Terms and Conditions

Terms and conditions

MODUS FIREPLACES - Terms and Conditions

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

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

Charges: the charges payable by the Customerfor the supply of the Services in accordance with clause 9.

Commencement Date: has the meaning set out inclause 2.1.

Conditions: these terms and conditions asamended from time to time in accordance with clause 16.8.

End Client: where the Customer is a projectadvisor then the client/end user at whose Installation Premises the Servicesare to be supplied as part of that project.

Installation Premises: the premises of theCustomer or End Client at which the Services (and Goods if applicable) are tobe supplied.

Modus: Modus Living Limited (registered inEngland and Wales with company number 8099370) trading as “Modus Fireplaces”.

Modus Materials: has the meaning set out inclause 4.1(j).

Contract: the contract between Modus and theCustomer for the supply of Services in accordance with these Conditions.

Customer: the person, firm or company whopurchases the Services from Modus.

Deliverables: the deliverables specified inthe Service Specification produced by Modus for the Customer.

Goods: means any goods supplied under theContract as part of the Deliverables.

Intellectual Property Rights: all patents,rights to inventions, utility models, copyright and related rights, trade marks,service marks, trade, business and domain names, rights in trade dress orget-up, rights in goodwill or to sue for passing off, unfair competitionrights, rights in designs, rights in computer software, database rights,topography rights, moral rights, rights in confidential information (includingknow-how and trade secrets) and any other intellectual property rights, in eachcase whether registered or unregistered and including all applications for andrenewals or extensions of such rights, and all similar or equivalent rights orforms of protection in any part of the world.

Services: the services, including theDeliverables, supplied by Modus to the Customer as set out in the ServiceSpecification.

Service Specification: the description orspecification for the Services provided in writing by Modus to the Customereither in any quotation, email or order confirmation (whichever is the latter)given by Modus or separate specification document.

1.2 Inthese Conditions, the following rules apply:

(a) Aperson includes a natural person, corporate or unincorporated body (whether ornot having separate legal personality).

(b) Areference to a party includes its personal representatives, successors orpermitted assigns.

(c) Areference to a statute or statutory provision is a reference to such statute orprovision as amended or re-enacted. A reference to a statute or statutoryprovision includes any subordinate legislation made under that statute orstatutory provision, as amended or re-enacted.

(d) Anyphrase introduced by the terms including, include, in particular or any similarexpression shall be construed as illustrative and shall not limit the sense ofthe words preceding those terms.

(e) Areference to writing or written includes faxes and e-mails.

2. Basis of contract

2.1 Anorder from a Customer shall only be deemed to be accepted when Modus receivesthe initial deposit payment at which point and on which date the Contract shallcome into existence (Commencement Date).

2.2 TheContract constitutes the entire agreement between the parties. The Customeracknowledges that it has not relied on any statement, promise or representationmade or given by or on behalf of Modus which is not set out in the Contract.

2.3 Anysamples, drawings, descriptive matter or advertising issued by Modus, and anydescriptions or illustrations contained in the catalogues or brochures ofModus, are issued or published for the sole purpose of giving an approximateidea of the Services described in them. They shall not form part of theContract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any otherterms that the Customer seeks to impose or incorporate, or which are implied bytrade, custom, practice or course of dealing.

2.5 Inthe event of a conflict between the Service Specification and the Conditionsthe provisions of the Service Specification shall prevail.

2.6 Anyquotation given by Modus shall not constitute an offer, and is only valid for a period of 20 BusinessDays from its date of issue.

3. Supply of services

3.1 Modus shall supply the Services to the Customer in accordance with theService Specification in all material respects.

3.2 Modus shall use all reasonable endeavours to meet any performance datesspecified in the Service Specification, but any such dates shall be estimatesonly and time shall not be of the essence for performance of the Services.

3.3 Modus shall have the right to make any changes to the Services which arenecessary to comply with any applicable law or safety requirement, or which donot materially affect the nature or quality of the Services, and Modus shallnotify the Customer in any such event.

3.4 Modus warrants to the Customer that the Services will be provided usingreasonable care and skill.

4. Obligations of the Customer

4.1 TheCustomer shall:

(a) ensure that any information it provides in the Service Specification andthe Goods Specification (where applicable) is complete and accurate;

(b) ensure that the Service Specification and/or Goods Specification isappropriate (including but not limited to dimensions and performancespecifications) for the Installation Premises and compliant with any localregulatory requirements;

(d) ensure the co-operation of the End Client in all matters relating to theServices and/or the Goods;

(e) provide Modus with such information as Modus may reasonably require inorder to supply the Services, and ensure that such information is accurate inall material respects;

(f) provide Modus, its employees, agents, consultants and subcontractors,with access to the Installation Premises of the Customer, accommodation andother facilities as reasonably required by Modus;

(g) inso far as the Services do not include the same, prepare the InstallationPremises, undertake an installation of the Deliverables/Goods and/or make goodthe Installation Premises following commissioning;

(h) ensure that suitably qualified and regulated third parties areinstructed in a timely manner to undertake any preparation or installation workor making good at the Installation Premises;

(i) obtain and maintain all necessary licences, permissions and consentswhich may be required before the date on which the Services are to start;

(j) keep and maintain all materials, equipment and other property of Modus(Modus Materials) at the Installation Premises of the Customer in safe custodyat its own risk, maintain Modus Materials in good condition until returned toModus, and not dispose of or use Modus Materials other than in accordance withthe written instructions or authorisation of Modus; and

(k) following installation of the Deliverables/Goods follow Modus’ or themanufacturer’s oral or written instructions use or maintenance of the same.

