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Terms​ ​of​ ​Use

TERMS OF USE

WHEREAS:

1. The Supplier supplies the Services specified in Schedule 1 of this Agreement.

2. The Customer wishes to purchase the Services from the Supplier.

3. The Supplier is willing to supply the Services to the Customer on the terms set out in this Agreement.

IT IS AGREED as follows:

1.Definitions and Interpretation

1.1 In this Agreement, 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 stated as the Commencement Date in Schedule 1 or, if not explicitly stated, the date that Schedule 1 is signed;

“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 this Agreement (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);

“Goods” means hardware or equipment purchased or rented by the Customer from Shepherd Network Ltd under this Agreement which may be used in the provision of the Services, as detailed in Schedule 1, quotation, order form or other document agreed between the parties from time to time;

“Month” means a calendar month;

“Rental Charge” means the monthly non-usage dependent charge for Goods, as specified in Schedule 1;

“RPI Increases” means the increase in the Rental Charge from March each year based on an amount equal to the increase in the Retail Price Index published in January of the same year;

“Services” means the Services to be provided by the Supplier detailed in Schedule 1;

“Shepherd Intellectual Property” means patents, rights to Works, copyright and related rights, trade marks, 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 this Agreement as set out in Clause 10; and

“Termination Fee” means the monthly Rental Charge for all Goods multiplied by the remaining number of part or whole months in the Term; and any shortfall between the actual Charges paid by the Customer and the Rental Charge for the Goods and Services for the Term from commencement;

“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 this Agreement to:

a) words in the singular include the plural and in the plural include the singular;

b) a reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established; 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, the Supplier shall, throughout the Term of this Agreement, use commercially reasonable efforts to provide the Services to the Customer as specified in Schedule 1.

2.2 The Supplier shall provide the Services with reasonable skill and care.

2.3 The Supplier 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 provided in Schedule 1.

2.4 The Supplier 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 The Supplier shall use all 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 due that may be due as a result of such changes.

3. Customer’s Obligations Pertaining To Services

3.1 The Customer shall provide all pertinent information to the Supplier that is necessary for the Supplier’s provision of the Services.

3.2 The Customer may, from time to time, issue reasonable instructions to the Supplier in relation to the Supplier’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in Schedule 1.

3.3 In the event that the Supplier 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 the Supplier 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 the Supplier has access to the same at the times to be agreed between the Supplier 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 3 shall not be the responsibility or the fault of the Supplier.

4. Fees & Payment

4.1 The sums due for the Services shall be those as set out in the Supplier’s attached price list in Schedule 1.

4.2 The Supplier shall be entitled to review its Fees for the Services at the end of each Year.

4.3 The Supplier shall be entitled to invoice the Customer for any additional expenses resulting from the Customer’s instructions, information or lack thereof.

4.4 The Supplier shall invoice the Customer by the 5th day of each month for the Fees due in respect of all Services, Rental Charges and Goods provided during the previous month and the Customer shall pay the sums shown to be due by direct debit to the Suppliers bank account, within 14 Business Days from the date on which each invoice is submitted by the Supplier.

5. Customer’s Default

5.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:

5.1.1 cancel the order or suspend any further deliveries or provision of Goods and Services to the Customer;

5.1.2 appropriate any payment made by the Customer to such of the Goods and/or Services (or the goods and/or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and

5.1.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 5% per annum above Bank of England base rate, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.2 This condition applies if:

5.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;

5.2.2 the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;

5.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;

5.2.4 the Customer ceases, or threatens to cease, to carry on business; or

5.2.5 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

5.3 If sub-Clause 5.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. Alternatively, the Customer must allow collection for any unpaid Goods.

6. Confidentiality

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 this Agreement:

6.1.1 keep confidential all Confidential Information;

6.1.2 not disclose any Confidential Information to any other party;

6.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement; and

6.1.4 not make any copies of, record in any way or part with possession of any Confidential Information.

6.2 Either Party may:

6.2.1 disclose any Confidential Information to:

6.2.1.1 any sub-contractor or supplier of that Party;

6.2.1.2 any governmental or other authority or regulatory body; or

6.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause

6.2.1.4 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 6, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; 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 this Agreement, 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. Ownership

7.1 The Supplier shall retain ownership of all Shepherd Intellectual Property;

7.2 The Supplier grants the Customer a non-transferable licence for the Term of this Agreement to use Shepherd Intellectual Property for the purpose of utilising the delivered Services;

7.3 Notwithstanding anything to the contrary, the Supplier 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 the Supplier 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.

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 this Agreement.

8.2 Nothing in this Agreement shall limit the liability of either Party to the other for fraud or fraudulent misrepresentation, for deliberate default or wilful misconduct, or for death or personal injury arising out of negligence.

8.3 Notwithstanding anything to the contrary, Supplier 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 the either Party for damages arising out of or in connection with this Agreement (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) the of all amounts paid or payable by Customer in connection with this Agreement.

9. Force Majeure

9.1 No Party to this Agreement shall be liable for any failure or delay in performing their 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 This Agreement shall come into force on the date of signature on Schedule 1 and shall continue for a Term of one year or more as stated in Schedule 1 from that date, subject to the provisions of this Clause 10.

10.2 Either Party shall have the right, exercisable by giving not less than one months written notice to the other at any time prior to the expiry of the term specified in sub-Clause 10.1 (or any further period for which this Agreement has been extended pursuant to this provision) to extend this Agreement for a further period of one year.

10.3 Either Party may terminate this Agreement by giving to the other not less than one months written notice, to expire on or at any time after a minimum of three months.

10.4 Either Party may immediately terminate this Agreement by giving written notice to the other Party if:

10.4.1 the other Party commits a breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 14 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied; or

10.4.2 that other Party ceases, or threatens to cease, to carry on business.

10.5 The rights to terminate this Agreement 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.

11. Effects of Termination

Upon the termination of this Agreement for any reason:

11.1 any sum owing by either Party to the other under any of the provisions of this Agreement, including the Termination Fee, the Fees for the performance of the Services, and any associated costs or expenses up to the date of Termination, shall become immediately due and payable;

11.2 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 this Agreement which existed at or before the date of termination; and

11.3 each Party shall (except to the extent referred to in Clause 10) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

12. Costs

Subject to any provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.

13. Assignment and Sub-Contracting

The Supplier 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 this Agreement, be deemed to be an act or omission of the Supplier.

14. Entire Agreement

This Contract, Schedule 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.

15. Dispute Resolution

15.1 The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

15.2 The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 15 shall be final and binding on both Parties.

16. Law and Jurisdiction

This Agreement (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.

Schedule

The Schedule will contain specific information on the following for each customer:

Term of Contract for Services and Goods

Rental Charge for Goods (to include connectivity & maintenance fees)

Charge for Services

Licence Fees

Charges for Ad Hoc Services

Signature of Agreement