General Service Terms

Rev 1.1 (01/08/2024) - list of amendments below the terms.

1. DEFINITIONS AND INTERPRETATION

1.1 In the Contract, the following terms shall have the meanings assigned to them below:

“Actual Availability”
has the meaning given to it in Clause 6.2;

“Affiliate”
in relation to a party, any entity that directly or indirectly controls, is controlled by or is under common control with that party and, for the purposes of the foregoing, “control” shall mean (i) the holding or possession of more than fifty percent (50%) of the shares or voting power of an entity; or (ii) the legal power to direct or cause the direction of the general management of an entity;

“Annual Charges”
the annual charges for the Services (or a part of them), as set out in the Order Form (and, if applicable, as varied in accordance with the Contract);

“Applicable Laws”
all laws, statutes, regulations and legally-binding codes in force and applicable to a party in any jurisdiction from time to time;

“Available”
means the Hosting Services are available for use and perform in accordance with the [the Contract] twenty-four (24) hours per day, seven (7) days a week, less Scheduled Downtime and Emergency Downtime, and “Availability” shall be construed accordingly;

“Charges”
all charges and fees payable under or in connection with the Contract, including (where applicable) any Annual Charges, Hosting Charges, Non-Recurring Charges and/or other charges or fees set out in the Contract;

“Confidential Information”
all information (i) relating to the business, assets, affairs, customers, clients, or suppliers of a party; or (ii) relating to the operations, processes, product information, know-how, technical information, designs, trade secrets or software of a party; or (iii) that is identified as or can be reasonably regarded as proprietary or confidential in nature; or (iv) derived from any of the foregoing;

“Contract”
the contract between Inevitech and the Customer for the provision of the Purchased Equipment and/or the Services, comprising the Order Form together with any special terms expressly referred to on the Order Form, these Service Terms, and any additional documents that are expressly stated to form part of the Contract;

“Core Hours”
means [0700 to 1900 (GMT) Monday to Sunday];

“Customer”
the entity which contracts with Inevitech and whose details are set out on the Order Form;

“Customer Content”
all information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from the Customer or an authorized user by or through the Services and, for the avoidance of doubt, Customer Content does not include Inevitech Materials;

“Customer Equipment”
any equipment, including tools, systems, infrastructure, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used to provide or receive the Services;

“Customer Personal Data”
any Personal Data processed under the Contract in respect of which the Customer is the controller under Data Protection Laws;

“Customer Site”
the Customer locations at which the Services will be provided or the Purchased Equipment located (if applicable), as specified on the Order Form, which shall include any Customer co-location racks within Inevitech data centres (if applicable);

“Data Protection Laws”
Applicable Laws relating to the protection of Personal Data;

“Dispute”
has the meaning given to it in Clause 21.1;

“Dispute Notice”
has the meaning given to it in Clause 21.1;

“Documentation”
any manuals, instructions, or other documents or materials that Inevitech provides or makes available to the Customer in any form or medium and which describe the functionality, components, features, or requirements of the Purchased Equipment and/or Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof;

“Emergency Downtime”
means a period during which Inevitech or its suppliers may make the Hosting Services (or any part of them) Unavailable in order to perform emergency maintenance or emergency updates to the Hosting Services platform or other Software[, provided that Inevitech uses reasonable endeavours during such Emergency Downtime to ensure that the period of Unavailability is minimised];

“Excluded Downtime”
means time where the Hosting Services are Unavailable, except for Scheduled Downtime or Emergency Downtime;

“Extended Term”
has the meaning given to it in Clause 18.1;

“Flexidesk”
service for Inevidesk hosted customers, enabling them to scale by the individual virtual desktop on a monthly or annual commitment;

“Force Majeure Event”
any circumstance beyond a party’s reasonable control (including, without limitation, acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party), non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause), interruption or failure of utility service, and/or technological attacks (including, but not limited to denial of service attacks, attacks involving Malicious Code and/or computer hacking);

“Hosting Charges”
the fees and charges (if applicable) for the Hosting Services, calculated at the rates set out in the Order Form (or if not so stipulated at the rates set out in the Documentation), and based on the usage information collected by Inevitech’s monitoring and reporting systems;

“Hosting Service Credits”
has the meaning given to it in Clause 6.3;

“Hosting Service Levels”
has the meaning given to it in Clause 6.2;

“Inevitech”
Inevitech Limited, registered in England and Wales under company number 12149874, or its Affiliate;

“Inevitech Equipment”
any equipment, including tools, systems, cabling or facilities, owned or provided by Inevitech, its agents, subcontractors or consultants, located either at the Customer Site or the Inevitech Site, which is used to provide the Services and, for the avoidance of doubt, unless expressly stated otherwise in the Contract, all equipment to be provided by Inevitech under the Contract (except Purchased Equipment) shall be Inevitech Equipment;

“Inevitech Materials”
all documents (including the Documentation), information, items and materials in any form, whether owned by Inevitech or a third party, which are developed or provided by Inevitech to the Customer in connection with the Services and/or the Purchased Equipment and, for the avoidance of doubt, Inevitech Materials do not include Customer Content;

“Inevitech Personnel”
the personnel and contractors of (i) Inevitech and/or its Affiliates; and (ii) Inevitech’s contractors and suppliers engaged in the provision of the Services;

“Inevitech Site”
the location(s) where the Services will be provided from (where applicable to a particular Service), including any data centres owned and operated by Inevitech or its suppliers;

“Initial Term”
the initial fixed period for which a Service shall be provided to the Customer (if applicable), as set out on the Order Form, and calculated from the Service Commencement Date for that Service or as otherwise specified in the Documentation;

“Insolvent”
in relation to a party (i) the appointment of, or the application to a court for the appointment of, a liquidator, provisional liquidator, administrator, administrative receiver, receiver or compulsory manager; or (ii) entering into a scheme of arrangement, a restructuring plan or composition, assignment or arrangement with or for the benefit of creditors generally or any class of creditors (or entering negotiations in relation to the any of the foregoing); or (iii) any reorganisation (other than a solvent reorganisation), moratorium, suspension of payments, winding-up, dissolution or other administration; or (iv) becoming unable to pay debts as and when they fall due; or (v) being deemed unable to pay debts as and when they fall due under Applicable Laws; or (vi) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in (i) to (v) above;

“Intellectual Property Rights”
all patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“License Charges”
the license charges for the Services (or a part of them), as set out in the Order Form (and, if applicable, as varied in accordance with the Contract);

“Licensors”
has the meaning given to it in Clause 13.1;

“Losses”
all losses, liabilities, claims, demands, costs (including labour and materials costs, interest, fines and penalties), damages, charges, expenses and fees (including reasonable legal costs);

“Malicious Code”
any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent the Customer or any authorized user from accessing or using the Services as intended by the Contract;

“Mandatory Policies”
Inevitech’s policies and codes in relation to the Services and/or the Purchased Equipment as may be notified to the Customer from time to time;

“Non-Recurring Charges”
the one-off charges (if any) for the Services and/or the Purchased Equipment, including any installation fees or purchase fees, as detailed on the Order Form (and, if applicable, as varied in accordance with the Contract);

“Normal Business Hours”
9:00 a.m. to 5:00 p.m. on any Working Day;

“Order Form”
the order form provided by Inevitech to the Customer for the Purchased Equipment and/or Services;

“Personal Data”
has the meaning set out in the Data Protection Laws;

“Personal Data Breach”
has the meaning given to it in Clause 15.2;

“Prohibited Content”
has the meaning given to it in Clause 14.3;

“Purchased Equipment”
the equipment (which includes Inevidesk ‘pods’) purchased by the Customer and sold by Inevitech in conjunction with the provision of the Services, as specified in the Order Form, and as may be further described in the Documentation;

