(A) Shepherd Network Limited (Shepherd) supplies services (the Services).
(B) Shepherd and the Customer have agreed to enter into a contractual relationship pursuant to a Contract which incorporates these Terms.
IT IS AGREED as follows:
- Definitions and Interpretation1.1. In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the UK;
“Commencement Date” means the date agreed by both parties to the Contract on which the Contract comes into effect;
“Confidential Information” means, in relation to either party, information which is disclosed to that party by the other party pursuant to or in connection with the Contract (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Contract” means the relevant End User Agreement, Partnership Agreement or other document specifying the Services and other relevant matters relating to the relationship between the Customer and Shepherd and incorporating these Terms;
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
“Hardware” means hardware supplied by Shepherd;
“Month” means a calendar month;
“RMA” means return merchandise authorisation;
“Services” means the provision of Shepherd’s on-going monitoring and alerting analytics including (without limitation) the provision of hardware, consultancy, training and installation labour with associated connectivity management;
“Shepherd Equipment” means any equipment, including tools, systems, cabling or facilities, provided by Shepherd, its agents, subcontractors or consultants to the Customer and used directly or indirectly in connection with the supply of the Services;
“Shepherd Intellectual Property” means patents, rights to works, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or 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 may now or in the future subsist in any part of the world;
“Term” means the term of the relevant Contract as set-out therein;
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
“Year” means a period of twelve months commencing on the Commencement Date and each consecutive period of twelve months thereafter and “Yearly” has a corresponding meaning.
1.2 Unless the context otherwise requires, each reference in these Terms to:
(a) words in the singular include the plural and in the plural include the singular;
(b )references to a “party” or “parties” shall be deemed to be to the parties to the relevant Contract; and
(c) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Provision of Services
2.1. With effect from the Commencement Date, Shepherd shall, throughout the Term of the relevant Contract, use commercially reasonable efforts to provide the specified Services to the Customer.
2.2. Shepherd shall provide the Services with reasonable skill and care.
2.3. Shepherd shall act in accordance with all reasonable instructions given to it by the Customer provided that such instructions are compatible with the specification of Services.
2.4 Each party shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
2.5 If a Customer wishes to request a change to the Services, it shall apply to Shepherd in writing detailing the change requested. Such change shall only become binding on Shepherd when and if Shepherd accepts such change in writing. Shepherd shall use reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Customer, subject to the Customer’s acceptance of any related reasonable changes to the sums that may be due as a result of such changes.
2.6 Shepherd will manage any RMA in respect of Hardware. The Customer will be responsible for the removal and return to Shepherd of any such Hardware.
2.7 Shepherd will manage the payment of any connectivity contracts relating to the Contract on behalf of the Customer.
2.8. Shepherd shall have the right (at its sole discretion) to use details of the Services, and a summary of the work it is undertaking or has undertaken for the client under the Contract, in any case study or report it develops for research or marketing purposes and shall be permitted to use the Customer’s name and/or logo in such report or study. The Customer may, by notice in writing to Shepherd, elect for its name or logo not to be used in any report or study, in which case Shepherd shall have the right to increase the fees payable for the Services.
2.9. Shepherd reserves the right, at any time, to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. The Customer agrees that Shepherd shall not be liable to it or to any third party for any modification, suspension or discontinuance of the Services.
3. Customer’s Obligations
3.1 The Customer shall, as soon as reasonably practicable, provide all pertinent information to Shepherd that is necessary for Shepherd’s provision of the Services.
3.2 Subject to Clause 5.3, the Customer may, from time to time, issue reasonable instructions to Shepherd in relation to Shepherd’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Contract.
3.3 In the event that Shepherd requires the decision, approval, consent or any other communication from the Customer in order to continue with the provision of the Services or any part thereof at any time, the Customer shall provide the same in a reasonable and timely manner.
3.4 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities, regulatory bodies or similar, it shall be the Customer’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
3.5 If the nature of the Services requires that Shepherd has access to the Customer’s premises or any other location, access to which is lawfully controlled by the Customer, the Customer shall ensure that Shepherd has access to the same at the times to be agreed between Shepherd and the Customer as required.
3.6 Any delay in the provision of the Services resulting from the Customer’s failure or delay in complying with any of the provisions of this Clause shall not be the responsibility or the fault of Shepherd.
4. Data Protection
4.1 Each party shall comply with all applicable requirements of the Data Protection Legislation. This sub-Clause 4.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this sub-Clause Applicable Law means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
4.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Shepherd is the processor.
4.3 Without prejudice to the generality of sub-Clause 4.1, the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Shepherd for the duration and purposes of the Contract.
4.4. The Customer consents to Shepherd appointing Amazon Web Services as a third party processor of personal data under the Agreement or such other third party processer of personal data as Shepherd shall (in its absolute discretion) determine from time to time. Shepherd shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this sub-Clause.
5. Fees & Payment
5.1 The fees due for the Services shall be as set out in the Contract.
5.2 Shepherd shall be entitled to review its fees and charges for the Services and to increase these at the end of each Year.
5.3 Shepherd shall be entitled to invoice the Customer for any additional expenses resulting from the Customer’s instructions, information or lack thereof.
5.4 Shepherd shall invoice the Customer by the 5th day of each Month for the fees and charges due in respect of all Services provided during the previous Month and the Customer shall pay the sums shown to be due by direct debit to Shepherd’s bank account, within 14 Business Days from the date on which each invoice is submitted by Shepherd.
