Shepper General Terms and Conditions

1. INTERPRETATION

1.1 In these Standard Conditions:

“Asset” means the property or other asset in respect of which the Customer requests Shepper to carry out or provide the Service as set out in the SOW;

“Applicable Law” all applicable laws, statutes, regulations and codes from time to time in force;

“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

“Contract” means the contract between the Customer and Shepper comprising the SOW and these Standard Conditions;

“Customer” means the customer set out in the SOW;

“Customer Materials” means all documents, images, drawings, specifications, data and other materials supplied by the Customer to Shepper;

“Dispute” any dispute arising under or in relation to the Contract;

“Fees” means the fees payable by the Customer to Shepper under the Contract, as set out in the SOW;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business 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 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;

“Term” means the term set out in the SOW;

“Service Levels” means the service levels (if any) set out in the SOW;

“Services” means the services to be provided by Shepper to the Customer as set out in the SOW;

“Shepherd” means a person employed or engaged by Shepper to carry out the Services;

“Shepper IPRs” means all Intellectual Property Rights subsisting in the Service (including but not limited to the Deliverables), excluding any Customer Materials incorporated in them;

“SOW” means the statement of work agreed between the Customer and Shepper; and

“Standard Conditions” means these general terms and conditions.

1.2 In these Standard Conditions:

1.2.1 clause headings are inserted for ease of reference only and do not affect construction;

1.2.2 words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice-versa, words importing the singular shall be treated as importing the plural and vice-versa, and words importing whole shall be treated as including a reference to any part thereof;

1.2.3 a reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract;

1.2.4 a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision;

1.2.5 defined terms in these Standard Conditions shall have the same meaning in the SOW;

1.2.6 in the event of any conflict or inconsistency between these Standard Conditions and any terms set out in the SOW, the terms in the SOW shall prevail; and

1.2.7 a reference to “writing” or “written” includes email.

1.3 The terms of the Contract apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2. SERVICE

2.1 Shepper shall, during the Term, provide the Service to the Customer on and subject to the terms of this Contract.

2.2 The Customer may request to make an Order by contacting Shepper in accordance with the order procedure agreed in writing between the parties.

2.3 Shepper shall:

2.3.1 perform the Service with reasonable care and skill;

2.3.2 use all reasonable endeavours to perform the Service in accordance with the SOW and the Service Levels;

2.3.3 observe all lawful and reasonable health and safety rules, regulations and security requirements that apply at any of the Customer’s premises and have been communicated to Shepper in writing, provided that Shepper shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.

2.4 Shepper shall use all commercially reasonable endeavours to carry out the Services within any agreed timeframes. However, time shall not be of the essence in performing the Services.

2.5 If Shepper’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Shepper shall:

2.5.1 not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

2.5.2 be entitled to payment of the Fees despite any such prevention or delay; and

2.5.3 be entitled to recover any additional costs, charges or losses Shepper sustains or incurs that arise directly or indirectly from such prevention or delay.

2.6 During the term of the Contract and for a period of twelve months’ following termination of the Contract, the Customer agrees not to request the performance of the Service or any other service substantially similar to the Service from Shepherds directly or in any manner other than through Shepper.

2.7 Unless otherwise agreed in writing, the Services are performed solely for the benefit of the Customer. No liability is accepted to any third party.

2.8 Shepper may make any changes to the Services which are necessary to comply with any Applicable Law or safety requirement, or which do not materially affect the nature or quality of the Service, and Shepper shall notify the Customer in any such event.

2.9 Shepper shall not be 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.

2.10 Subject at all times to clause 9 (Confidentiality), this Contract shall not prevent Shepper from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products, data and/or services which are similar or ancillary to those provided under this Contract whether or not such services or data are developed as a result of the Services.