“Required Availability”
has the meaning given to it in Clause 6.2;

“Scheduled Downtime”
means the period(s) of time during which Inevitech or its suppliers may make the Hosting Services (or any part of them) Unavailable in order to perform scheduled maintenance or updates to the Hosting Services, [provided that such downtime: (a) has been notified by Inevitech to Customer with at least [thirty (30)] days’ advance written notice; and (b) does not take place within the Core Hours];

“Services”
the ‘Inevidesk’ virtual desktop infrastructure and/or data centre hosting services to be provided by Inevitech to the Customer as set out on the Order Form and as may be further explained in the Documentation, including without limitation (a) the provision of Inevidesk ‘pods’ (which constitute Purchased Equipment) containing virtual desktops and for which Non-Recurring Charges are payable, (b) Inevidesk ‘pod’ related services for which Annual Charges are payable, and/or (c) Inevidesk hosting services (“Hosting Services”) for which Hosting Charges are payable, together with any other services from time to time offered by Inevitech and which Inevitech, by express written notice to the Customer, may include within the scope of the Contract;

“Service Commencement Date”
the date at which the Service is first delivered to the Customer, whether (a) the delivery of Purchased Equipment to the Customer, or (b) the access by the Customer to the Services;

“Service Terms”
these general service terms, as may be updated from time to time;

“Software”
any software to which the Customer is provided with access pursuant to the Contract, including any third party software which the Customer purchases through Inevitech or third party software embedded in the Purchased Equipment, Inevitech Equipment and/or Customer Equipment;

“Target Service Commencement Date”
the date, as set out in the Order Form, by which Inevitech shall use reasonable endeavours to deliver the Services;

“Termination Payment”
has the meaning given to it in Clause 18.4;

“Unavailable”
means where the Hosting Services are not Available, and “Unavailability” shall be construed accordingly; and

 “Working Day”
Monday to Friday (inclusive), 9:00 am – 5:00 pm, excluding all public and bank holidays in England and Wales.

1.2 Clause headings shall not affect the interpretation of these Service Terms.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.5 A reference to writing or written excludes faxes but not email.

1.6 Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2. APPLICATION OF SERVICE TERMS AND ORDER OF PRECEDENCE

2.1 These Service Terms shall: (i) apply to and be incorporated in the Contract; and (ii) prevail over any inconsistent terms or conditions contained in, or referred to in, any Customer purchase order, confirmation of order, specification, or other written correspondence, or as may be implied by law, trade custom, practice, or course of dealing.

2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Inevitech unless in writing and signed by a duly authorized representative of Inevitech.

2.3 In the event of any conflict between (i) an Order Form; (ii) any special terms expressly referred to on the Order Form; (iii) these Service Terms; and (iv) any additional documents that are expressly stated to form part of the Contract in the Contract, the hierarchy of precedence shall be as here stated with (i) having the highest precedence and (iv) the lowest precedence.

3. ORDERING

3.1 Any quotation is valid for a period of 48 hours only, and Inevitech may withdraw it at any time after providing the quotation by notice to the Customer.

3.2 Upon the acceptance of a quotation by the Customer, Inevitech shall issue an Order Form to the Customer which shall be deemed to be an offer subject to these Service Terms. To guarantee the quoted price set out in the Order Form, the Order Form must be countersigned by the Customer and returned to Inevitech within 48 hours of the date of issue.

3.3 The Order Form together with these Service Terms shall comprise the Contract between Inevitech and the Customer. The execution and return of the Order Form by the Customer, or the Customer confirming that Inevitech should commence or execute work pursuant to the Order Form, or Inevitech actually commencing or executing work pursuant to the Order Form (whichever is earlier), shall establish the Contract. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Order Form, any purchase order, acknowledgement, written correspondence or otherwise shall not govern the Contract in any circumstance.

3.4 Once the Order Form is countersigned by the Customer or the Contract has otherwise been established pursuant to Clause 3.3, no order under an Order Form may be cancelled by the Customer, except with the agreement in writing of Inevitech and the Customer shall indemnify Inevitech in full against all Losses incurred or suffered by Inevitech as a result of any cancellation.

4. PURCHASED EQUIPMENT

4.1 The quantity and description of the Purchased Equipment shall be as set out in the Order Form. All samples, drawings, descriptive matter, specifications, and advertising issued by Inevitech, and any descriptions or illustrations contained in Inevitech’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

4.2 Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, offer, invoice or other document or information issued by Inevitech shall be subject to correction without any liability on the part of Inevitech.

4.3 Inevitech reserves the right (but does not assume the obligation) to make any changes in the specification of the Purchased Equipment at any time which are required to conform with Applicable Laws or which do not materially adversely affect the Purchased Equipment’s quality or performance.

4.4 Inevitech Personnel are not authorized to make any representations, warranties or contractually binding statements concerning the Purchased Equipment.

4.5 Inevitech shall use its reasonable endeavours to deliver the Purchased Equipment on the Target Service Commencement Date specified in the Order Form, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time. Time is not of the essence as to the delivery of the Purchased Equipment and Inevitech shall not in any circumstances be liable for any delay in delivery, howsoever caused.

4.6 The Purchased Equipment may be delivered by Inevitech in advance of the quoted Target Service Commencement Date on giving reasonable notice to the Customer. Delivery shall be made during Normal Business Hours. Inevitech may levy additional charges for any deliveries made outside such hours at the Customer's request (provided delivery outside of such hours is agreed to by Inevitech).

4.7 The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Purchased Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Purchased Equipment. If Inevitech is prevented from carrying out delivery or installation on the Target Service Commencement Date or other agreed date because no such preparation has been carried out, Inevitech may levy additional charges to recover any Losses arising from this event.

4.8 The Customer shall be deemed to have accepted the Purchased Equipment three (3) days after delivery unless it notifies Inevitech in writing of any non-conformity or damage and furnishes such written evidence or other documentation as reasonably required by Inevitech. If the Customer timely notifies Inevitech of any non-conformity or damage, Inevitech shall, in its sole discretion, (i) replace such non-conforming or damaged Purchased Equipment with conforming Purchased Equipment; or (ii) credit or refund the price for such non-conforming or damaged Purchased Equipment, together with any reasonable shipping and handling expenses incurred by the Customer in connection therewith. The Customer acknowledges and agrees that the remedies set forth in this Clause 4.8 are the Customer’s exclusive remedies for the delivery of non-conforming or damaged Purchased Equipment.

4.9 Additional Purchased Equipment may be ordered at any time. Each order shall be subject to a new Order Form and constitute a new Contract between the parties.

5. SERVICE PROVISION

5.1 Where a Service has a Target Service Commencement Date, Inevitech will notify the Customer in writing when it is ready to hand-over that Service to the Customer. Where a Service does not have a Target Service Commencement Date Inevitech shall notify the Customer in writing when it is ready to commence performance of such Services.

5.2 Where Inevitech agrees to delay the Service Commencement Date following the Customer’s written request, or the Target Service Commencement Date is not met as a result of the Customer’s delay or failure to fulfil its obligations under the Contract, the Annual Charges for that Service shall be payable from the Target Service Commencement Date for that Service, unless otherwise agreed in writing by the parties. Nothing in this clause shall oblige Inevitech to agree to any delayed handover of the Services.

5.3 Inevitech reserves the right, at any time, to make any modification, change or addition to, or replacement of, any Service (or part thereof) or the Inevitech Equipment (or part thereof), where this is required to conform with any Applicable Laws (including any safety requirements).

5.4 Inevitech reserves the right (without any liability to the Customer) to carry out planned and emergency works in respect of the Services in accordance with the Documentation or as otherwise notified to the Customer from time to time. The Customer acknowledges that this may result in non-availability of, or other impact to, the Services for the duration such works are carried out.

