otherwise liable for any loss of Your Data or any damages arising from the deletion of Your Data following termination of the Services.
3.1. Fees. The fees initially charged upon ordering any Service will be effective for the Initial Term and each Renewal Term of this Agreement, provided, that Evolve Computers will have the right to increase these fees at any time upon thirty (30) calendar days notice to You. If You do not agree with such fee increase, You will have the right to terminate this Agreement immediately upon notice, provided, that such notice of termination must be received within thirty (30) calendar days of date of notice of the fee increase. All payments made to Evolve Computers shall be in GBP.
3.2. Billing and Payment Arrangements. Evolve Computers will bill You monthly for all recurring and any applicable one-time fees in that month, including but not limited to interest, cheque paying programme fees and returned cheque fees. Evolve Computers shall make a VAT invoice available to you monthly.
3.3. Payment by Automated Means.
(a) On or about the first day of each month, Evolve Computers will apply the current monthly charges to Your automated payment method. Payment by automated means includes any form of automated payment accepted by Evolve Computers from time-to-time, including credit card, debit card, direct debit or other means.
(b) You must provide Evolve Computers with valid automated payment information as a condition to receive or use the Services. You are responsible for and agree to update Evolve Computers with any changes to Your billing and/or automated payment information (e.g. new or updated credit card, credit card expiration date or other payment account information). By providing Evolve Computers with the automated payment information, You authorise Evolve Computers to charge Your automated payment account for any amounts arising from or relating to the Services without further authorisation from You.It is Your responsibility to keep Your automated payment information up-to-date. If charges to Your automated payment account fail, Evolve Computers will email a warning to Your Account billing contacts and the automated payment will be resubmitted. Reinstatement of a cancelled automated payment within the terms of this agreement will cost £50. Evolve Computers will charge £50 for each automated payment returned for any reason.
(c) If Evolve Computers is unable to successfully process Your payment by automated means by the seventh (7th) calendar day of the month for which the payment is due, then Evolve Computers, without limiting its remedies under this Agreement, may charge You interest on the overdue amount at the rate of 4% per annum above HSBC Bank plc’s base lending rate from time to time. Such interest shall accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You shall pay the interest immediately on demand. Notwithstanding the provisions of this paragraph, Evolve Computers may at its discretion claim in the alternative interest under the Late Payment of Commercial Debts (Interest) Act 1998. You will pay all collection costs incurred by Evolve Computers (including, without limitation, reasonable attorney’s fees).
3.5. Fees for Excess Use. You will monitor and maintain Your Accounts within all Evolve Computers-specified limits and in a manner that does not disrupt the activities of Evolve Computers and other Evolve Computers customers and users. If Your usage exceeds the limits for Your Account or may disrupt the activities of other Evolve Computers customers, You agree that Evolve Computers may immediately, in its sole discretion, (i) charge You for such excess usage via Your automated payment account, (ii) upgrade You to a plan or increase the limits on Your Account to address this excess usage, and/or (iii) suspend Your Account or terminate Your Account upon notice To You. Usage and associated charges for excess usage will be determined based solely upon Evolve Computers’ collected usage information. Unused monthly allotments will not accrue or carry over from one month to any other month. Upon any upgrade or increase on the limits of Your Account, You will be responsible for the new costs and fees.
3.6. Taxes. In addition to Evolve Computers’ charges, You will be liable for all Value Added Tax and (without limitation) all other indirect and sales taxes related to the fees and charges charged to you under this Agreement.
3.7. Fees for Additional Services. You agree to pay Evolve Computers’ then-current rates and expenses, including the cost of Evolve Computers’ vendors, for any requests related to information retrieval, subpoenas, consulting and advisory services or similar work.
3.8. Bill Disputes. You will notify Evolve Computers of any dispute relating to charges billed to Your Account by submitting written notice to Evolve Computers within sixty (60) days of the date the disputed charges appeared on Your Account. The existence of a dispute will not relieve You from paying any and all amounts billed hereunder. You waive all rights to dispute any charges not disputed by written notice as required above.
3.9. Electronic Billing and Documentation. All billing and other documentation regarding the Services may be provided electronically (“Electronic Documentation”). You acknowledge and agree that You are able to view all Electronic Documentation and consent to receiving Electronic Documentation and decline to receive hard copies of any such materials.
4.1. Internal Use. You will use the Services for Your own internal business, non-residential and non-personal use. You acknowledge and agree that You will not allow any third party, including Your vendors and service providers, to access or use the Services.
