Modular General Terms & Conditions

1. INTERPRETATION

 

The definitions and rules of interpretation in this clause relate to the Product and Services in this agreement.

1.1. Definitions:

Acceptance: the acceptance or deemed acceptance of the Product by the Customer pursuant to clause 4.

Tests: the tests to be carried out on the Product as set out in clause 4 and as described in Schedule 4.

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

Change Control Procedures: the procedures set out in Schedule 6.

Charges: the charges in respect of the Services set out in Schedule 5, together with any charges arising from the Change Control Procedures.

Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

  • identified as confidential at the time of disclosure; or
  • ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Design Agency: Modular at 91 to 93 Baker Street, Marylebone, London, W1U 6RL.

Effective Date: The date on statement of work the agreement starts

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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 Product and rights to the Product 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.

Materials: the content provided to the Supplier by the Customer from time to time for the Product.

Non-Supplier Defects: those defects described in clause 4.4.

Phase: in relation to the Project Plan, one of the key phases of work identified in the Project Plan.

Project: the provision by the Supplier of the Services as set out in this agreement.

Project Plan: the timetable within which the Supplier will implement the Project as set out in Schedule 1.

Services: the design and development services to be provided pursuant to this agreement as set out in Schedule 3.

 Product Specification: the specification for the    Product set out in Schedule 2.

Third Party Products: those third party software products set out in Schedule 2.

Visitor: a visitor to the your Product or any other Product your company uses our    Product.

Mass customization is a marketing and manufacturing technique that combines the flexibility and personalization of custom-made products with the low unit costs associated with mass production.

Product any product agreed with the client on the statement of work.

Services any services agreed with the client on the statement of work.

Statement of work this is the agreement made between Modular and the Customer which amends this document the Schedules 1 to 4 are also on the statement of work.

1.2.  Clause and schedule headings do not affect the interpretation of this agreement.

1.3.  References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this agreement.

1.4. If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

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

1.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.8. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.9. References to content include any kind of text, information, image, or audio or video material which can be incorporated in a web    Product for access by a Visitor to that web    Product.

1.10.  A reference to writing or written includes fax and e-mail.

 

2. SCOPE OF THE PROJECT

 

The Supplier shall:

  • liaise with the Design Agency in developing the look and feel of the Are limited to Project Plan Schedule (Scope of Work).
  • design, develop and deliver the Product in accordance with the Project Plan Schedule (Scope of Work); and
  • provide the Services.

 

3. CUSTOMER RESPONSIBILITIES

 

3.1.    The Customer acknowledges that the Supplier’s ability to provide the Products and Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of the design specifications provided by the Design Agency and any information and data the Customer provides to the Supplier. Accordingly, the Customer shall:

  •       provide the Supplier with access to, and use of, all information, data and documentation
  •       reasonably required by the Supplier for the performance by the Supplier of its
  •       obligations under this agreement; and

3.2.The Customer shall be responsible for the accuracy and completeness of the Materials on the Products in accordance with clause 11.

 

4. DEVELOPMENT AND ACCEPTANCE OF PRODUCT

 

4.1.  Once the Supplier has completed the design and development of the Products and Services in accordance with the agreement between the parties of the Project Plan in the statement of work, the Supplier shall run the Tests. The procedure set out in this clause 4 shall be repeated in respect the agreed work and any further development works agreed by the parties from time to time.

4.2. The Tests shall test compliance of the Product with the Product Specification. The form and detail of such tests is set out in Schedule 4.

4.3. Acceptance of the Product shall occur when the    Product has passed the Tests.  The Supplier shall notify the customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing.

4.4. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom the Supplier has no responsibility (Non-Supplier Defect), the Product shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect.  The Supplier shall provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay the Supplier in full for all such additional services and products at the Supplier’s then current fees and prices.

4.5. Acceptance of the Product shall be deemed to have taken place upon the occurrence of any of the following events:

  • the Customer uses any part of the Product for any revenue earning purposes or to provide any services to third parties other than for test purposes; or
  • the Customer unreasonably delays the start of the relevant Tests or any retests for a period of seven working days from the date on which the Supplier is ready to commence running such Tests or retests.

 

5. THIRD PARTY PRODUCTS

 

The Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third Party Products is included in the Charges payable pursuant to clause 7.1.

 

6. PROJECT MANAGEMENT

 

6.1. Each party shall a project manager who will:

  • provide professional and prompt liaison with the other party; and
  • have the necessary expertise and authority to commit the relevant party.

6.2. The project managers shall meet at least once every week until Acceptance and thereafter at least once every month. The Customer shall provide minutes of these meetings to the Supplier.

 

7. CHARGES AND PAYMENT

 

The Supplier from the time this agreement is signed by the Customer the Customer will pay  £40,000 (plus VAT) unless stated otherwise in the Statement of work. Payment will take place using Bacs of our bank account please see invoice.