6. SERVICE LEVELS AND FAULT MANAGEMENT

Purchased Equipment
6.1 The Customer shall promptly notify Inevitech of any material non-conformity or fault with the Purchased Equipment. Inevitech shall use reasonable endeavours to adhere to the following service levels in respect of any material non-conformity or fault with respect to the Purchased Equipment: (i) support request: response within four (4) Normal Business Hours, resolution within eight (8) Normal Business Hours; (ii) Purchased Equipment hardware repair: next Working Day (provided Inevitech is notified within Normal Business Hours) (London), two Working Days starting on the next Working Day after notification within Normal Business Hours (rest of UK).

Hosting Services
6.2 During the Term, Inevitech shall [use reasonable endeavours to] perform the Hosting Services at levels which meet or exceed the service levels (“Hosting Service Levels”) below:

6.3 If Inevitech fails to provide the Hosting Services in accordance with the Hosting Service Levels, Customer shall become entitled to the service credit(s) (“Hosting Service Credits”) equal to the percentage of downtime below the stated Hosting Service Level.

6.4 Customer’s total Hosting Service Credit entitlement in a month shall not exceed 100% of the applicable monthly Hosting Charges.

6.5 Subject to Clause 20.12, in the event of the Unavailability of the Hosting Services as a result of the failure by Inevitech to meet the Hosting Service Levels set out in Clause 6.2, the Customer’s sole and exclusive remedy (provided such Unavailability or failure is the sole fault of Inevitech and not due to Scheduled Downtime, Emergency Downtime or other planned or emergency works in respect of the Hosting Services under Clause 5.4), shall be the Hosting Service Credits.

6.6 The parties acknowledge that the Hosting Service Credits are proportionate in the context of the Contract and the Customer’s requirements. Hosting Service Credits shall be shown as a deduction from the amount due from the Customer to Inevitech in the next invoice then due to be issued under the Contract in respect of the Hosting Charges. Inevitech shall not in any circumstances be obliged to pay any money or make any refund to the Customer.

General
6.7 Failure to meet the service levels in this Clause 6 shall not constitute a serious or material breach of the Contract or provide cause for termination.

6.8 Any time incurred by Inevitech in investigating alleged faults or non-conformities with the Services notified to it by the Customer, which are later found not to have existed, may be charged to the Customer in accordance with Inevitech’s then current standard rates together with any third party supplier costs incurred in investigating the same. The Customer shall be entitled to see reasonable documentary evidence attesting to such third party costs.

7. CUSTOMER SITE ACCESS

7.1 Where necessary to enable Inevitech to carry out its obligations and exercise its rights under the Contract, the Customer shall provide Inevitech Personnel with such access to the Customer Site as Inevitech shall reasonably require, subject to reasonable advance notice. Any period of delay in providing Inevitech Personnel with access to the Customer Site shall be excluded from any service level calculations.

7.2 The Customer shall ensure that Inevitech Personnel have a safe working environment at the Customer Site.

7.3 Inevitech shall use reasonable endeavours to ensures that Inevitech Personnel comply with all reasonable health and safety and security policies applicable to the Customer Site, provided such policies and requirements are notified to Inevitech in writing prior to, or at the time of entry to, the Customer Site.

8. CHARGES AND PAYMENT

General
8.1 The Customer shall pay Inevitech the Charges in accordance with this Clause 8.

8.2 Subject to Clause 8.7, the Customer shall pay all Charges within thirty (30) days of the date of the invoice. Invoices will normally be submitted by email to the Customer’s nominated email address for invoices. The Customer shall make all payments of the Charges in pounds sterling to the address or account specified by Inevitech in the invoice or as otherwise notified in writing from time to time.

8.3 All Charges and other amounts payable by Customer under the Contract are exclusive of taxes (including VAT) and similar assessments. Without limiting the foregoing, the Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority (in any jurisdiction) on any amounts payable by the Customer under or in connection with the Contract.

8.4 All amounts payable to Inevitech under the Contract shall be paid by the Customer to Inevitech in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax required by Applicable Laws).

8.5 If the Customer fails to make any payment when due then, without prejudice to Inevitech’s other rights and remedies: (a) Inevitech may charge interest on the outstanding sum on a daily basis (before and after any judgement) until the date of payment at the Bank of England base rate from time to time plus four percent (4%); (b) the Customer shall reimburse Inevitech on demand for all costs incurred in collecting any late payments or interest (including reasonable legal fees, court costs and/or collection agency fees); and/or (c) Inevitech may suspend the performance of the Services (or any part thereof) in accordance with Clause 17 without incurring any obligation or liability to the Customer or any other person by reason of such suspension; and/or (d) Inevitech may use any deposit given by the Customer under Clause 8.6 to pay any outstanding sum.

8.6 Inevitech may require the Customer to pay a deposit and/or require the Customer to procure that the Customer’s parent company or Affiliate guarantees the payment of the Charges due under the Contract. The Customer shall use its best endeavours to promptly procure the execution of any agreement or deed (on commercially reasonable terms) that Inevitech submits to the Customer for such purpose.

Non-Recurring Charges
8.7 Any Non-Recurring Charges must be paid by the Customer to Inevitech immediately upon signature of the Order Form or when the Contract is otherwise established in accordance with Clause 3.3.

Annual Charges
8.8 The Annual Charges, if applicable, in respect of the first year of the Initial Term shall become invoiceable immediately by Inevitech upon signature of the Order Form or when the Contract is otherwise established in accordance with Clause 3.3. Thereafter, the Annual Charges shall be payable by the Customer in advance on each anniversary of the Service Commencement Date in accordance with any payment frequency set out on the Order Form.

8.9 As from the Service Commencement Date, the Annual Charges shall be fixed for the duration of the Initial Term. With effect from the expiry of the Initial Term, Inevitech shall be entitled to revise the Annual Charges to reflect Inevitech’s then current standard rates by giving the Customer not less than ninety (90) days prior written notice.

Hosting Charges
8.10 Hosting Charges (if applicable) shall be invoiceable by Inevitech monthly in advance, based on agreed resources. Any agreed adjustment to resources made within a month may be charged pro-rata by additional invoice.

8.11 Inevitech may increase Hosting Charges at any time during the term of the Contract to reflect changes in its costs by providing the Customer not less than thirty (30) calendar days written notice.

License Charges
8.12 The License Charges, unless otherwise agreed, are subject to an annual commitment. Additional licenses may be added during an annual commitment and will be charged on a pro-rata basis. Total license numbers may be revised on the anniversary of the annual commitment by giving Inevitech not less than thirty (30) days prior written notice before the expiry of the relevant annual commitment.

8.13 The License Charges, if applicable, shall become invoiceable immediately by Inevitech upon the Service Commencement Date in accordance with any payment frequency and method set out on the Order Form.

8.14 As from the Service Commencement Date, the License Charges shall be fixed for the duration of each annual commitment. Inevitech shall be entitled to revise the License Charges to reflect Inevitech’s then current standard rates by giving the Customer not less than thirty (30) days prior written notice before the expiry of any existing annual commitment.

9. INEVITECH’S RESPONSIBILITIES

9.1 Subject to any service description in the Contract, Inevitech is free to determine how the Services shall be provided.

9.2 Inevitech shall use reasonable endeavours to provide the Services in accordance with these Service Terms and the Contract in all material respects. The Customer acknowledges and agrees that Inevitech cannot (and does not) undertake, guarantee, represent or warrant that the Services will be error-free or uninterrupted.

9.3 Inevitech shall use reasonable endeavours to meet the Target Service Commencement Date and any other dates or timescales set out in the Contract, but time shall not be of the essence for the purposes of the Contract.

