1. DEFINITIONS

Affiliate: any person, corporation or business entity which directly or indirectly controls, is controlled by or is under common control with such party.  “Control” means the holding of fifty (50) percent or more of the voting stock or other ownership interest of the business entity involved.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.

Bespoke Deliverables: Deliverables created specifically for the Customer, as specified in the SOW.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Confidential Information: has the meaning given in clause 12.1.

Consultants: has the meaning given in clause 11.1(d).

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Customer: means the legal entity whose details are set out on the SOW and which is responsible for payment of the Fees.

Customer's Marks: means any marks of the Customer, any associated artwork, logo, design, slogan, text and other collateral marketing signs of the Customer provided to Evident. 

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018; and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).

Data Transfer Method: Secure File Transfer Protocol (SFTP servers), provided by Evident, using volumes to separate client data. Customer to upload the data through either using the online portal made available at the Evident Insights Member Hub, or by providing their own SSH key pair for SFTP access. If using the latter, SFTP users are authenticated only via public key cryptography, using an ed25519 key provided by a designated contact from the Customer. The Customer shall be responsible for secure generation, storage and transfer of their own SSH key pair, used to authenticate the Data Transfer Method. All data is encrypted at rest and in transit to ISO:27001 standards. 

Deliverables: any output of the Services to be provided by Evident to the Customer as specified in the SOW.

Evident: a company incorporated in England and Wales whose registered number is 14184948 and whose registered office is at: 9th Floor, 107 Cheapside, London EC2V 6DN, United Kingdom.

Evident IPRs: all Intellectual Property Rights either subsisting in the Deliverables or otherwise necessary or desirable to enable a Customer to receive and use the Services.

Fees: the subscription fees payable by the Customer to Evident as set out in the SOW.

Initial Term: as set out in the SOW.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks  business names and domain names, rights in get-up , goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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.

Non-bespoke Deliverables: Deliverables produced for general use and not specific to any individual Customer, as specified in the SOW.

Outcomes Data: means any Customer Property transferred to Evident using the Data Transfer Method, transferred for the purposes of delivering the ‘Outcomes Benchmark’ deliverable.

Parties/ Party: Evident and Customer are referred to individually as a “Party” and together as the “Parties.”

Services: the services, including without limitation any Deliverables, to be provided by Evident to the Customer.

Statement of Work (SOW): a document executed or otherwise agreed upon by the Parties to procure specific Service(s) and which is subject to, governed by, and subordinate to these Service T&Cs. 

SOW Effective Date: the effective date set out in the SOW.

SOW Term: has the meaning given in clause 2.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services in accordance with these Service T&Cs.

VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

2. SOW TERM

2.1 The Services shall commence on the SOW Effective Date and shall continue for the Initial Term specified in the SOW, unless terminated earlier in accordance with these Service T&Cs. The period from the SOW Effective Date through the end of the Initial Term shall be the “SOW Term.”

3. SUPPLY OF SERVICES

3.1 Evident shall:

(a) provide the Services specified in the SOW.

(b) use all reasonable endeavours to meet any performance dates specified in the SOW.

(c) use reasonable endeavours to provide the Services and deliver the Deliverables to Customer in accordance with the SOW in all material respects.

3.2 Evident is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

4. CUSTOMER'S OBLIGATIONS

4.1 The Customer shall:

(a) provide such necessary information, including any required approvals, timing preferences or scheduling instructions, as Evident may reasonably request to perform the Services; if not provided within the SOW Term, Evident shall have no obligation to deliver the affected Deliverables;

(b) comply with all applicable laws and regulations with respect to its activities under the SOW;

(c) ensure that the Customer uses the Services in accordance with these Service T&Cs; and

(d) be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Evident (or its suppliers or sub-contractors') data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

4.2 Except to the extent expressly permitted under these Service T&Cs or the SOW, the Customer shall not:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means;

(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;

(c) access all or any part of the Services in order to build a product or service which competes with the Services;

(d) use the Services to provide services to third parties unless otherwise agreed with Evident;

(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party; or

(f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 4 or as otherwise agreed by Evident in writing.

4.3 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any Customer Affiliate or any other third party unless otherwise agreed in advance in writing by Evident.

5. FEES AND PAYMENT

5.1 In consideration for the provision of the Services, the Customer shall pay Evident the Fees as specified in the SOW in accordance with this clause 5.

5.2 The Customer shall on the SOW Effective Date provide to Evident valid, up-to-date and complete approved purchase order information acceptable to Evident and any other relevant valid, up-to-date and complete contact and billing details. Evident shall invoice the Customer on the SOW Effective Date for the Fees payable in respect of the SOW Term.

5.3 If Evident has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Evident:

(a) Evident shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Evident's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

5.4 All amounts and fees stated or referred to in the SOW:

(a) are non-cancellable and non-refundable; and

(b) are exclusive of value added tax, which shall be added to Evident's invoice(s) at the appropriate rate.

6. CUSTOMER'S MARKS

6.1 The Customer shall grant Evident a licence to use the Customer's Marks on the Deliverables created in connection with the SOW and for use in advertising or promotion in relation to Evident's business.