2.11 Except for the warranties and representations set out in this clause 2:

2.11.1 Shepper gives no other warranties and makes no other representations in relation to the Services; and

2.11.2 all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

3. CUSTOMER’S OBLIGATIONS

3.1 The Customer shall:

3.1.1 co-operate with Shepper in all matters relating to the Services;

3.1.2 provide, in a timely manner, such information as Shepper may require, and ensure that it is accurate and complete in all material respects;

3.1.3 obtain and shall maintain all necessary licences, consents, and permissions necessary for Shepper, its subcontractors, consultants and agents (including Shepherds) to perform their obligations under this Contract, including without limitation the Services;

3.1.4 use the Service for lawful purposes only and shall not use the Service (a) in any way that breaches any Applicable Laws; or (b) in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect.

3.2 The Customer further acknowledges and agrees that:

3.2.1 the Customer shall not at any time communicate directly with a Shepherd in relation to the Service or other similar Service (unless practically necessary for the Services to be delivered);

3.2.2 if fulfilment of the Services requires access to private property, the Customer shall be responsible for obtaining consent and permission from all relevant parties to enable such access. The Customer shall indemnify Shepper in respect of any and all claims, liabilities, costs, expenses, damages or losses which Shepper may suffer or incur in connection with the access to private property, other than where caused by the default or negligence of Shepper;

3.2.3 where the Service is to be performed in a remote location and/or with restricted access (including but not limited to military bases, mountainous locations, island, or locations with limited population densities) subject to Shepper notifying the Customer, the Customer may be charged an additional fee, including when return trips are required, in addition to the total Fees for the Services.

3.3 The Customer warrants that it is the legal owner or mortgagee of the Asset or is otherwise legally authorised to instruct Shepper to carry out the Services in respect of the Asset and upon Shepper’s request the Customer will promptly produce evidence of the Customer’s ownership or authority to request the Service in respect of the Asset.

4. FEES AND PAYMENT

4.1 In consideration for the provision of the Services, the Customer shall pay Shepper the Fees, and any additional amounts payable by the Customer under the Contract, in accordance with this clause 4.

4.2 All amounts payable by the Customer exclude value added tax (“VAT”), which the Customer shall additionally pay to Shepper at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

4.3 Shepper shall submit invoices for the amounts payable plus VAT (if applicable) to the Customer monthly in arrears. Each invoice shall include all reasonable supporting information required by the Customer.

4.4 The Customer shall pay each invoice due and submitted to it by Shepper within 14 days of receipt to a bank account nominated in writing by Shepper.

4.5 If the Customer fails to make any payment due to Shepper under the Contract by the due date for payment, then, without limiting Shepper’s remedies under clause 11:

4.5.1 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 clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;

4.5.2 Shepper may suspend all or part of the Services until such payment has been made in full.

4.6 All amounts due under the Contract from the Customer to Shepper shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5. CHANGE REQUEST

5.1 If the Customer wishes to change the scope or execution of any part of the Services, the Customer shall submit details of the requested change to Shepper in writing.

5.2 Where a written request for such a change is received by Shepper, Shepper shall, within a reasonable time after receipt of such request, notify the Customer in writing of:

5.2.1 the likely time frame required to implement the requested change;

5.2.2 any variations of the Fees arising from the requested change;

5.2.3 the likely effect of the requested change on any agree timescales;

5.2.4 the likely effect of the requested change on the Service Levels; and

5.2.5 any other impact of the requested change on the Contract or on the particular Order (as applicable).

5.3 The Customer shall notify Shepper in writing either that it accepts or rejects the requested change on the terms notified by Shepper within a reasonable time after receipt of such notification.

5.4 The parties acknowledge and agree that there shall be no change to the scope or execution of the Service, unless both parties accept the requested change.

5.5 Where both parties accept the requested change, the requested change shall take place in accordance with the likely time frame required to implement the requested change set out in clause 5.2.1.

6. CANCELLATIONS

6.1 Shepper may cancel the Services at any time by giving written notice to the Customer if (i) the Customer breaches any of the terms of the Contract; or (ii) Shepper has any other commercially valid reason to do so.