9.4 Inevitech shall use reasonable endeavours to ensure that Inevitech Personnel performing any Service possess appropriate skills and experience. Inevitech reserves the right to replace any Inevitech Personnel at any time without the Customer’s consent.

10. CUSTOMER RESPONSIBILITIES

10.1 The Customer shall at all times:

10.1.1 use the Purchased Equipment and/or Services only for its general business purposes;

10.1.2 follow Inevitech’s reasonable instructions and guidelines in relation to the Purchased Equipment and/or Services, including any set out in the Documentation and/or the Mandatory Policies;

10.1.3 promptly provide Inevitech with such accurate and up-to-date information, co-operation, and support as Inevitech may reasonably require pursuant to or in connection with the Contract;

10.1.4 appoint a Customer contact point and designate suitably knowledgeable, qualified and authorised employees, who have access rights to all the Customer Equipment to provide co-ordination and assistance to Inevitech, and shall notify Inevitech in writing of any updates required to such authorised personnel. Inevitech shall have no liability for failure to deal with requests or respond to instructions from persons not appropriately authorised by the Customer in writing;

10.1.5 maintain (or procure the maintenance of) any Customer Equipment to a safe standard;

10.1.6 ensure that any Customer Equipment located at an Inevitech Site is clearly labelled as belonging to the Customer;

10.1.7 notify Inevitech immediately if the Customer Equipment is subject to interference or malfunctioning that may, or is reasonably likely to, affect the Services;

10.1.8 promptly provide sufficient technology and infrastructure to enable Inevidesk to provide remote support where it is necessary to do so;

10.1.9 promptly install any updates or patches in relation to the Services or the Purchased Equipment as notified by Inevitech;

10.1.10 ensure that, where applicable, the Customer Equipment complies with the hardware and software requirements set out in the Contract or otherwise notified to the Customer by Inevitech or set out in the Documentation from time to time;

10.1.11 ensure that the Customer Equipment and its systems and technology infrastructure are compatible with the Services;

10.1.12 ensure any Customer Equipment, Inevitech Equipment and/or Software is only used by properly trained personnel and with all reasonable skill and due care;

10.1.13 take all reasonable steps (including testing with the latest commercially available detection software) to ensure that any Customer Equipment and/or software used with or in conjunction with the Services is not infected by Malicious Code;

10.1.14 undertake any work required to be carried out by the Customer as specified in the Documentation or as notified by Inevitech from time to time, in a timely manner and provide a suitable space and environment for the Customer Equipment and the Inevitech Equipment (except where located at Inevitech Sites); and

10.1.15 promptly (and no later than such date reasonably required and notified by Inevitech) install all modifications, patches and updates to any Software that Inevitech makes available to the Customer.

10.2 The Customer shall not (and shall procure that all users of the Services shall not):

10.2.1 use the Purchased Equipment, Services, Software, Inevitech Site, or Inevitech Equipment in any way that violates any Appliable Laws, or act or omit to act in any way which will place Inevitech in breach of any Applicable Laws;

10.2.2 use the Purchased Equipment, Services, Software, Inevitech Site or Inevitech Equipment in any way that would constitute or contribute to the commission of a crime, tort, fraud or other unlawful activity (in any applicable jurisdiction);

10.2.3 allow any unauthorised user or third party access to, or use of, the Customer Equipment, the Inevitech Equipment, the Inevitech Site or the Services and shall take all reasonable security measures to prevent the same;

10.2.4 add to, modify, disassemble, reverse engineer, or interfere in any way with the Purchased Equipment, Software, Inevitech Equipment (if applicable), any equipment which is not Customer Equipment, or the Services;

10.2.5 without Inevitech’s prior written consent, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Software, copy, “frame” or “mirror” any content available on the Software on any other server or wireless Internet-based device, re-distribute or sublicense the Software, or any part thereof, to any third party, operate the Software for use by third parties or otherwise operate the Software on a service bureau basis, or copy or reproduce the Software in any way, in whole or in part, modify or create any derivative work based on the Software, or allow, permit or assist any third party to do any of the foregoing; or

10.2.6 use the Purchased Equipment, Services, Software, Inevitech Site, the Inevitech Equipment, or the Customer Equipment in any way that: (i) would or may be harmful or detrimental to the reputation of Inevitech and/or its suppliers; and/or (ii) do anything that may be dangerous or a nuisance or inconvenience to other users of Inevitech’s services or the Inevitech Site.

10.3 The Customer acknowledges and agrees that the Services are not designed to be used in circumstances in which errors or inaccuracies in the content, functionality, services, data or information provided by the Services or the failure of the Services could lead to death, personal injury, or severe physical or environmental damage and, unless expressly authorized by Inevitech in the Contract, the Customer agrees not to use the Services for any such purpose.

10.4 The Customer shall indemnify and keep Inevitech indemnified and hold Inevitech harmless from and against all Losses arising out of, or in relation to, any breach by the Customer (including any user of the Services) of the provisions of Clauses 10.1, 10.2 and 10.3.

10.5 The Customer is responsible for (and shall be liable to Inevitech in respect of) the use of the Services (including any incurred Charges) by its employees, personnel and/or any other person who has been given access to the Services by the Customer or who has obtained access to the Services even if such use was not authorised by the Customer, provided this was not due to Inevitech’s breach of the Contract and/or its negligence.

10.6 Without prejudice to any rights or remedies under the Contract or at law, the Customer shall notify Inevitech of any breach of this Clause 10 by the Customer and shall promptly take all actions reasonably within its control to remedy any default.

11. RISK AND TITLE

11.1 On delivery of each item of the Purchased Equipment, full risk of damage to, or loss of, such Purchased Equipment shall pass to the Customer. Inevitech shall off-load the Purchased Equipment at the Customer’s risk. The Customer shall be responsible to Inevitech for the safety, safe custody and safe use of the Purchased Equipment for the duration it is in the Customer’s custody and, in respect of any Inevitech Equipment only, the Customer shall be liable to Inevitech for any loss or damage except for (i) fair wear and tear; and (ii) any loss or damage caused by the negligent acts or omissions of Inevitech, its employees, contractors or agents.

11.2 On payment in full of the Non-Recurring Charges or completion of delivery to the Customer (including off-loading) (whichever is later), ownership of and title in any Purchased Equipment shall pass to the Customer. If the Non-Recurring Charges are not paid in full, then ownership of and title in the Purchased Equipment shall not pass to the Customer and, without prejudice to Inevitech’s other rights and remedies, Inevitech reserves the right to recover and resell the Purchased Equipment and, for that purpose, the Customer grants to Inevitech an irrevocable licence to enter the premises where the Purchased Equipment is located during Normal Business Hours following two (2) Working Days’ prior notice. The Customer shall keep the Purchased Equipment wholly identifiable and distinguishable from other goods and equipment until such time that title passes to the Customer. For the avoidance of doubt, nothing in the Contract shall act to transfer ownership of any Inevitech Equipment to the Customer.