4.2. Restricted Activities. You will not (A) use any Service for any purpose outside the Service’s intended scope, features, and function set, (B) use any Service for third-party training, (C) use any Service as an application
service provider or service bureau, (D) use any Service for timesharing or rental, (E) use any Service to design software or other materials or services with similar or competitive functionality for any purpose, including distribution to third parties, (F) except with respect to Your Data, duplicate any portion of the Services or display, distribute, publish, or otherwise disclose any Service; (G) use any of the Services to interface with any other service or application that is outside the scope of intended use; (H) decompile, disassemble, or otherwise reverse engineer any portion of the Services; (I) without prior written consent of Evolve Computers, make any modification or interface to any Service that is not specifically authorised by Evolve Computers; and (J) resell or sublicense any portion of the Services, and any purported resale or sublicense will be void. You may not access the Services for purposes of monitoring their performance, availability, or functionality, or for any other benchmarking or competitive purposes, without Evolve Computers’ prior written consent. You may not, without Evolve Computers’ prior written consent, access the Services if You are a direct competitor of Evolve Computers.
4.3. Applicable Law. You acknowledge and agree that access and use of the Services may be restricted or limited as a result of Applicable Laws and that You will not use, or allow the use of the Services in contravention of, and will comply with, any Applicable Law. You represent that (i) You and Your Users are not named on any Government Authority list of persons or entities prohibited from receiving exports, and (ii) You will not permit Users to access or use Services in violation of any export embargo, prohibition or restriction. You acknowledge and agree that that it is Your sole responsibility to use the Services in a lawful manner.
5.1. Submission of Your Data. Any Data You provide to Evolve Computers in connection with the Services must comply with the AUP. Attempting to place or transmit, or requesting placement or transmission, of Data that does not comply with the AUP will be a material breach of this Agreement. Evolve Computers may, in its sole discretion, reject or remove Data that You have used or attempted to use with respect to the Services. Any Data used with respect to the Services by or through You will be free of any and all malicious code, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the Services or Evolve Computers’ servers. You hereby represent and warrant to Evolve Computers that You have the right to use any patented, copyrighted, trademarked, proprietary or other material in connection with Data that You use, post, or otherwise transfer or transmit with respect to the Services.
5.2. Public Disclosure of Data. You are solely responsible for ensuring that You do not accidentally make any private Data publicly available. Any Data made public may be publicly accessible through the internet and may be crawled and indexed by search engines or other third parties. By making any Data publicly available on any of the Services You affirm that You have the consent, authorisation or permission, as the case may be from every person who may claim any rights in such Data to make such Data available in such manner.
5.3. Data Takedown. By making any Data publicly available in the manner aforementioned, You expressly agree that Evolve Computers will have the right to block access to or remove such Data made available by You, if Evolve Computers receives complaints, inquiries or notices concerning any illegality or infringement of rights in such Data. You expressly consent to determination of questions of illegality or infringement of rights in such Data by the agent designated by Evolve Computers for this purpose.
5.4. Filtering. Evolve Computers may employ various filtering methods to reduce unwanted content, such as SPAM e-mail, from reaching Your Evolve Computers Account. You acknowledge and agree that such methods may prevent legitimate content from reaching Your Account and that Evolve Computers will not be liable therefor.
5.5. Control. Evolve Computers is not obligated to exercise control over the content of information, including Your Data, passing through Evolve Computers’ network except any controls expressly provided in this Agreement.
6.1. Confidential Information. “Confidential Information” is all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information will include Your Data. Evolve Computers’ Confidential Information will include the Services (and any portion thereof), the terms and conditions of this Agreement and all related Service order forms, as well as Evolve Computers’ business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Evolve Computers. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as otherwise permitted by this Agreement or in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement.
foregoing use and disclosure.
The SLA does not apply to any Beta Offerings. Notwithstanding anything else set forth in this agreement, Evolve Computers does not make any representations or warranties regarding any Beta Offering or the integrity of any data stored in connection with any Beta Offering. You are strongly discouraged from using any Beta Offering in connection with sensitive data. Evolve Computers may change or terminate any Beta Offering in its sole discretion without notice and does not represent or warrant the result of any such action. Evolve Computers may convert any Beta Offering to a paid service upon notice to You in Evolve Computers’ sole discretion. To avoid incurring increased charges following such a conversion, You must terminate (i) the individual converted service (if possible) by contacting Evolve Computers as directed in the conversion notice, or (ii) if You subscribe to no other services under Your Account, the entire Account, pursuant to section 2 of this Agreement.