6.2 Evident retains full editorial discretion in its research publications and may reference the Customer and the Customer’s Marks without the Customer’s approval. Such publications are based solely on publicly available information and are produced independently of the Services under the SOW.

6.3 All rights not expressly granted to Evident under the SOW are reserved to the Customer. Evident acknowledges and agrees:

(a) that the Customer is the owner or controller of all rights in the Customer's Marks;

(b) not to use the Customer's Marks or any part of them or anything confusingly similar to them in its trading or corporate name or otherwise, except as authorised under the SOW;

(c) not to do anything which would knowingly adversely affect any of the Customer's rights in relation to the Customer's Marks; and

(d) to notify the Customer of any suspected infringement of the Customer's Marks, but not to take any steps or action whatsoever in relation to that suspected infringement.

7. INTELLECTUAL PROPERTY

7.1 In relation to the Deliverables:

(a) Evident and its licensors shall retain ownership of all IPRs in the Deliverables including any existing IPRs owned and/or licensed to Evident;

(b) Evident grants the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Term to copy and modify the Bespoke Deliverables for the purpose of receiving and using the Services and the Bespoke Deliverables in its business;

(c) the Customer shall not (unless it obtains Evident's prior written consent) sub-license, assign or otherwise transfer the rights granted in this clause 7.1 or under this Agreement to its Affiliates, customers and/or any third parties.

8. TERMINATION

8.1 Without affecting any other right or remedy available to it, either party may terminate the SOW with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any other term in these Service T&Cs or the SOW, and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so; or

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986.

8.2 Without affecting any other right or remedy available to it, Evident may terminate the SOW with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the SOW on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment.

8.3 Any provision of the SOW including these Services T&Cs that expressly or by implication is intended to come into or continue in force on or after termination of the SOW shall remain in full force and effect.

8.4 Termination of the SOW shall not affect any of the 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 terms which existed at or before the date of termination.

9. LIMITATION OF LIABILITY

9.1 Except for the indemnity obligations hereunder, in no event whatsoever shall either party be liable to the other hereunder for any incidental, indirect, special, consequential or punitive damages or lost profits under any tort, contract, strict liability or other legal or equitable theory arising out of or pertaining to the subject matter of these Service T&Cs, the SOW or the Services, even if said party has been advised of the possibility of or could have foreseen such damages.

9.2 The Customer shall indemnify Evident for any claim in contract, tort, misrepresentation, restitution or otherwise, arising in connection with:

(a) any breach of the provisions contained in Clause 4;

(b) the Customer's performance or contemplated performance under the SOW;

(c) the enforcement of these Service T&Cs or the SOW;

(d) any claim made by a third party against Evident for actions taken by the Customer as a result of the receipt or use of the Deliverables;

(e) any claim made against Evident for actual or alleged infringement of a third party's intellectual property right arising out of in connection with Customer's Marks.

9.3 Subject to clause 9.1, Evident's total aggregate liability under the SOW in contract, tort, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the SOW shall be limited to the total Fees paid for Service during the 12 months immediately preceding the date on which the claim arose.

10. DATA PROTECTION

10.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

10.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller, and Evident is the Processor.

10.3 Without prejudice to the generality of Clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Evident for the duration and purposes of the SOW.

10.4 Without prejudice to the generality of Clause 10.1, Evident shall, in relation to any Personal Data processed in connection with the performance by Evident of its obligations under the SOW:

(a) process that Personal Data only on the documented written instructions of the Customer unless Evident is required by any applicable law to otherwise process that Personal Data;

(b) ensure that it has in place appropriate technical and organisational measures in place to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

(d) transfer Personal Data outside of the UK as required by the SOW provided that Evident shall ensure that all such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Customer shall promptly comply with any reasonable request of Evident, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer);

(e) provide reasonable assistance to the Customer, at the Customer's cost, in ensuring its compliance with its obligations under the Data Protection Legislation; and

(f) notify the Customer without undue delay upon becoming aware of a Personal Data Breach.

10.5 The Customer consents to Evident appointing any third-party processor of Personal Data under the SOW.

10.6 Outcomes Data shall be used for the following purposes only:

(a) Creation of a confidential diagnostic report to be shared only with the Customer;

(b) To be aggregated and anonymised for the purposes of confidential diagnostic reports with other Evident customers;

(c) To be aggregated and anonymised for the purposes of identifying industry trends, to be released in public facing reports.

For the avoidance of doubt, any such data used by Evident for public reporting shall be aggregated and anonymised in a manner that ensures it cannot be reasonably linked back to the Customer, its business operations, or any of its employees, agents, or affiliates. Evident will use industry-standard methods to anonymise the data before any public disclosure, and under no circumstances will any information be released that could directly or indirectly identify the Customer.

10.7 The following shall apply in regards to Outcomes Data:

(a) All Outcomes Data provided by the Customer shall remain the sole and exclusive property of the Customer. The Customer retains all rights, title, and interest in the Outcomes Data.

(b) Any Evident IPR produced by Evident using or derived from the aggregated Outcomes Data shall remain the exclusive property of Evident. This includes any analysis, reports, or other deliverables generated by Evident.