11.3 Until ownership of the Purchased Equipment has passed to the Customer, the Customer shall: (i) hold the Purchased Equipment on a fiduciary basis as Inevitech’s bailee; (ii) store the Purchased Equipment (at no cost to Inevitech) in satisfactory conditions and separately from all the Customer's other equipment or that of a third party, so that it remains readily identifiable as Inevitech’s property; (iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Purchased Equipment; and (iv) keep the Purchased Equipment insured on Inevitech’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Inevitech, ensure that Inevitech’s interest in the Purchased Equipment is noted on the policy, and hold the proceeds of such insurance on trust for Inevitech and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

12. WARRANTIES AND REMEDIES

12.1 Inevitech Warranties

Purchased Equipment
12.1.1 In respect of the Purchased Equipment, Inevitech warrants to the Customer that for the period of three (3) years starting on the Service Commencement Date the Purchased Equipment shall be free from material defects of workmanship and materials. After the expiry of the period of three (3) years starting on the Service Commencement Date, the repair or replacement of the Purchased Equipment or any parts thereof shall be charged to the Customer on a work and materials basis at Inevitech’s then standard rates. As the Customer’s sole and exclusive remedy for a breach of the warranty in this Clause 12.1.1, Inevitech undertakes, at its option and in its sole discretion, to repair or replace the Purchased Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship, always provided that:

(a) Inevitech shall not in any circumstances be liable for a breach of the warranty contained in Clause 12.1.1 unless: (i) the Customer gives written notice of the defect to Inevitech within seven (7) days of the time when the Customer discovers or ought to have discovered the defect; and (ii) after receiving the notice, Inevitech is given a reasonable opportunity of examining such Purchased Equipment and the Customer (if asked to do so by Inevitech) returns such Purchased Equipment to Inevitech’s place of business at Inevitech’s cost;

(b) Inevitech shall not in any circumstances be liable for a breach of the warranty in Clause 12.1.1 if: (i) the defect arises because the Customer failed to follow the Documentation or Inevitech’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Purchased Equipment or (if there are none) good trade practice; or (ii) the Customer modifies, alters, tampers with or repairs the relevant Purchased Equipment without the written consent of Inevitech;

(c) Any repaired or replacement Purchased Equipment shall be under warranty for the unexpired portion of the three years’ period referred to in Clause 12.1.1; and

(d) Inevitech shall not in any circumstances be liable for any damage or defect to the Purchased Equipment caused by (i) improper use of the Purchased Equipment; (ii) use outside its normal application; (iii) the negligence of the Customer; or (iv) breach by the Customer of any of its obligations under the Contract.

Services
12.1.2 In respect of the Services, Inevitech warrants to the Customer that for the duration of the Contract it shall perform the Services using personnel of reasonable skill, experience, and qualification and in a professional and workmanlike manner. As the Customer’s sole and exclusive remedy for a breach of the warranty in this Clause 12.1.2, Inevitech shall, at its option and in its sole discretion, remedy, re-perform or refund the Services that do not comply with Clause 12.1.2, always provided that:

(a) the Customer promptly serves written notice on Inevitech identifying in sufficient detail the nature and extent of the non-compliance; and

(b) Inevitech shall not in any circumstances be liable in respect of the Services (including without limitation the availability thereof) where caused (in whole or part) by (i) any act, omission or event beyond Inevitech’s reasonable control including without limitation internet connectivity, the Customer’s technology infrastructure or systems, any act or omission on the part of the Customer, or any act or omission on the part of Inevitech’s suppliers; (ii) the Customer’s failure to follow the Documentation or Inevitech’s oral or written instructions as to the installation, use or maintenance of the Services; (iii) the Customer’s breach of any term of the Contract; (iv) the Customer’s negligence; or (v) Scheduled Downtime, Emergency Downtime and/or other planned or emergency works under Clause 5.4; and

(c) the Customer’s sole and exclusive remedy in respect of the Hosting Services shall be the Hosting Service Credits as set out under Clause 6.

12.2 Customer Warranties

The Customer warrants to Inevitech that: (i) it shall at all times use the Services in accordance with the Contract (including these Service Terms) and the Documentation; (ii) any material and/or communication received, transmitted, hosted or otherwise processed using the Services (other than entirely unsolicited communications) will not be menacing, of a junk-mail or spam-like nature, illegal, obscene, threatening, defamatory, discriminatory, promote illegal or unlawful activity, be otherwise actionable or in violation of any Applicable Laws to which the use of the Services is subject, or infringe the Intellectual Property Rights of Inevitech or a third party; (iii) its authorised personnel under Clause 10.1.4 and any additional or replacement nominated employees have the appropriate level of authority to make decisions relating to the Services; and (iv) it has all the necessary consents, authorizations, permits and licences (including any virtualization rights for Windows or other relevant software) required in connection with its use of the Services.

12.3 Mutual Warranties

Each party warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Applicable Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Contract; (iii) the execution of the Order Form by its representative whose signature is set forth on the Order Form has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when duly made in accordance with Clause 3.3, the Contract will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

13. INTELLECTUAL PROPERTY RIGHTS

13.1 Ownership of and title to any Intellectual Property Rights in the Purchased Equipment, the Services (including Software), the Documentation and/or the Inevitech Materials are the sole property of Inevitech or its third party licensors (“Licensors”). Nothing in the Contract shall be deemed or construed as transferring any Intellectual Property Rights to the Customer.

13.2 Ownership of and title to the Customer Content and any Intellectual Property Rights therein is and will remain the property of the Customer.

13.3 If the Customer is provided with access to, or use of, third party Software, the Customer agrees to abide by any third party software conditions of use as set out in any relevant end user license agreements (“EULA”) provided or made available to the Customer by Inevitech. The Customer shall (and shall procure that all users of the Services shall) only use the Software in accordance with such EULA applicable to the third party Software. Inevitech’s liability in respect of any third party Software shall be limited and excluded in the same manner and to the same extent as set out in the terms and conditions of the applicable EULA.

13.4 The Customer agrees that Inevitech may provide the Licensors with such information regarding the use of the Software as they may reasonably request, including information on the number of licenses required for the Customer’s use or access of the Software, the country in which the Customer is located, and the Customer’s name and address.

13.5 Inevitech and/or a Licensor (or its nominated representatives) may, at Inevitech’s expense, access the Customer Site and Customer Equipment and records relevant to the use of the Software provided by Inevitech or a Licensor to verify compliance with any EULA during Normal Business Hours and subject to reasonable prior notice.

13.6 If the Customer uses software it has purchased for itself in conjunction with the Services, the Customer shall acquire all necessary permissions, consents, licences and authorizations to use the software from the person with the rights to such software and shall comply with any restrictions regarding license mobility, where applicable.

13.7 Inevitech shall indemnify the Customer in respect of all Losses incurred or suffered by the Customer as the result of a claim by a third party that the provision of the Services by Inevitech to the Customer infringes such third party’s Intellectual Property Rights. Inevitech shall only be liable under this indemnity if: (i) Inevitech is promptly notified of any such claim by the Customer; (ii) Inevitech is given sole control of the claim and the freedom to defend or settle the claim as it deems fit; (iii) the Customer provides all reasonable assistance to Inevitech at Inevitech’s cost in respect of the claim; (iv) the Customer makes no statements or admissions of any liability in respect of the claim; (v) the claim does not arise from the use of the Services, any Software and/or the Purchased Equipment otherwise than as permitted under the Contract; (vi) the claim does not arise from the combining of the Services with any services or equipment not supplied by Inevitech; (vii) the claim does not arise from any modification to the Services, any Software and/or the Purchased Equipment not carried out or authorised in writing by Inevitech; and (viii) the claim does not arise from the use of any Software other than in accordance with any applicable EULA.

14. CUSTOMER CONTENT

14.1 The Customer grants Inevitech a worldwide, irrevocable (except on Contract termination only), royalty-free, non-exclusive, sub-licensable (to Inevitech’s authorised subcontractors only) right for the duration of the Contract to process the Customer Content to the extent reasonably necessary to perform its obligations under the Contract.