8.1. THIS SECTION 8 SETS OUT THE ENTIRE FINANCIAL LIABILITY OF EVOLVE COMPUTERS (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS, CONSULTANTS, SUBCONTRACTORS, PARTNERS, VENDORS AND LICENSORS) TO YOU IN RESPECT OF:
(A) ANY BREACH OF THE CONTRACT;
(B) ANY USE MADE BY YOU OF THE SERVICES, THE DELIVERABLES OR ANY PART OF THEM; AND
(C) ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THE CONTRACT.
8.2. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES THE LIABILITY OF EVOLVE COMPUTERS:
(A) FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE; OR
(B) FOR ANY DAMAGE OR LIABILITYINCURRED BY YOU AS A RESULT OF FRAUD OR FRAUDULENT MISREPRESENTATION BY EVOLVE COMPUTERS.
(C) ANY OTHER LOSS OR LIABILITY WHICH CANNOT BE EXCLUDED BY LAW.
8.3 EVOLVE COMPUTERS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS,
PARTNERS, VENDORS AND LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMISSIBLE IN LAW ALL WARRANTIES, CONDITIONS AND OTHER TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU HEREBY AGREE THAT THE TERMS OF THIS AGREEMENT SHALL NOT BE ALTERED DUE TO CUSTOM OR USAGE OR DUE TO THE PARTIES’ COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER THIS AGREEMENT.
8.4 SUBJECT TO SECTION 8.2:
(A) EVOLVE COMPUTERS SHALL NOT BE LIABLE FOR:
1) LOSS OF PROFITS; OR
2) LOSS OF BUSINESS; OR
3) DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES; OR
4) LOSS OF ANTICIPATED SAVINGS; OR
5) LOSS OF OR CORRUPTION OF DATAOR INFORMATION; OR
6) ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES.
(B) EVOLVE COMPUTERS’ TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR
BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN ANY TWELVE MONTH PERIOD IN CONNECTION WITH THE PERFORMANCE, OR CONTEMPLATED PERFORMANCE, OF THIS CONTRACT SHALL BE LIMITED TO A SUM EQUIVALENT TO THE LOWER OF (1) TEN THOUSAND POUNDS AND (2) THE TOTAL FEES PAID BY YOU IN THE PERIOD OF TWELVE MONTHS ENDING ON THE DATE OF THE FIRST INCIDENT IN SUCH TWELVE MONTH PERIOD GIVING RISE TO A CLAIM, SUBJECT TO THE SERVICE LEVEL AGREEMENT.
8.5 YOU EXPRESSLY AGREE THAT YOUR SOLE REMEDY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE, OR CONTEMPLATED PERFORMANCE, OF THIS CONTRACT OR THE PROVISION OF SERVICES HEREUNDER SHALL BE AGAINST EVOLVE COMPUTERS AND YOU FOREGO ANY RIGHT TO SUE OR OTHERWISE SEEK LEGAL REMEDY AGAINST EVOLVE COMPUTERS’ SUBSIDIARIES, PARENT COMPANY, AFFILIATES, EMPLOYEES, AGENTS, PARTNERS, VENDORS, LICENSORS OR SUB-CONTRACTORS.
8.6 Other Liability. None of the Evolve Computers Parties is responsible to You for any warranty provided by Evolve Computers.
8.7. Third-Party Services. Evolve Computers may link to or offer Third-Party Services on Evolve Computers’ website or otherwise through the Services. Any purchase, enabling or engagement of Third-Party Services, including but not limited to implementation, customisation, consulting services, and any exchange of Data between You and any Third-Party Service, is solely between You and the applicable Third-Party Service provider and is subject to the terms and conditions of such Third-Party Service provider. Evolve Computers does not warrant, endorse or support Third-Party Services and is not responsible or liable for such Services or any losses or issues that result as Your use of such services. If You purchase, enable or engage any Third-Party Service for use in connection with the Services, You acknowledge that Evolve Computers may allow providers of those Third-Party Services to access Your Data used in connection with the Services as required for the interoperation of such Third-Party Services with the Services. You represent and warrant that Your use of any Third-Party Service signifies Your independent consent to the access and use of Your Data by the Third- Party Service provider, and that such consent, use and access is outside of Evolve Computers’ control. Evolve Computers will not be responsible or liable for any disclosure, modification or deletion of Data resulting from any such access by Third- Party Service providers.
