(1) Confidential Information.
- “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances.
- Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information but no less that a reasonable care; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates’ employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates’ employees and agents in violation of this Section. For the purpose of this Agreement, “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with, any party of this Agreement.
- Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
- Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
(2) Intellectual Property Rights.
- “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights, as well as materials, data, software, methods, know-how, trade secrets, ideas and concepts, techniques, templates and related intellectual property and its associated rights conceived, developed or reduced to practice before, during or after this Agreement.
- Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s intellectual property. As between the parties, Client owns all Intellectual Property Rights in Client Data (Client’s data which MOD1 is required to process, generate, store or transmit pursuant to this Agreement), and MOD1 or its licensors owns all Intellectual Property Rights in methods, know-how and the Services, Products and Deliverables. MOD1 may develop for itself, or for others, analyses, reports, studies, software developments or other material and processes similar to those contemplated or produced under this Agreement and all applicable SOWs.
(3) Limitation of Liability and Warranty.
- Limitation of Indirect Liability and Warranty. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST DATA, LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
MOD1 is not liable for the suitability, availability and characteristics of the Products, Services or Deliverables. The Products, Services or Deliverables are provided on an “as is” basis, with any and all faults, and without any warranty or any representation of any kind (including in respect of conformity, hidden defects, correction of defects, performance). Any service credit from an SLA, if any, is the sole and exclusive liability of MOD1 in the event service levels are not met. In relation to third party’s Services, Products and Deliverables, MOD1 shall not be liable vis a vis the Client for its use of the third party’s Services, Products and Deliverables, their suitability, any difficulty to access or use them, or for damages the Client may incur in connection with their use. Client is solely responsible to use the Services, Products and Deliverables in compliance with the relevant documentation and policies of the third party provider, available upon request. Client represents and warrants that MOD1 has not made, orally or in writing, any representation or warranties concerning these Services, Products and Deliverables. The Client shall indemnify, defend and hold MOD1, its directors and officers, and its agents and employees, harmless from and against (i) any third party claim to the extent such claim arises from or relates to the Client’s’ use of the Services, Products and Deliverables, or (ii) any damages or expenses arising from or relating to the Client Data or their use by MOD1.
- Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE TOTAL AMOUNT OF THE SOW WHICH GAVE RISE TO SUCH LIABILITY.
- Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to indemnifications, Client’s breaches of confidentiality obligations or violations of a party’s Intellectual Property Rights by the other party, all of which are uncapped.
(4) Client Cooperation.
Client will provide reasonable and timely cooperation in connection with MOD1’s performance of the services, and delivery of the deliverables, including providing any information and responses to questions reasonably requested by MOD1, providing access in general and to any third-party solutions as necessary, and ensuring that any information Client provides is accurate in all material respects. If Client’s failure to comply with the foregoing causes any breach of (including delay in) MOD1’s performance of the services or delivery of the deliverables, MOD1 will not be liable for such delay and may charge additional reasonable fees or cancel any uncompleted Services, Products and Deliverables by notifying Client in writing.
(5) Force Majeure.
Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by causes or events beyond the reasonable control of either party including, but not limited to, labor disputes of any kind, acts of God, floods, fires, explosions or storms, war, any rule or action of any court, instrumentality or agency of federal or state or local government (“Force Majeure”).
(6) Data Protection and Privacy.
The parties undertake, as data controllers for the data processing operations they respectively carry out for their own purposes in connection with these Services General Conditions, to comply with all their obligations arising from the Data Protection Legislation in relation to any processing of personal data carried out in the frame of this Agreement and notably to provide the data subjects whose personal data may be processed, with the relevant information relating to the protection of their personal data (“privacy notice”), as described in the parties’ respective privacy notice. MOD1 Privacy Notice is available at this link: https://mod1consulting.com/privacy-notice/.
To the extent MOD1 is processing Customer personal data for the purpose of performing the Services, Products and Deliverables, a Data Processing Agreement is incorporated into the Agreement.
(7) Governing Law.
This Agreement is governed by Swiss law, excluding that country’s choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN BASEL, SWITZERLAND.
If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
The terms on any purchase order, confirmation, or similar document submitted by Client to MOD1 which are in contradiction with this Agreement will have no effect and are hereby rejected, except for Order Forms executed by both Client and MOD1.
This Agreement shall be effective at the earlier between (i) the date of signature of the applicable order form or Statement of Work by Client, or (ii) the date when the Services, Products or Deliverables (excluding any proof of concept or trial period) effectively start to be provided. Customer therefore acknowledges and agrees that verbal authorization or instructions from Customer to commence any Services shall be sufficient and shall have force and effect and that any Services, Products or Deliverables performed by MOD1 under such verbal authorization or instructions prior to execution of this Agreement and a corresponding SOW shall be governed by this Agreement.
During the term of this Agreement, MOD1 may (i) orally state that Client is an MOD1 customer and (ii) include Client’s name or Client trademarks, trade names, service marks or logos in a list of MOD1 customers (whether in MOD1’s online or offline promotional materials). Client may revoke MOD1’s right to use its trademarks, trade names, service marks or logos under this paragraph with written notice to MOD1 and a reasonable period to stop the use.
(9) Project planning.
- The project planning will be jointly discussed and agreed between both parties at the beginning of the project. If, for any reason, the project is put on hold for a period of time (the “Pause”), MOD1 will reassign its resources to other customers. When the project restarts, a new version of the plan, which will include sufficient time for MOD1 to remobilize its resources, will have to be discussed and agreed between both parties. After the Pause, MOD1 does not guarantee that the same resources who were engaged in the previous project phases will be assigned again to the project.
- In addition to a. and for time and material activities: If the project is put on hold for more than one (1) calendar month, the pricing conditions set forth in the initial proposal will be considered as expired and the applicable man-day list prices will apply when the project restarts.
- In addition to a. and for fixed price activities: When the project is put on hold, MOD1 will invoice the part of the activities that have been completed at the time of the hold, notwithstanding the payment schedule set forth in the proposal. If the interruption lasts for more than six (6) calendar months, MOD1 will invoice the remaining part of the fixed price activities.