 

8. WARRANTIES

 

8.1. Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

8.2. The Supplier shall perform the Services with reasonable care and skill.

8.3. The Supplier warrants that the Product will perform substantially in accordance with the Product Specification for a period of nine months from Acceptance. If the Product does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Product substantially complies with the Product Specification.

8.4. The warranty set out in clause 8.3 shall not Product to the extent that any failure of the Product to perform substantially in accordance with the Product Specification is caused by any Materials.

8.5. This agreement sets out the full extent of the Supplier’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

 

9. LIMITATION OF REMEDIES AND LIABILITY

 

9.1. Nothing in this agreement shall operate to exclude or limit either party’s liability for:

  • death or personal injury caused by its negligence; or
  • any breach of the terms implied section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
  • fraud; or
  • any other liability which cannot be excluded or limited under Product applicable law.

9.2. Neither party shall be liable under or in connection with this Agreement or any collateral contract for any:

  • loss of revenue;
  • loss of actual or anticipated profits;
  • loss of contracts;
  • loss of the use of money;
  • loss of anticipated savings;
  • loss of business;
  • loss of opportunity;
  • loss of goodwill;
  • loss of reputation;
  • loss of, damage to or corruption of data; or
  • any indirect or consequential loss,

in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.

9.3. Subject to clause 9.1, each party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed £1000.

 

10. INTELLECTUAL PROPERTY RIGHTS

 

10.1. All Intellectual Property Rights in regards to copyright, design, trademarks and any other Intellectual Property Rights in regards to the look and feel of the site belong to the Customer apart from the Suppliers Intellectual property logo and trade markets, copyright and any other rights in regards Clause 11.4.

10.2. All Intellectual Property Rights in the Product (including in the content of the Product) arising in connection with this agreement shall be the property of the Supplier, and the Supplier hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Product. After the last payment invoice of the    Product all Intellectual Property Rights to her in the Product will not be transferred to the Customer however the Customer can keep their non-exclusive licence as long as they do not breach clause 7 of this agreement.

10.3. The Customer will have control of how the Product looks and feels.

10.4. The Customer shall indemnify up to a reasonable amount of £1000 the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party like copyrights, design, patents, passing off or another other property right that the Customer should have reasonable seen was on the Product.

10.5. The Supplier shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Product infringes any Intellectual Property Rights of a third party, other than infringements referred to in clause 10.2.

10.6. The indemnities in clause 10.2, clause 10.3 and clause 11.4 are subject to the following conditions:

  • the indemnified party promptly notifies the indemnifier in writing of the claim; within 14 days of the specified period.
  • the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent; within 14 day of the specified period.
  • the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; within 14 day of the specified period. and
  • the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim within 14 day of the specified period.

10.7. The indemnities in clause 10.2, clause 10.3, clause 11.4 and clause 11.5 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.

 

11. PRODUCT CONTENT

 

  • The Customer shall ensure that the Materials this is in regards to any content for any photos, images or text and any thing else do not infringe any Product liable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (In Product Content).
  • The Customer acknowledges that the Supplier has no control over any content placed on the Product by Visitors and does not purport to monitor the content of the The Supplier reserves the right to remove content from the Product where it reasonably suspects such content is In Product Content  the Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Product may is misleading, violations Intellectual or is libel.
  • The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute In Product Content to the extent that any insurance the customer takes covers this.
  • The Supplier may include the statement “Designed by Modular” on the home page of the Product in a form to be agreed.
  • The Customer will have the right to dictate the form of their Content if the Suppliers wants to show the Customer’s Product to any third parties.

 

12. DATA PROTECTION

 

12.1. The Supplier warrants that, to the extent it processes any Personal Data on behalf of the Customer:

  • it shall act only on instructions from the Customer; and
  • it has in place Product technical and organizational security measures against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

12.2. In this clause 12, Personal Data has the meaning given in the Data Protection Act 1998.

 

13. TERM AND TERMINATION

 

13.1. This agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause 13) terminate automatically on Acceptance of the Product and payment of all outstanding sums.

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

  • the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment;
  • the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
  • 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 being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
  • a person becomes entitled to Product a receiver over all or any of the assets of the other party or a receiver is    Product over all or any of the assets of the other party;
  • the other party (being an individual) is the subject of a bankruptcy petition or order;
  • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
  • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(j (inclusive); or
  • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    1. On termination of this agreement by the Supplier pursuant to clause 13.2, all licences granted by the Supplier under this agreement shall terminate immediately.
    2. On expiry or termination of this agreement otherwise than on termination by the Supplier pursuant to clause 13.2, the Supplier shall promptly return all Materials to the Customer, and shall provide to the Customer an electronic copy of the Product (including all content on the Product).  The Supplier shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the    Product to the Customer or another service provider, subject to the payment of the Supplier’s expenses reasonably incurred.
    3. On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

 

14. CHANGE CONTROL

 

Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure.