5.5 If the Customer fails to make a payment due to Shepherd under this agreement by the due date, then, without limiting Shepherd’s remedies under Clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this sub-Clause 5.5 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
6.1 Each party undertakes that, except as provided by sub-Clause 6.2 or as authorised in writing by the other party, it shall, at all times during the continuance of the Contract:
6.1.1. keep confidential all Confidential Information;
6.1.2 not disclose any Confidential Information to any third party; and
6.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Contract.
6.2 Either party may:
6.2.1. disclose any Confidential Information to:
a. any sub-contractor or supplier of that party;
b. any governmental or other authority or regulatory body if and to the extent required by law or applicable regulation;
c. any of its group companies; or
d. any employee or officer of that party or of any of the aforementioned persons, parties or bodies,
in each case to such extent only as is necessary for the purposes contemplated by the Contract and/or these Terms, or as required by applicable law or regulation. In each case the party wishing to disclose such Confidential Information shall (to the extent permitted by law) first inform the person, party or body in question that the Confidential Information is confidential and where reasonably practicable obtain from the relevant third party a written confidentiality undertaking on terms no less onerous than this Clause; and
6.2.2. use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that party. In making such use or disclosure, that party must not disclose any part of the Confidential Information which is not public knowledge.
7.1 Shepherd shall retain ownership of all Shepherd Intellectual Property.
7.2 Shepherd grants the Customer a non-transferable, non-exclusive licence for the Term to use Shepherd Intellectual Property for the purpose of utilising the delivered Services.
7.3 Shepherd shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning client data and data derived therefrom), and Shepherd will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Shepherd offerings, and (ii) use and disclose such data solely in aggregate or other de-identified form in connection with its business.
7.4 Shepherd shall retain ownership of all Shepherd Equipment.
8. Limitation of Liability
8.1. Neither party shall be liable to the other, whether in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation for any loss of profit, loss of goodwill, loss of business opportunity, loss of anticipated saving, loss or corruption of any data or information, or any special, indirect or consequential damage or loss that may be suffered by the other party that arises out of or in connection with the Contract.
8.2 Nothing in the Contract or these Terms shall limit the liability of either party to the other for fraud or deliberate default or for death or personal injury arising out of negligence.
8.3 Notwithstanding anything to the contrary, Shepherd shall not be responsible for any loss or damage to Customer property as a result of any failure of the Services.
8.4 The total liability of Shepherd for damages arising out of or in connection with the Contract (whether in contract, tort (including negligence), restitution, for breach of statutory duty or misrepresentation or otherwise) shall not exceed the greater of (a) £1,000 or (b) all amounts actually paid by Customer to Shepherd under the Contract.
9, Force Majeure
No party shall be liable for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
10. Term and Termination
10.1. The Contract shall come into force on the Commencement Date and the Customer agrees that it shall continue for the Term.
10.2 Either party may immediately terminate the Contract by giving written notice to the other party if:
10.2.1. the other party commits a breach of any of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 Business Days of being given written notice giving full particulars of the breach and requiring it to be remedied; or
10.2.2 that other party ceases, or threatens to cease, to carry on business.
10.3 The rights to terminate the Contract given by this Clause 10 shall not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
10.4 Shepherd has the right immediately to terminate the agreement if the Customer fails to pay the Service fee for a period exceeding 30 days from the relevant invoice.
10.5 In the event of termination or expiry of the Contract, the Customer shall immediately return all Shepherd Equipment to Shepherd in good condition and in good working order. In the event that the Customer fails to return such equipment in good condition and/or good working order within 30 days of termination or expiry of the relevant Contract, Shepherd shall be entitled to invoice the Customer for the full new replacement cost of the relevant Shepherd Equipment that has not been returned in such good condition or good working order.
11. Effects of Termination
11.1. Upon the expiry or termination of the Contract for any reason:
11.1.1. any sum owing by either party to the other under any of the provisions of the Contract, including the fees for the performance of the Services, and any associated costs or expenses, shall become immediately due and payable;
11.1.2. termination shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any party may have in respect of any breach of the Contract which existed at or before the date of termination; and
11.1.3. each party shall (except to the extent referred to in Clause 6) immediately cease to use, either directly or indirectly, any Confidential Information, and shall, to the extent reasonably practicable, immediately return to the other party any documents in its possession or control which contain or record any Confidential Information.
11.2. The following Clauses shall survive termination of the Agreement: this Clause and clauses 4, 5, 6, 7, 8, 10.3, 12, 15, 16 and 17.
Subject to any provisions to the contrary each party to the Contract shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Contract.
13. No partnership
Nothing in these terms or in the Contract is intended to or shall be construed as establishing or implying any partnership of any kind between the parties.
14. Assignment and Sub-Contracting
Shepherd shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Contract, be deemed to be an act or omission of Shepherd.
15. Entire Agreement
The Contract (including these Terms) and any attachments or documents included by reference constitute the entire agreement between the Parties with respect to the Services and supersedes all prior understandings or arrangements, whether oral, in writing, or arising from conduct.
16. Dispute Resolution
The Parties shall attempt to resolve any dispute arising out of or relating to the Contract through negotiations between their appointed representatives who have the authority to settle such disputes.
17. Law and Jurisdiction
The Contract and these Terms (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales. The English courts shall have exclusive jurisdiction to determine any dispute arising from the Contract and these Terms.