“Contract” means any contract between Modalit and the Client for the sale and purchase of Goods and/or Services;
“Client” means the person who has entered into the Contract with Modalit;
“Client Site” means the Client’s premises identified as such in Modalit’s quotation or in the absence of such identification the Client’s address given in such quotation;
“Equipment” means any or all of the Hardware and/or Software and/or ancillary items including without limitation user manuals and packaging;
“Hardware” means the hardware to be supplied by Modalit to the Client under the Contract;
“Modalit” means Modalit Limited a company incorporated under English law (company number 03568701) whose principal place of business is at 56 Cavendish Road, Colliers Wood, London SW19 2EU;
“Services” means the consultancy, installation, configuration, testing, training and other services to be supplied by Modalit to the Client under the Contract;
“Software” means the executable computer programs to be supplied by Modalit to the Client under the Contract; and
“Specification” means in relation to any Hardware and/or Software the specification or description thereof in the applicable manuals supplied therewith or otherwise agreed in writing between the parties.
Application and Contract
2.1 All proposals made, quotations given, orders accepted and contracts entered into by Modalit with any person for the supply by Modalit of Equipment and/or Services are subject to these Conditions and all third party Hardware and Software is subject to availability. All other terms and conditions, whether expressly stipulated by the Client or implied by trade custom, course of dealing or otherwise, are excluded.
2.2 Each order by the Client from Modalit shall be deemed to be an offer by the Client to purchase Equipment and/or Services subject to these Conditions. No order placed by the Client shall be deemed to be accepted until expressly accepted by a duly authorised representative of Modalit or (if earlier) Modalit commences performance of the Contract.
Timings, delivery and acceptance
3.1 Modalit will use best endeavours to adhere to any timings agreed by Modalit in writing in relation to its performance of the Contract. However, time for performance shall not be of the essence and, provided it uses such best endeavours, Modalit shall not be liable, in contract in tort or otherwise, for any loss or damage whatsoever howsoever arising from any delay.
3.2 Unless otherwise agreed in writing, all Equipment will be delivered to the Client Site. Modalit will inform the Client of the approximate time of delivery and the Client shall ensure that a duly authorised representative is available to check receipt of correct and undamaged Equipment.
3.3 If Modalit and the Client have agreed acceptance tests in writing then Modalit will carry out those acceptance tests. Otherwise, Modalit will carry out such acceptance tests as it believes are appropriate to demonstrate that the Equipment materially conform to their application.
4.1 The Client agrees to afford Modalit full co-operation in all matters relating to the performance of Modalit’s obligations under the Contract. In particular, but without limitation, the Client shall permit Modalit such access to the Client Site and to other premises owned or occupied by the Client as Modalit requires for the purposes of performing its obligations under the Contract and ensure that appropriate and suitably qualified staff of the Client are at all reasonable times available to liaise with Modalit on matters relevant to Modalit’s performance of its obligations under the Contract.
4.2 If the Client is required to supply any hardware, software or other materials or equipment to assist Modalit’s performance of the Contract, the Client shall obtain all necessary licences, consents and permits to enable Modalit to use the same and indemnify Modalit if Modalit suffers any loss or liability due to any breach by the Client of the obligation in this Clause 4.2.
Price and Payment
5.1 Prices payable by the Client will be as stated in Modalit’s quotation, subject as follows:
5.1.1 prices exclude VAT which the Client shall pay in addition (if lawfully chargeable); and
5.1.2 prices exclude any expenses which the parties mutually agree to be paid in addition to the price.
5.2 The Client shall pay all sums becoming due to Modalit under the Contract when the same become due and payable in accordance with the Contract or. If the Contract does not state when any sum is payable, then payment will become due within 14 days (in the case of sums due for Equipment) or within 30 days (in the case of sums due for all other services) of either the date of Modalit’s demand for payment or the date of Modalit’s invoice, whichever is the earlier. In addition, if Modalit is purchasing third party Equipment for the purposes of supplying the same to the Client, the Client shall at Modalit’s request pay to Modalit, in advance of such purchase, a deposit of up to 50% of the net cost of such Equipment. If the Contract terminates prior to completion of the Services and Modalit has, in connection with the Contract, incurred or is obliged to incur to any third party any restocking charges or other costs, then Modalit shall be entitled to retain all or any part of such deposit as payment or part payment towards such charges and costs.
5.3 If any payment due from the Client to Modalit, whether under the Contract or otherwise, is overdue then without prejudice to any other right or remedy Modalit may:
5.3.1 the Client will be liable to pay interest to Modalit on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank plc (or such higher rate as may be permitted by law), accruing on a daily basis until payment is made, whether before or after any judgment; and/or.