14.2 The Customer shall indemnify and hold harmless Inevitech in respect of all Losses incurred or suffered by Inevitech as a result of a claim by a third party that (i) Inevitech’s installation, use, transmission, storage, possession of or access to the Customer Equipment, Customer Content, or third party software provided by the Customer in connection with the Services infringes the Intellectual Property Rights or other rights of a third party; and/or (ii) the Customer uses the Services or the Purchased Equipment in a manner which infringes the Intellectual Property Rights of a third party. The Customer shall only be liable under this indemnity if: (i) the Customer is promptly notified of any such claim by Inevitech; (ii) the Customer is given sole control of the claim and the freedom to defend or settle the claim as it deems fit; (iii) Inevitech provides reasonable assistance to the Customer at the Customer’s cost in respect of the claim; and (iv) Inevitech makes no statements or admissions of any liability in respect of the claim.

14.3 Without prejudice to Inevitech’s suspension and termination rights under the Contract, and notwithstanding Inevitech cannot routinely access any Customer Content, Inevitech will notify the Customer if it becomes aware of any Customer Content that violates the terms of the Contract (“Prohibited Content”). Upon such notice, the Customer shall promptly remove and delete such Prohibited Content from the Services. If the Customer fails to promptly remove the Prohibited Content, Inevitech may (without any liability to the Customer) remove and delete the Prohibited Content from the Services or disable access to the Prohibited Content. Notwithstanding the foregoing, Inevitech may (without any liability to the Customer) remove or disable access to the Prohibited Content without prior notice if required by Applicable Laws or to comply with any judicial, regulatory, or other governmental order or request or order of any law enforcement agency. If Inevitech removes Prohibited Content without prior notice, it will notify the Customer within a reasonable time thereafter, unless prohibited by Applicable Laws.

14.4 Inevitech maintains certain security procedures for the Customer Content while it is stored on or transmitted over equipment and facilities Inevitech controls. As between Inevitech and the Customer, the Customer is solely responsible for management of the Customer Content stored on, or transmitted by means of, the Services, including selection and use of the security features and options that Inevitech provides as part of the Services. The Customer is solely responsible for developing and maintaining data management and security procedures the Customer deems appropriate, such as application logon security, encryption of data and Malicious Code protection, and retaining source documents and maintaining a procedure that will allow the Customer to recover lost or damaged data. INEVITECH DOES NOT UNDERTAKE, WARRANT OR GUARANTEE THAT ITS SECURITY PROCEDURES WILL PREVENT THE LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO, CUSTOMER CONTENT.

15. DATA PROTECTION

15.1 In relation to Customer Personal Data (if any) processed by Inevitech on behalf of the Customer pursuant to the Contract, Inevitech is the processor and the Customer is the controller.

15.2 In its capacity as a processor (if applicable) under the Contract, Inevitech shall:

15.2.1 only process Customer Personal Data: (i) to the extent reasonably necessary in order to provide the relevant Services and to exercise its rights and fulfil its obligations under, and in accordance with, the Contract; (ii) in accordance with any lawful written instructions regarding the processing of Customer Personal Data received by it from the Customer (if any) provided such instructions are consistent with the Contract; and (iii) as required by Applicable Laws;

15.2.2 apply appropriate organisational and technical measures to protect Customer Personal Data against any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Data transmitted, stored, or otherwise processed (“Personal Data Breach”);

15.2.3 ensure that its personnel having access to the Customer Personal Data are subject to a duty to keep the Customer Personal Data confidential;

15.2.4 only engage a sub-processor with respect to the Customer Personal Data pursuant to a written contract containing terms no less protective of Customer Personal Data than those set out in this Clause 15 and Inevitech shall notify the identity of such sub-processors to the Customer at least ten (10) days prior to their engagement (except in respect of sub-processors identified in the Documentation in respect of which the Customer hereby generally authorises their engagement by Inevitech);

15.2.5 notify the Customer of any Personal Data Breach without undue delay after becoming aware of the breach;

15.2.6 taking into account the nature of the processing, use reasonable endeavours to assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Data Protection Law;

15.2.7 use reasonable endeavours to assist the Customer (at the Customer’s cost) in ensuring compliance with the Customer’s obligations in respect of data security, breach notification, cooperation with supervisory authorities and data protection impact assessments under Data Protection Law, taking into account the nature of processing and the information available to Inevitech;

15.2.8 at the Customer’s written request, either return or delete (at the option of the Customer) all Customer Personal Data at the end of the provision of the Services unless Applicable Laws require or permit Inevitech to store or process the Customer Personal Data;

15.2.9 make available to the Customer all information reasonably necessary to demonstrate its compliance with the obligations in this Clause 15.2 in respect of Customer Personal Data  and, subject to Clause 15.3, allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer, in respect of any Customer Personal Data Processed by Inevitech under this Clause 15; and

15.2.10 not transfer any Customer Personal Data outside of the UK except: (i) to a country or territory in respect of which there is a finding of adequacy under Data Protection Law; (ii) where it implements appropriate safeguards (such as, for example, binding corporate rules, standard data protection clauses adopted by a supervisory authority, standard data protection clauses adopted by a supervisory authority or contractual clauses authorised by a supervisory authority); or (iii) where otherwise permitted by Data Protection Law.

15.3 The following provisions shall apply in respect of the Customer’s audit rights under Clause 15.2.10:

15.3.1 The parties shall use reasonable endeavours to schedule the audit within one (1) calendar month of a request by the Customer.

15.3.2 Subject to the provisions of this Clause 15.3, Inevitech shall provide the Customer with reasonable assistance to carry out the audit, including access to relevant premises, systems, records and personnel, except that access to records and systems shall be strictly limited to those areas solely containing data relating to the processing of Customer Personal Data under the Contract. No access to (i) data pertaining to other customers;  and/or (ii) any other information that is covered by a confidentiality obligation to a third party; and/or (iii) any financial or commercially sensitive information pertaining to Inevitech will be provided.

15.3.3 Any audit shall be carried out during Normal Business Hours and no more frequently than once in any twelve (12) month period unless otherwise required by Data Protection Law.

15.3.4 The Customer shall (and shall procure that all auditing personnel shall) comply with the reasonable (i) site security and health and safety policies and procedures applicable to Inevitech’s premises; and (ii) instructions of any supervising Inevitech personnel, while carrying out the audit.

15.3.5 The Customer shall (and shall procure that all auditing personnel shall) ensure that the audit is carried out in such a manner so as not to unreasonably disrupt the normal business operations of Inevitech and is carried out in an expeditious and professional manner by suitably qualified personnel.

15.3.6 Inevitech reserves the right, at all times, to refuse entry to its premises and/or systems, and/ or records or to remove from its premises to, and/or remove system and/or records access rights for, any person who in the reasonable opinion of Inevitech is not fit to have such access or is causing the Customer to be in breach of this Clause 15.3.

15.4 The Customer warrants and undertakes that in respect of Customer Personal Data processed by Inevitech under the Contract: (i) it has complied, and will at all times continue to comply, with Data Protection Law, (ii) it has a lawful basis (appropriately documented) for the processing of Customer Personal Data under the Contract, and (iii) such Customer Personal Data does not comprise any special categories of Personal Data or other such data deemed sensitive under Data Protection Law.

15.5 Unless expressly defined in the Contract, terms used in this Clause 15 which are defined in the Data Protection Laws shall have the meanings so given to them.

16. CONFIDENTIALITY

16.1 Each party undertakes that it shall not at any time during the Contract, and for a period of three (3) years after termination or expiry of the Contract, disclose to any person any Confidential Information of the other party, except as permitted by Clause 16.2.

16.2 Each party may disclose the other party's Confidential Information:

16.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this Clause 16;

16.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority or law enforcement agency; and

16.2.3 as reasonably necessary in connection with the performance of its obligations under the Contract.

16.3 No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

16.4 Upon termination or expiration of the Contract, if requested to do so by the other party, a party shall promptly return or destroy all the other party’s Confidential Information in its possession or under its control.