6.2 The Customer may cancel the Services in accordance with the terms set out in the SOW. If the Customer cancels an Order with less than 24 hours’ notice, Shepper will be entitled to charge and the Customer shall pay the full Fee for the cancelled Order.

7. LIABILITY

7.1 The Customer acknowledges and agrees that Shepper nor its subcontractors, consultants and /or agents (including Shepherds) do not possess any particular technical skill, knowledge, or expertise. Except as expressly and specifically provided in this Contract:

7.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Shepper shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Shepper by the Customer in connection with the Services, or any actions taken by Shepper at the Customer’s direction;

7.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Contract; and

7.1.3 the Services are provided to the Customer on an “as is” basis.

7.2 Nothing in this Contract excludes the liability of Shepper:

7.2.1 for death or personal injury caused by Shepper’s negligence;

7.2.2 for fraud or fraudulent misrepresentation; or

7.2.3 for any other liability which cannot be excluded or limited by law.

7.3 Subject to clause 7.1, Shepper’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract or in respect of an Inspection is limited as follows:

7.3.1 in respect of loss of or damage to physical or real property, including the Asset, directly caused by the Shepherd when carrying out an Inspection and which is covered by Shepper’s public liability insurance, £1,000,000 per claim or series of claims resulting from or attributable to a single source or the same original, repeated or continuing cause;

7.3.2 for any other loss or damage relating to the Services, an amount equal to the total Fees actually paid for the Services by the Customer to Shepper in the 12 months prior to liability arising.

7.4 Subject to clause 7.1, Shepper will not in any event be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for any:

7.4.1 loss or damage which was not reasonably foreseeable at the time of the Order, regardless as to how such loss or damage was caused;

7.4.2 loss of profits, sales, business, or revenue;

7.4.3 loss or corruption of data or information;

7.4.4 pure economic loss;

7.4.5 business interruption;

7.4.6 loss of anticipated savings;

7.4.7 loss of business opportunity, goodwill or reputation; or

7.4.8 special, indirect or consequential loss or damage.

8. DATA PROTECTION

8.1 In this clause 8, the following terms shall have the following meanings:

8.1.1 “controller”, “processor”, “data subject”, “personal data”, “processing” (and “process”) and “special categories of personal data” shall have the meanings given in Applicable Data Protection Law; and

8.1.2 “Applicable Data Protection Law” means (i) the Data Protection Act 2018 (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK (iii) any successor legislation to the Data Protection Act 2018 and the GDPR and (iv) any 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) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

8.2 The Customer (the controller) appoints Shepper as a processor to process the personal data described in this Contract (the “Data”) for the purposes described in this Contract (the “Permitted Purpose”). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. If Shepper becomes aware that processing for the Permitted Purpose infringes Applicable Data Protection Law, it shall promptly inform the Customer.

8.3 Shepper shall not transfer the Data outside of the European Economic Area (“EEA”) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law.

8.4 Shepper shall ensure that any person it authorises to process the Data (an “Authorised Person”) shall protect the Data in accordance with Shepper’s confidentiality obligations under this Contract.

8.5 Shepper shall implement technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident”).

8.6 the Customer consents to Shepper engaging third party subprocessors to process the Data for the Permitted Purpose provided that: (i) Shepper maintains an up-to-date list of its subprocessors at https://shepper.com/customer-privacy-policy/ which it shall update with details of any change in subprocessors at least seven (7) days’ prior to any such change; (ii) Shepper imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Applicable Data Protection Law; and (iii) Shepper remains liable for any breach of this clause that is caused by an act, error or omission of its subprocessor. The Customer may object to Shepper’s appointment or replacement of a subprocessor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Shepper will appoint or replace the subprocessor.

8.7 Shepper shall provide reasonable and timely assistance to the Customer (at the Customer’s expense) to enable the Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Shepper, Shepper shall promptly inform the Customer providing full details of the same.