 

15. FORCE MAJEURE

 

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.

 

16. CONFIDENTIALITY

 

16.1. Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

16.2. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

16.3. The obligations set out in this clause 16 shall not Product to Confidential Information which the receiving party can demonstrate:

  • is or has become publicly known other than through breach of this clause 16; or
  • was in possession of the receiving party prior to disclosure by the other party; or
  • was received by the receiving party from an independent third party whohas full right of disclosure; or
  • was independently developed by the receiving party; or
  • was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

16.4. The obligations of confidentiality in this clause 16 shall not be affected by the expiry or termination of this agreement.

 

17. NOTICES

 

17.1. A notice given under this agreement:

  • shall be in writing in the English language;
  • shall be sent for the attention of the person, and to the address, fax number or e-mail address given in this clause 17 (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and
  • shall be:
    • delivered personally; or
    • sent by fax or e-mail; or
    • sent by pre-paid first-class post, recorded delivery or registered post; or
    • (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

17.2. The addresses for service of notice are on the statement of work.

17.3. A notice is deemed to have been received:

  • if delivered personally, at the time of delivery; or
  • in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day; or
  • in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or
  • in the case of registered airmail, five days from the date of posting; or
  • if deemed receipt under the previous paragraphs of this clause 17.3 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

17.4. To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

 

18. ANNOUNCEMENTS

 

No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

 

19. ASSIGNMENT

 

Neither party may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

 

20. ENTIRE AGREEMENT

 

20.1. This agreement 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.

20.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

 

21. THIRD PARTY RIGHTS 

 

21.1. Except as expressly provided elsewhere in this agreement a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

21.2. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

 

22. VARIATION

 

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

23. WAIVER

 

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

24. RIGHTS AND REMEDIES

 

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

25. SEVERANCE

 

25.1. If any provision or part-provision of this agreement 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 shall not affect the validity and enforceability of the rest of this agreement.

25.2. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

26. GOVERNING LAW

 

This agreement 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.

 

27. 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 this agreement or its subject matter or formation.

 

28. DEVELOPMENT RESTRICTIONS

 

28.1. In order to protect the Confidential Information and business connections of the Supplier to which he has access as a result of this agreement access to the  Product and the design of the Product;

(a) For nine months during development, solicit or endeavor to entice away from the Company or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business in the same industry as the customer;

28.2. Each of the restrictions in this clause is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall Product with such deletion as may be necessary to make it valid or effective.

28.3. If the Employee’s employment is transferred to any firm, company, person or entity other than a Group Company (the “New Employer”) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, the Employee will, if required, enter into an agreement with the New Employer containing post-termination restrictions corresponding to those restrictions in this clause 2, protecting the confidential information, trade secrets and business connections of the New Employer.

This agreement has been entered into on the date stated at the beginning of it.

Change control procedure

  1. The Supplier and the Customer shall discuss any change to this agreement (Change) proposed by the other and such discussion shall result in either:
    • a written request for a Change by the Customer; or
    • a written recommendation for a Change by the Supplier,

or, if neither the Customer nor the Supplier wishes to submit a request or recommendation, the proposal for the Change will not proceed.

  1. Where a written request for a Change is received from the Customer, the Supplier shall, unless otherwise agreed, submit a Change control note (CCN) to the Customer within the period agreed between them or, if no such period is agreed, within five Business Days from the date of receipt of such request for a Change, or inform the Customer that the Supplier is not able to comply with such written request for a Change.
  2. A written recommendation for a Change by the Supplier shall be submitted as a CCN direct to the Customer at the time of such recommendation.
  3. Each CCN shall contain:
    • the title of the Change;
    • the originator and the date of the request or recommendation for the Change;
    • the reason for the Change;
    • the full details of the Change, including any specifications and user facilities;
  • the price, if any, of or associated with the Change;
  • a timetable for implementation, together with any proposals for acceptance of the Change;
  • the impact, if any, of the Change on other aspects of this agreement, including:
    • the Charges;
    • the contractual documentation; and
    • staff resources;
  • the date of expiry of validity of the CCN (which shall not be less than 90 Business Days); and
  • provision for signature of the CCN by the Customer and the Supplier.
  1. For each CCN submitted, the Customer shall, within the period of validity of the CCN as set out in paragraph 4(h) of this Schedule 5:
    • allocate a sequential number to the CCN;
    • evaluate the CCN, and as Product either:
      • request further information; or
      •   Product the CCN; or
      • notify the Supplier of the rejection of the CCN; and
    • if Product, approved arrange for two copies of the Product approved CCN to be signed for and on behalf of the Customer and the Supplier. The signing of the CCN shall signify acceptance of a Change by both the Customer and the Supplier.
  2. Once signed by the Customer and the Supplier in accordance with paragraph 5 of this Schedule 5, the Change shall be immediately effective and the Customer and the Supplier shall perform their respective obligations on the basis of the agreed amendment.