16.5 Each Party agrees that damages alone would not be an adequate remedy for any breach of Clause 16 and accordingly, without prejudice to any other rights or remedies available, each party shall be entitled to seek injunctive or other equitable relief to prevent any breach or threatened breach of Clause 1616.1 by the other party.

16.6 Except as provided for in Clause 16.7, neither party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as may be required by Applicable Law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), and/or any court or other authority of competent jurisdiction or law enforcement agency.

16.7The Customer agrees that Inevitech may disclose and publish the name of the Customer and the fact the Customer is a customer of Inevitech in connection with Inevitech’s marketing activities. The public disclosure of any further information shall be subject to the prior written consent of the Customer in accordance with Clause 16.6.

16.8 This Clause 16 shall survive the termination of the Contract, however arising.

17. SUSPENSION

17.1 Inevitech may, without terminating the Contract, suspend provision of any Services or any part thereof, in whole or in part:

17.1.1 with immediate effect if the Customer is in breach of Clause 10.2;

17.1.2 immediately upon written notice if the Customer is in breach of any other material obligation under the Contract and, in the case of a remediable breach, the Customer fails to remedy that breach within five (5) Working Days of receiving written notice to do so;

17.1.3 immediately upon written notice if the Customer becomes Insolvent;

17.1.4 with immediate effect if the Customer’s use of the Services is damaging or disrupting the proper functioning of the infrastructure and/or equipment used to provide services to Inevitech’s other customers;

17.1.5 with immediate effect if Inevitech is obliged to comply with the order, instruction or request of a court, government, emergency services organisation or other competent judicial, governmental, administrative, or regulatory authority; or

17.1.6 where: (i) Inevitech receives notice from a third party alleging that the Customer is using the Services to infringe the Intellectual Property Rights of a third party; and either (ii) Inevitech has reasonable grounds to believe that the third party’s claim has merit; or (iii) Inevitech, acting reasonably, considers it prudent to suspend the Services to avoid or mitigate its own liability in respect of the alleged infringement.

17.2 Inevitech’s right to suspend a Services pursuant to Clause 17.1 is without prejudice to Inevitech’s termination rights under Clause 18 or any other right under the Contract or at law.

17.3 Where Inevitech has suspended the Services pursuant to Clause 17.1.1, 17.1.4, 17.1.5 or 17.1.6 and it has not been practicable to provide written notice prior to such suspension, Inevitech shall notify the Customer as soon as is reasonably practicable thereafter (unless prohibited by Applicable Laws).

17.4 Inevitech shall reinstate any suspended Services as soon as reasonably possible once the circumstances giving rise to the suspension no longer exist or have been remedied (in each case in the opinion of Inevitech acting reasonably).

18. TERM AND TERMINATION

18.1 Subject to earlier termination of the Contract in accordance with its terms, the Contract shall continue in force:

18.1.1 for any Services which are not Hosting Services: for the Initial Term and shall automatically extend thereafter for another term of the same duration (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term unless or until terminated by either party giving to the other party not less than ninety (90) days’ written notice prior to the end of the Initial Term or an Extended Term, provided still that the Contract shall not expire earlier than the end of the Initial Term; and

18.1.2 for the Hosting Services (including flexidesks on monthly or annual commitments): for the Initial Term and thereafter unless or until terminated by either party giving to the other party not less than thirty (30) days’ prior written notice, provided still that the Contract shall not expire earlier than the end of the Initial Term.

18.2 Each party may terminate the Contract at any time with immediate effect on written notice to the other party if the other party:

18.2.1 fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;

18.2.2 has committed a material breach of the Contract which is not remediable or, where such material breach is remediable, is not remedied to the reasonable satisfaction of the non-breaching party within twenty eight (28) days of notice from the non-breaching party requiring the breach to be remedied; or

18.2.3 becomes Insolvent.

18.3 Inevitech shall have the right to terminate any Service and/or the Contract immediately upon written notice if instructed to do so by a court of law, regulator, or other appropriate authority and/or if required to do so by Applicable Law.

18.4 Where a Service is terminated or otherwise ended by the Customer, without cause, the Termination Payment shall be payable by the Customer as a one-off lump sum upon termination. The Customer acknowledges and agrees that the Termination Payment is based upon Inevitech’s revenue expectation which was reflected in the Charges and is compensatory in nature and not a penalty or unconscionable. The “Termination Payment” shall mean (i) all arrears of Charges payable under the Contract up to the date of termination, plus (ii) all remaining Charges not yet paid which would otherwise have been payable if the Customer terminated the Contract in accordance with Clause 18.1.

18.5 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

18.6 Upon termination of a Service and/or the Contract for any reason:

18.6.1 the Customer shall immediately cease to make use of the relevant Services and the Inevitech Equipment (if applicable);

18.6.2 the Customer shall, if required by Inevitech, allow Inevitech Personnel to enter the Customer Site during Normal Business Hours, subject to reasonable advance notice, for the purpose of removing any Inevitech Equipment and/or de-installing the Services;

18.6.3 the Customer shall, within five (5) Working Days of termination of the Contract, return to Inevitech (or Inevitech’s designated recipient) by same day courier any Inevitech Equipment (if applicable) or pay Inevitech for the Inevitech Equipment at its then-current prices for such equipment; and

18.6.4 any licences granted to the Customer by Inevitech pursuant to the Contract shall immediately terminate.

18.7 Clause 8 (Charges and Payment), Clause 13.1, Clause 16 (Confidentiality), Clauses 18.5, 18.6 and 18.7 , Clause 19 (Limitation of Liability), Clause 20 (General) and Clause 21 (Dispute Resolution, Governing Law and Jurisdiction) and any other provision of the Contract that expressly or by implication is intended to survive termination or expiry of the Contract shall remain in full force and effect.

19. LIMITATION OF LIABILITY

19.1 THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CLAUSE 19.

19.2 ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OBLIGATIONS AND TERMS WHICH WOULD OTHERWISE BE IMPLIED INTO THE CONTRACT BY STATUTE, CUSTOM, COURSE OF DEALING OR LAW (INCLUDING WITHOUT LIMITATION UNDER THE SUPPLY OF GOODS ACT 1979 AND/OR THE SUPPLY OF GOODS AND SERVICES ACT 1982 AND/OR IMPLIED WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR PURPOSE AND/OR SATISFACTORY QUALITY) ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN CLAUSE 12, ALL SERVICES, SOFTWARE AND INEVITECH MATERIALS ARE PROVIDED "AS IS." WITHOUT LIMITING THE FOREGOING, INEVITECH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, SOFTWARE OR INEVITECH MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS AND/OR SOFTWARE ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS AND/OR SOFTWARE IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS AND/SOFTWARE.

19.3 NEITHER PARTY EXCLUDES NOR LIMITS ITS LIABILITY UNDER THE CONTRACT: (I) FOR DEATH OR PERSONAL INJURY CAUSED BY ITS (OR ITS EMPLOYEES’, AGENTS’, OR CONTRACTORS’) NEGLIGENCE; (II) FOR FRAUD OR FRAUDULENT MISREPRESENTATION; (III) TO INDEMNIFY THE OTHER PARTY PURSUANT TO THE CONTRACT; AND (IV) IN THE CASE OF THE CUSTOMER ONLY, TO PAY THE CHARGES UNDER THE CONTRACT.

19.4 WITHOUT PREJUDICE TO CLAUSE 19.3, INEVITECH’S ENTIRE LIABILITY FOR ANY LOSS OR DAMAGE UNDER OR IN CONNECTION WITH THE CONTRACT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, BREACH OF STATUTORY DUTY OR OTHERWISE HOWSOEVER ARISING INCLUDING THAT OF ITS EMPLOYEES, AGENTS AND/OR CONTRACTORS), SHALL NOT IN ANY EVENT EXCEED AN AMOUNT EQUAL TO [200% OF] THE CHARGES PAID TO INEVITECH IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE FIRST CLAIM OR, WHERE THE LIABILITY ARISES IN THE FIRST TWELVE MONTHS OF THE CONTRACT, THE AMOUNT EQUAL TO THE CHARGES PAYABLE IN THE FIRST TWELVE MONTH PERIOD.