9.1. No Transfer. Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to You. All right, title, and interest in any Service provided to You, including without limitation any copyright, trade secret and vested or potential trademark and patent rights, is solely the property of Evolve Computers and its vendors and licensors. As between You and Evolve Computers, all materials distributed by Evolve Computers in connection with the Services will at all times remain the property of Evolve Computers, and upon the request of Evolve Computers or upon termination of this Agreement, You will promptly return any and all such materials.
9.2. Control. Evolve Computers will have sole and complete control over, and reserves the right at any time to make changes to, the configuration, appearance, content and functionality of the Services. In addition, Evolve Computers reserves the right, at any time, without prior notice, to the exercise of its sole discretion to suspend or terminate any Service for the protection of the security and integrity of the Services or other business, technical or financial considerations as determined by Evolve Computers.
9.3. Feedback Licence. Evolve Computers will have a royalty free, worldwide, transferable, sub licensable, irrevocable, perpetual licence to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You and Your Users to Evolve Computers or any Evolve Computers Party.
9.4. Porting. You acknowledge and agree that, as between You and Evolve Computers, any telephone or other access numbers or destination or origination points provided by Evolve Computers in connection with the Services (such as fax service) are the property of Evolve Computers and may not be ported out or otherwise transferred or modified (“Evolve Computers Numbers”). Further, You acknowledge and agree that You will promptly compensate Evolve Computers for any expenses relating to your attempted port of any Evolve Computers Number.
You are responsible for and must provide all hardware, software, services and other components necessary to access and use the Services. Evolve Computers makes no representations, warranties, or assurances that Your hardware, software, services and other components will be compatible with any Service. Evolve Computers reserves the right to change or upgrade any equipment or software that it uses to provide the Services without notice to You. Evolve Computers will install security patches, updates, upgrades and service packs (“Updates”) as it determines in its sole discretion, and reserves the right, but not the obligation, to roll back any Updates. Updates may change system behaviour and functionality and as such may negatively affect the Services used by You. Evolve Computers cannot foresee nor can it be responsible or liable for service disruption or changes in functionality or performance due to Updates. Evolve Computers is not responsible or liable for issues that may arise from incompatibilities between Your Data and use of the Services and any Update or hardware or software change or configuration, regardless of whether discretionary or requested.
You will defend, indemnify, save, and hold Evolve Computers and the Evolve Computers Parties harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against them that may arise or result from Your use of the Services, Your breach of this Agreement, Your negligence or willful misconduct, or any of Your own services or products.
COMMUNICATIONS AND M ODIFICATION OF TERMS .
12.1. How the Contract between us is formed. Your order constitutes an offer to Evolve Computers to buy a Service and Your offer is made under the terms and conditions of this Agreement when you sign the Schedule. All orders are subject to acceptance by Evolve Computers, and Evolve Computers will confirm such acceptance to You by email confirming that the Service has commenced (the “Service Confirmation”). The contract between us under this Agreement (for the purposes of this Section 12, the “Contract”) will only be formed once this Service Confirmation has occurred or once you begin using any Service. The Contract will relate only to those Services whose commencement Evolve Computers has confirmed in the Service Confirmation. Evolve Computers will not be obliged to supply any other Services which may have been part of Your order until the commencement of such Services has been confirmed in a separate Service Confirmation or once You begin using those other Services.
12.2. Written Communications and Notice. Applicable laws require that some of the information or communications Evolve Computers send to you should be in writing. You accept that communication from Evolve Computers will be electronic wherever possible. Evolve Computers will contact You by e-mail or provide you with information by posting notices on our website. For contractual purposes, You agree to this electronic means of communication and You acknowledge that all contracts, notices, information and other communications that Evolve Computers provides to You electronically comply with any legal requirement that such communications be in writing. This condition does not affect Your statutory rights. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email or posting to our website (provided e-mail or posting will not be sufficient for notices of termination or an indemnifiable claim). Notices to You will be addressed to any e-mail address, postal address or facsimile number registered with Evolve Computers. Notices to Evolve Computers that are not expressly authorised by administrative control panel under this Agreement may be mailed to Evolve Computers at its registered address, principal place of business, or such other address as designated on Evolve Computers’ website from time to time
12.3. Modification of Terms. Evolve Computers may update, amend, modify or supplement the terms and conditions of this Agreement from time to time by giving You notice by email. Such changes will take effect not less than 15 (fifteen) calendar days after the day the email is sent unless you give Evolve Computers notice to terminate by following the termination procedure within such 15 (fifteen) calendar day period, in which event Evolve Computers shall refund or not charge You the monthly fees for the month in which Services terminate. Any such modification may be made without the consent of any third party beneficiaries of this Agreement. You can review the most current version of this Agreement at any time at:(https://evolvecomputers.co.uk/terms-and-conditions) .