8.8 Shepper shall provide reasonable cooperation to the Customer (at the Customer’s expense) in connection with any data protection impact assessment that may be required under Applicable Data Protection Law.

8.9 If it becomes aware of a confirmed Security Incident, Shepper shall inform the Customer without undue delay and shall provide reasonable information and cooperation to the Customer so that the Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. Shepper shall further take any such reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep the Customer informed of all material developments in connection with the Security Incident.

8.10 Upon termination or expiry of this Contract, Shepper shall (at the Customer’s election) destroy or return to the Customer all Data in its possession or control. This requirement shall not apply to the extent that Shepper is required by Applicable Law to retain some or all of the Data, or to Data it has archived on back-up systems, in which event Shepper shall securely isolate and protect from any further processing except to the extent required by such law until deletion is possible.

8.11 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

8.12 Shepper shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Shepper to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 8.6).

8.13 Shepper shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data available at https://shepper.com/customer-privacy-policy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Shepper in its sole discretion.

9. CONFIDENTIALITY

9.1 The parties will protect each other’s confidential information concerning the business, affairs, customers, clients or suppliers of the other party (“Confidential Information”) from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.

9.2 The Customer and Shepper may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Contract and may disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Shepper and its licensors shall retain ownership of all the Shepper IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.

10.2 Shepper grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, license to copy the Shepper IPRs for the purpose of receiving and using the Services and the Deliverables in the Customer’s business during the term of the Contract.

10.3 The Customer grants Shepper a fully paid-up, worldwide, non-exclusive, royalty-free, license to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Service to the Customer in accordance with the Contract.

11. TERMINATION

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

11.1.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

11.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

11.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

11.2 Without affecting any other right or remedy available to it, Shepper may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

11.3 On termination of the Contract for whatever reason:

11.3.1 the Customer shall immediately pay to Shepper all of Shepper’s outstanding unpaid invoices and interest and, in respect of Service supplied but for which no invoice has been submitted, Shepper may submit an invoice, which shall be payable immediately on receipt;

11.3.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and

11.3.3 termination of the Contract 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 the Contract which existed at or before the date of termination.

12. ALTERNATIVE DISPUTE RESOLUTION

12.1 If a Dispute arises, then except as expressly provided in these Standard Conditions, the parties shall follow the procedure set out in this clause 12:

12.2 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, a director of Shepper and a director of the Customer shall attempt in good faith to resolve the Dispute;

12.3 if the parties are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within fourteen (14) days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR Notice”) to the other party to the Dispute, referring the Dispute to mediation. A copy of the ADR Notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than thirty-five (35) days after the date of the ADR Notice.

12.4 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clauses 13.10 and 13.11, which shall apply at all times.

13. GENERAL

13.1 Entire agreement: The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract and in making an Order 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.

13.2 Variation: No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.3 Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

13.3.1 A failure or delay by a party to exercise any right or remedy provided under the Contract 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 Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

13.4 Force majeure: Shepper shall have no liability to the Customer under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Shepper or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, epidemic, pandemic, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration. In such event, the time for performance of Shepper’s obligations under the Contract shall be reasonably extended.

13.5 Assignment and other dealings: The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Shepper’s prior written consent. Shepper may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

13.6 No partnership or agency: Nothing in the Contract constitutes, or shall be deemed to constitute, a partnership between the parties nor make any party the agent of another party.

13.7 Severance. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

13.8 Notices. Any notice required or authorised to be given under the Contract shall be in writing and may be served by personal delivery; by recorded delivery post; or by email. Notices shall be deemed served: in the case of a notice delivered personally, at the time of delivery; in the case of a notice sent by recorded delivery post, on the second Business Day following the day of posting; in the case of a notice sent by email, one hour after transmission, or if not sent on a Business Day, on the next Business Day.

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

13.10 Governing law. The Contract, 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 and Wales.

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