19.5 WITHOUT PREJUDICE TO CLAUSE 19.4, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY OF THE FOLLOWING HEADS OF LOSS:

19.5.1 LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT);

19.5.2 LOSS OF BUSINESS OPPORTUNITY (WHETHER DIRECT OR INDIRECT);

19.5.3 LOSS OF REVENUE (WHETHER DIRECT OR INDIRECT);

19.5.4 LOSS OF ANTICIPATED SAVINGS (WHETHER DIRECT OR INDIRECT);

19.5.5 WASTED EXPENDITURE (WHETHER DIRECT OR INDIRECT);

19.5.6 LOSS OF GOODWILL (WHETHER DIRECT OR INDIRECT);

19.5.7 LOSS OF USE (WHETHER DIRECT OR INDIRECT);

19.5.8 LOSS AND/OR CORRUPTION OF DATA OR INFORMATION (WHETHER DIRECT OR INDIRECT); AND/OR

19.5.9 ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COST, DAMAGE, CHARGE OR EXPENSE.

19.6 INEVITECH’S ENTIRE LIABILITY FOR ANY LOSS OR DAMAGE UNDER OR IN CONNECTION WITH THE CONTRACT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, BREACH OF STATUTORY DUTY OR OTHERWISE HOWSOEVER ARISING) CAUSED BY THIRD PARTY SOFTWARE SHALL BE LIMITED AND EXCLUDED TO THE SAME EXTENT AS THE RELEVANT THIRD PARTY SOFTWARE LICENSOR’S LIABILITY TO INEVITECH IS LIMITED OR EXCLUDED.

19.7 THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CHARGES REFLECT THE LEVEL OF LIABILITY UNDERTAKEN BY INEVITECH AND THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED IN THIS CLAUSE 19 ARE FAIR AND REASONABLE GIVEN THE CHARGES THAT ARE PAYABLE.

20. GENERAL

20.1 Notices
Any notice given to a party under or in connection with the Contract shall be in writing and shall be (i) delivered by hand or sent by pre-paid first-class post or other next working day delivery service providing proof of delivery, at its registered office (if a company) or (in any other case) its principal place of business, or (ii) sent by email to the addresses stated in the Order Form (or an address substituted in writing by the party to be served). Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or at 9.00 am on the second Working Day after posting (or at the time recorded by the delivery service), or if by email, at the time of transmission (provided addressed correctly), or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20.2 Non-Solicitation
Neither party shall, without the other party’s prior written consent, at any time from the date of the Contract to the expiry of twelve (12) months after the termination or expiry of the Contract, solicit or entice away from the other party or employ or attempt to employ any person who is or has been engaged as an employee, consultant or subcontractor in the provision and/or support of the Services.

20.3 Variation
Inevitech may update these Service Terms (or any of its Mandatory Policies or the Documentation) from time to time and will provide notice to the Customer at the email address on file. Such updates shall become effective thirty (30) days after such notice to the Customer. Where any such update would be of material detriment to the Customer and is not required by Applicable Laws, the Customer shall notify Inevitech of its objection within ten (10) days of receiving Inevitech’s notice. If the parties, negotiating in good faith, cannot reach agreement within a further thirty (30) days, the Customer may terminate the portion of the Services affected by the change without penalty by written notice to Inevitech. Any use of the Services after the effective date of the change will be deemed the Customer’s acceptance of the change. Notwithstanding any other provision of the Contract, Inevitech may at any time, on written notice to the Customer, amend the Contract where required to comply with Applicable Laws or regulatory requirements.

20.4 Subcontracting
Inevitech may subcontract its obligations under the Contract to any third party. Inevitech shall be liable for the acts and omissions of its subcontractors acting in the course of their engagement by Inevitech to the same extent as Inevitech would be under the Contract if those acts and/or omissions were committed by Inevitech.

20.5 Assignment
The Contract is personal to the Customer and Inevitech. Neither party shall at any time assign, charge, mortgage, declare a trust over or otherwise transfer the Contract and/or any of its rights or obligations thereunder, in whole or in part, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), save that Inevitech may at any time, upon notice but without consent, assign or transfer the Contract and/or any of its rights or obligations thereunder, in whole or in part, to (i) any Affiliate of Inevitech; or (ii) any successor to Inevitech following a reorganisation or merger of Inevitech with another organization or any sale to a third party purchaser of all or substantially all of Inevitech’s assets, business and/or undertaking.

20.6 Waiver
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right or remedy is only effective if given in writing.

20.7 Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.

20.8 Entire Agreement
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. No terms and conditions set out on any Customer documentation or correspondence submitted to Inevitech in connection with the Contract shall have any force or effect. Each party acknowledges that, in entering the Contract, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract, but nothing in this clause shall limit or exclude any liability for fraud.

20.9 Electronic Signatures
The Contract (and or any document under or pursuant to it) may be signed and delivered by electronic means and shall have the same force and effect as a signed “wet-ink” original. The parties expressly acknowledge and agree: (i) a human readable electronic version of the Contract (and or any document under or pursuant to it) containing a party’s electronic signature, or containing a mix of physical, “wet-ink” signatures and electronic signatures, shall constitute an original version of such Contract (or document under or pursuant to it); (ii) a party’s use of a key pad, mouse or other device to select an item, button, icon or similar act/action to otherwise insert their electronic signature into the Contract (or document under or pursuant to it) constitutes that party’s signature as if it had manually signed the same; and (iii) Inevitech’s chosen electronic signature software shall be accepted as valid and the solely-required authentication technology.

20.10 Third Party Rights
The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract and, unless specifically provided for in the Contract, no third party other than the Customer and Inevitech shall have any rights or obligations under the Contract nor any right to enforce its terms.

20.11 Compliance with Laws
Each party shall comply with their respective obligations under Applicable Laws (including but not limited to Applicable Laws relating to anti-bribery and anti-corruption).

20.12 Force Majeure
Notwithstanding any other term in these Service Terms, neither party shall be in breach of the Contract or otherwise liable for any delay or failure in performing its obligations under the Contract caused by a Force Majeure Event. A party affected by a Force Majeure Event shall serve prompt written notice of the Force Majeure Event and its expected duration on the other party and shall take all reasonable steps to mitigate the effects of the Force Majeure. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving not less than thirty (30) days’ written notice to the affected party.

20.13 No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party as the agent of the other party, or authorize a party to make or enter into any commitments for or on behalf of the other party. The Customer confirms it is acting on its own behalf and not for the benefit of any other person.

21. DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION

21.1 Dispute Resolution
If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (“Dispute”) then either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties’ respective senior executives with sufficient authority to resolve the Dispute shall attempt in good faith to resolve the Dispute. If and only if the Dispute has not been resolved by such senior executives within sixty (60) days of the Dispute Notice, the Dispute may be referred by either party for resolution in accordance with Clause 21.3.

21.2 Governing Law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of England and Wales.

21.3 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

Amendments made in revision 1.1 (01/08/2024):

• Addition of ‘Flexidesk’ and ‘License Charges’ definitions.

• Updated notice of service termination relating to flexidesk services in 18.1.2.

• Amendment to 8.10 ‘Hosting Charges’ to correct points of invoicing.

• Addition of clauses 8.12 - 1.14 to set out license terms.

• Updating of the ‘Initial Term’ definition.

• Updating of clause 18.1.1 to reflect the change in ‘Initial Term’ definition.