5.3.2 Modalit may suspend (with consequent extension of time for performance) its performance of the Contract.
Risk and Title
6.1 Risk of loss of, damage to and deterioration in Equipment will pass to the Client when they are delivered to the Client Site or to such other locations as may be agreed by Modalit and the Client.
6.2 Notwithstanding the above passing of risk, Modalit shall retain all rights in and title to the Equipment until it has received payment in full of all sums due for the Equipment, the Services and any other Equipment supplied by it to the Client.
6.3 If the Client fails to make any payments to Modalit when due or if any of the events referred to in Clause 12.2 occurs in relation to the Client or if Modalit has reasonable cause to believe that any of such events is likely to occur then Modalit shall have the right, without prejudice to any other remedies, to enter without prior notice any premises where Equipment owned by Modalit are or are believed by Modalit to be located, and this Clause shall be construed as an irrevocable licence granted by the Client to Modalit to enter such premises, using whatever means may be reasonably necessary, and repossess the Equipment.
intellectual property rights
7.1 The Client acknowledges that it has no right, title or interest in or to the copyright or any other intellectual property rights (including without limitation, database rights, know-how and rights in inventions) subsisting in the Software, except such licence to use the same as is expressly granted to the Client by the Contract, and that all such copyright and other intellectual property rights in the Software belong to Modalit, or (in the case of software not proprietary to Modalit) to other third parties.
7.2 Subject to the Client paying to Modalit all sums becoming due under the Contract and under any agreement between Modalit and the Client for maintenance and/or other support in relation to the Software and for the Hardware (or any part of them), Modalit hereby grants to the Client a non-exclusive licence to use Software in the normal course of the Client’s business and subject as follows:
7.2.1 the Client’s use of the Software shall at all times be in accordance with any user manual supplied to the Client by Modalit;
7.2.2 the licence hereby granted is personal to the Client and the Client shall not assign, sub-license or otherwise transfer any or all of its rights to use the Software
7.2.3 save to the extent that such acts may not lawfully be prevented, the Client shall not modify, adapt, disassemble, decompile or otherwise reverse engineer any or all of the Software;
7.2.4 if any or all of the Software is subject to a licence from a third party then the Client shall comply with such licence; and
7.2.5 the licence hereby granted to the Client shall continue without limit in time unless terminated in accordance with the Contract. Any termination of the Contract shall automatically terminate such licence.
Each party shall, and shall procure that its employees, agents and sub-contractors shall, keep confidential all information obtained from the other both pursuant to the Contract and prior to and in contemplation of it and all other information that it may acquire from the other in the course of the Contract, use such information exclusively for the purposes of or as contemplated by the Contract and disclose such information only to those of its employees, agents and sub-contractors pursuant to the Contract to whom and to the extent that such disclosure is reasonably necessary for the purposes of or as contemplated by the Contract. Provided that this Clause shall not apply to information which prior to receipt thereof from one party was in the possession of the other without any restriction on its disclosure or use, or which is subsequently disclosed to the recipient party without any obligations of confidence by a third party who has not derived it directly or indirectly from the other party, or which is or becomes generally available to the public through no act or default of the recipient party.
9.1 Modalit warrants that upon installation (in the case of Software not proprietary to Modalit and in the case of Hardware) or for a period of 6 months from installation (in the case of Software proprietary to Modalit) all Hardware and/or Software supplied by Modalit under the Contract will materially conform to the relevant Specification under normal use as hereby permitted by competent and properly trained operators in accordance with the relevant manuals. In the event of breach of this warranty being notified to Modalit by the Client in writing Modalit will:
9.1.1 if the defect lies in Software proprietary to Modalit at Modalit’s cost use reasonable endeavours to rectify the material non-conformity (and the above warranty shall continue to apply in respect of Software for the residue of the 6 month period referred to above); or
9.1.2 if the defect lies in Software which is not proprietary to Modalit, or in Hardware, at Modalit’s cost use reasonable endeavours to enforce such contractual rights as Modalit or the Client may have to obtain from the person that supplied the same to Modalit such rectified or replacement Software or modified, repaired or replacement Hardware as is necessary to conform to the above warranty.
9.2 Modalit warrants that it will perform all Services with reasonable care and skill. If Modalit is shown to be in breach of such warranty in relation to particular Services, then Modalit shall take such steps as may be necessary to render the results of such Services as they would have been had Modalit supplied such Services in accordance with such warranty or refund to the Client such sums as the Client has paid to Modalit in respect of such particular Services.
10.1 Neither party excludes or limits its liability to the other in negligence in respect of death or personal injury, or for wilful default or fraudulent misrepresentation or otherwise insofar as any exclusion or limitation of its liability is void, prohibited or unenforceable by law, and all provisions of the Contract shall be read subject to this Clause 10.1.