13.1 Data Protection Definitions. In this Agreement, the following definitions shall apply:
13.2 Designations. Evolve Computers and You acknowledge that for the purposes of the Data Protection Act 1998, You are the Data Controller and Evolve Computers is the Data Processor in respect of any Personal Data.
13.3 Permissions. Evolve Computers shall process the Personal Data only in accordance with Your instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by You.
13.4 Reliability. Evolve Computers shall take reasonable steps to ensure the reliability of any of its employees and subcontractors who have access to the Personal Data.
13.5 Applicable Laws. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
13.6 Measures. Evolve Computers warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
1) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
2) the nature of the data to be protected; including, but not limited to, the following security measures: storing Personal Data on secure servers behind firewalls; restricting access to such servers to authorised personnel only, encrypting credit card details and administrative control panel passwords and only permitting access to such servers through a secure channel; and
(b) take reasonable steps to ensure compliance with those measures.
13.7 Directions. You acknowledge that Evolve Computers is reliant on You for direction as to the extent to which Evolve Computers is entitled to use and process the Personal Data; consequently Evolve Computers will not be liable for any claim brought by a Data Subject arising from any action or omission by Evolve Computers to the extent that such action or omission resulted directly or indirectly from Your instructions.
13.8 Third Party. Evolve Computers may authorise a third party (sub-contractor) to process the Personal Data provided that the sub-contractor’s contract is on terms which provide substantially the same protections as those set out in Sections 13.4, 13.5 and 13.6 of this Agreement.
13.9 Transfer. You acknowledge that Evolve Computers may, pursuant to a sub-contract in accordance with Section 13.8 arrange for the processing of Personal Data to take place outside the European Economic Area and consents to any transfer and processing of data in accordance with such subcontract.
14.1. Governing Law; Jurisdiction; Forum; Attorneys’ Fees. This Agreement will be governed by and construed in accordance with the laws of England and Wales. You submit to the non-exclusive jurisdiction of the English courts.
14.2. Age and Capacity. You hereby represent and warrant that each User has reached the older of (i) the age of
eighteen and (ii) the age of majority in the User’s jurisdiction, and that You are not subject to a limitation on Your ability to enter into this Agreement.
14.3. Severability. If any one or more of the provisions contained herein will, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any of the other provisions of this Agreement, and this Agreement will be construed as if such provision(s) had never been contained herein, provided that such provision(s) will be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
14.4. Waiver. No waiver by Evolve Computers of any breach by You of any of the provisions of this Agreement will be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver will be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
14.5. No Assignment. No benefit or duty of You under this Agreement will, without the consent of Evolve Computers, be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so will be void. Evolve Computers may assign this Agreement without Your consent and without notice.
14.6. Force Majeure. Except for monetary obligations, this Agreement and Your obligations hereunder will not be affected or impaired because Evolve Computers is unable to fulfil any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of Force Majeure Event and Evolve Computers’ obligations under this Agreement will be suspended by any such Force Majeure Event. “Force Majeure Event” is any cause beyond Evolve Computers’ reasonable control or anticipation, including, without limitation, acts of war, acts of god, terrorism, earthquake, hurricanes, flood, fire or other casualty, embargo, riot, sabotage, labour shortage or dispute, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation facilities, failure of power, restrictive governmental laws or regulations, condemnation, acts of third parties, failure of the Internet or other reason that is beyond Evolve Computers’ reasonable control or anticipation.
14.7. Survival. The preamble, “Definitions” and Sections 2, 3, 4, 5, 6, 8, 9, 11, 12, 13 and 14 of this Agreement will survive termination.
14.8. Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement for provision of the Services to You and supersedes all other prior agreements and understandings, both written and oral, between You and Evolve Computers with respect to the Services. You understand and agree that Evolve Computers and You intend to include, as the sole third party beneficiaries of this Agreement, (a) Evolve Computers’ vendors and licensors and, in the event of any breach of this Agreement, Research in Motion Limited (“RIM”), with all rights and remedies available as if RIM and such vendors and licensors were a party to this Agreement and (b) the Evolve Computers Parties, all of whom may claim the benefit of Section 8.