(c) The Customer may, at any time, request the withdrawal of the Outcomes Data from Evident’s systems. Notwithstanding such withdrawal, any Deliverables or Evident IPR already produced prior to the withdrawal shall remain the property of Evident.

10.8 To ensure delivery of the ‘Outcomes Benchmark’ product stated in the Services description of the SOW, the following shall apply in regards to Data Protection:

(a) Evident will be responsible for providing the Customer with a method for Data Transfer, hereafter known as the ‘Data Transfer Method’.

(b) Evident will be solely responsible for procuring, maintaining and securing network connections and telecommunications links in relation to the Data Transfer Method, and are responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Data Transfer Method provided by Evident.

(c) Evident will not be responsible for any problems, conditions, delays, delivery failures and all other loss or damage where the Customer has transferred data outside of the agreed Data Transfer Method.

(d) The Customer shall still be solely responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

(e) Clause 10 of the Service T&Cs shall still apply in regards to Data Protection.

11. USERS

11.1 In relation to the Authorised Users, the Customer undertakes that:

(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;

(c) each Authorised User shall keep their login credentials, authentication links, or other means of access provided to them for their use of the Services confidential and shall not share them with any other individual or third party;

(d) no Authorised User with access to the Index or Outcomes Dashboard shall be an external consultant whose role involves providing professional services to third parties or otherwise using or analysing the data for the benefit of entities other than the Customer (collectively "Consultants"). The Customer shall provide accurate job titles, names, and email addresses for all Authorised Users and warrants that no Consultant is granted access to the Index or Outcomes Dashboard.

11.2 If Evident reasonably determines that a Consultant has been granted access to the Index or Outcomes Dashboard in breach of clause 11.1(d), Evident may, without prejudice to any other rights or remedies, immediately suspend or terminate access to the Services for the relevant Authorised User(s). A breach of clause 11.1(d) shall constitute a material breach of these Service T&Cs.

12. GENERAL

12.1 Confidentiality.

(a) Each party shall take reasonable steps to ensure that information or materials that the other party specifically identifies as proprietary or confidential information (“Confidential Information”) is not disclosed to any third party. Confidential Information does not include information known to the receiving party prior to disclosure by disclosing party, information that is publicly known or information available from or disclosed by a third party not bound in a confidential relationship with the disclosing party. Each party, as a disclosing party, shall inform the other, as a receiving party, of all requests for or inquiries into the disclosing party’s Confidential Information by third parties and shall only provide same when legally obliged to do so after notice to the disclosing party.

(b) Each party may disclose the other party's Confidential Information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the SOW. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 12.1; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under the SOW.

(d) The confidentiality obligations set out in this clause 12.1 shall survive termination of the SOW for a period of five (5) years.

12.2 Force majeure. Neither party shall be liable for any delay or failure to carry or make continuously available its obligations under the SOW if such delay or failure is due to any cause beyond such party’s control including without limitation restrictions of law or regulations, labour disputes, acts of God, acts of terrorism or war, telecommunications, network or power failures or interruptions, or mechanical or electronic breakdowns. The affected party shall promptly notify the other of the force majeure event and use reasonable efforts to mitigate its effects.

12.3 Entire agreement.

(a) These Service T&Cs and the SOW constitute the entire agreement between the Parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter. Each party acknowledges that in entering into the SOW it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Service T&Cs or the SOW.

(b) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Service T&Cs or the SOW.

12.4 Variation. No variation of the SOW shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

12.5 Order of Precedence. In the event of any conflict or inconsistency between these Service T&Cs and any related documents, these Service T&Cs shall govern and control, except where a SOW explicitly modifies specific provisions of these Service T&Cs by referencing those provisions; such modifications shall apply solely to that SOW. If the Customer issues a purchase order for the Services, these Service T&Cs shall prevail over any conflicting terms in such purchase order.

12.6 Waiver.

(a) A waiver of any right or remedy under these Service T&Cs, the SOW or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b) A failure or delay by a party to exercise any right or remedy provided under these Service T&Cs, the SOW or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Service T&Cs, the SOW or by law shall prevent or restrict the further exercise of that or any other right or remedy.

12.7 Assignment. Neither party shall assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the SOW, without the prior written consent of the other party.

12.8 No Partnership or agency. Nothing in these Services T&Cs or the SOW is intended to or shall operate to create a partnership between the Parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

12.9 SOW in full force and effect. The SOW shall be in full force and effective upon the Customer's signature.

12.10 Severance. If any provision or part-provision of the SOW is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.10 shall not affect the validity and enforceability of the rest of the SOW.

12.11 Notices.

(a) Any notice given to a party under or in connection with the SOW shall be in writing and shall be sent by email to the following addresses: [email protected] and the Customer's email address listed in the SOW.

(b) Any notice shall be deemed to have been received: if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

Clause 12.11 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. In such circumstances, notice shall be in writing and shall be delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office.

12.12 Third party rights. The SOW does not give rise to any rights under the SOW (Rights of Third Parties) Act 1999 to enforce any term of the SOW.

12.13 Governing law. The SOW, these Service T&Cs, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England.

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