10.2 Except as expressly otherwise stated in these Conditions, Modalit gives no warranties and makes no representations in relation to any Software, Hardware or Services or otherwise in relation to the Contract and all such warranties and representations, whether express or implied by law or otherwise, are hereby excluded to the fullest extent permitted by law.
10.3 In no circumstances shall Modalit be liable to the Client, in contract, in tort or otherwise, for any loss of profit, business, revenue, goodwill, anticipated savings or any payment made or due to a third party, or for any consequential, special, indirect or incidental loss arising in any way out of or in connection with the Contract.
10.4 If notwithstanding provisions in the Contract purporting to limit or exclude Modalit’s liability Modalit is found liable to the Client in excess of liability expressly accepted by Modalit under the Contract then Modalit’s liability to the Client shall nevertheless be limited to the price payable under the Contract.
10.5 The Client shall be exclusively responsible for all services it provides through or involving use of Equipment and shall indemnify Modalit against all claims, actions and suits by third parties arising directly or indirectly from such services and against all losses, costs, damages and expenses resulting directly or indirectly from such claims, actions and suits.
Neither party shall be deemed to be in breach of the Contract, or otherwise liable to the other, by reason of any delay in performance, or non-performance of any of its obligations to the extent that such delay or non-performance is caused by any event or circumstance beyond its control (“force majeure”). Provided that the party so affected by force majeure shall promptly notify the other party thereof in writing and shall use all reasonable endeavours to continue to perform its obligations under the Contract as soon as reasonably practicable. Provided further that this Clause shall not apply to obligations of the Client to make payments to Modalit under the Contract.
12.1 Either party may at any time by notice in writing to the other party terminate the Contract with effect from the date of service of such notice if the other party commits a material breach of the Contract and does not remedy such breach within 28 days after the non-breaching party has given written notice to the breaching party identifying the breach and requiring it to be remedied.
12.2 Modalit may at any time by notice in writing to the Client terminate the Contract with effect from the date of service of such notice if the Client passes a resolution for winding up (other than for the purpose of bona fide reconstruction or amalgamation); or a court of competent jurisdiction makes an order that the Client be wound up; or a receiver, manager, administrator or administrative receiver is appointed in respect of the Client’s business or any part thereof; or the Client ceases or threatens to cease to carry on business; or the Client is unable to pay its debts as they fall due.
12.3 Termination of the Contract, for whatever cause, shall be without prejudice to the rights of either party accrued prior thereto and termination shall not affect any provision of the Contract which, in order to give full effect to its meaning, needs to survive such termination.
12.4 All licences to use Software granted to the Client shall forthwith and automatically terminate upon termination of the Contract for whatever cause and the Client shall forthwith following termination of the Contract cease to make any use whatsoever of the Software and shall (at Modalit’s option) either return the same to Modalit, together with all whole or partial copies thereof and all user manuals, or destroy the same, including all whole or partial copies thereof and all user manuals, and shall (in either case) certify in writing to Modalit that it has complied with this Clause.
13.1 Any notice given under the Contract shall be sufficiently served if in writing and sent to the registered office of the other party (or such other address for service as shall have been notified by the other party), or by facsimile transmission to such facsimile number as shall have been notified by the other party. Notices served by facsimile will be deemed received when sent, subject to issue of a valid transmission slip; notices served by hand (including courier) will be deemed received when delivered; notices served by first class post will be deemed received 2 days after posting; and notices served by air mail will be deemed received 5 days after posting.
13.2 The Contract as written (including any proposal, quotation, order or other document expressly incorporated by reference) constitutes the entire agreement between the parties relating to the subject matter of the Contract and supersedes all prior representations, agreements, negotiations or understandings with respect thereto, whether oral or in writing.
13.3 Neither party may assign, transfer or sub-license the benefit or the burden of this Contract or any part thereof without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed); save that Modalit may engage sub-contractors, agents and others in the performance of this Agreement and/or assign this Agreement in connection with a sale of Modalit’s business relating this Contract.
13.4 Any failure or neglect by either party to enforce at any time any of the provisions of the Contract shall not be construed nor deemed to be a waiver of that party’s rights under the Contract.
13.5 If the whole or any part of any provision of the Contract is determined to be invalid or unenforceable then such provision or part thereof shall be severed from the body of the Contract which shall continue to be valid and enforceable to the fullest extent permitted by law.
LAW AND JURISDICTION
The Contract shall be governed by and construed in all respects in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English courts in respect of any dispute or claim arising out of or relating to the Contract. The place for performance of the Contract shall be England.