4.2 TheCustomer or their duly authorised representative shall inspect theinstallation, the Deliverables/the Goods with a representative of Modus on thedate of installation/commissioning and both parties shall sign a “Certificateof Completion” and accordingly signature of such Certificate or where none issigned by the Customer then payment by the Customer of the balance of theCharges under clause 9.1(c) shall be deemed confirmation by the Customer thatModus has satisfactorily fulfilled its obligations in performance of theServices under the Contract. Following signature of such Certificate or balancepayment by the Customer, any further services required by the Customer fromModus (save for services resulting from a claim by the Customer under clause7.1) shall incur additional charges at Modus’ then current daily rate.

4.3 Ifthe performance of Modus of any of its obligations under the Contract isprevented or delayed by any act or omission by the Customer or failure by theCustomer (or where applicable the End Client) to perform any relevantobligation (Customer Default):

(a) Modus shall without limiting its other rights or remedies have the rightto suspend performance of the Services until the Customer remedies the CustomerDefault, and to rely on the Customer Default to relieve it from the performanceof any of its obligations to the extent the Customer Default prevents or delaysthe performance of Modus of any of its obligations;

(b) Modus shall not be liable for any costs or losses sustained or incurredby the Customer or the End Client arising directly or indirectly from thefailure or delay of Modus to perform any of its obligations as set out in thisclause 4.2; and

(c) theCustomer shall reimburse Modus on written demand for any costs or lossessustained or incurred by Modus arising directly or indirectly from the CustomerDefault including (but not limited to) Modus’ cost for additional visits to theInstallation Premises to finalise installation or commission Deliverables/Goodswhere this was prevented in the first instance due to the Customer’s or a thirdparty’s failure to complete preparatory works or which are necessary becauserequired utility services were not available (including but not limited to gasand electricity supplies).

4.4 Inthe event that the Customer unlawfully terminates or cancels the Contract, theCustomer shall be required to pay to Modus, as agreed damages and not as apenalty, the full amount of any third party costs to which Modus has committedand in respect of cancellations on less than 10 days’ written notice the fullprice of the Goods as set out in the Contract, and the Customer agrees this isa genuine pre-estimate of Modus’ losses in such a case.

5. Goods

5.1 TheGoods are described in any specification for the Goods, including any relevantplans or drawings or order confirmation (whichever is the latter) that areagreed in writing by the Customer and Modus (“Goods Specification”).

5.2 Tothe extent that the Goods are to be manufactured in accordance with a GoodsSpecification supplied or approved by the Customer (whether or not such GoodsSpecification is produced by Modus or a third party consultant or supplier),the Customer shall indemnify Modus against all liabilities, costs, expenses,damages and losses (including any direct, indirect or consequential losses,loss of profit, loss of reputation and all interest, penalties and legal and otherreasonable professional costs and expenses) suffered or incurred by Modus inconnection with any claim made against Modus for actual or alleged infringementof a third party’s intellectual property rights arising out of or in connectionwith Modus’ use of the Goods Specification. This clause 5.2 shall survivetermination of the Contract.

5.3 Modus reserves the right to amend the Goods Specification of the Goodsif required by any applicable statutory or regulatory requirements.

6. Delivery of Goods

6.1 Delivery of the Goods shall take place at the delivery location statedbelow (“Delivery Location”):

(a) ForGoods for delivery within the UK mainland by Modus – at the point of completionof unloading of the Goods by Modus at the agreed delivery address (whether ornot the Installation Premises); or

(b) ForGoods collected by the Customer from Modus’ warehouse or for delivery withinthe UK mainland by third party carrier – when the Goods have been loaded ontothe Customer’s or the carrier’s vehicle (as applicable); or

(c) ForGoods for export outside the UK mainland – where the Goods are made availableat Modus’ warehouse (EXW) for collection by the Customer’s nominated carrierservice.

Delivery of Goods shall take place at theapplicable Delivery Location stated above and following such delivery theCustomer shall be liable for any subsequent loss or damage to Goods howevercaused.

6.2 Acceptance of any change to the Delivery Location requested by theCustomer shall be at the Modus’ sole discretion and the Customer shall beliable for any additional expenses incurred by Modus as a result of suchchange.

6.3 TheCustomer is responsible for obtaining, at its own cost:

(a) transport from the Delivery Location;

(b) insurance cover in relation to the transport of the Goods from Modus’warehouse; and

(c) allexport/import licences and other consents in relation to the Goods as arerequired from time to time by the Customer and, if required by Modus, theCustomer shall make those licences and consents available to Modus prior to therelevant shipment.

6.4 Inthe event that Modus agreed to arrange transportation of the Goods such Goodsare delivered by third party carriers over whom the Modus has no control andtherefore Modus shall not be liable for any loss, damage or expense suffered bythe Customer or any other party by reason of any alleged delay in delivery ordamage to the Goods during transit.

6.5 Anydates quoted for delivery of the Goods are approximate only, and the time ofdelivery is not of the essence. Modus shall not be liable for any delay indelivery of the Goods that is caused by a Force Majeure Event or the Customer’sfailure to provide Modus with adequate delivery instructions or any otherinstructions that are relevant to the supply of the Goods.

6.6 Ifthe Customer fails to accept or take delivery of the Goods within 10 BusinessDays of Modus notifying the Customer that the Goods are ready, then exceptwhere such failure or delay is caused by a Force Majeure Event or by Modus’failure to comply with its obligations under the Contract in respect of theGoods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 amon the 11th Business Day following the day on which Modus notified the Customerthat the Goods were ready; and

(b) Modus shall store the Goods until delivery takes place, and charge theCustomer for all related costs and expenses (including insurance).

6.7 If20 Business Days after Modus notified the Customer that the Goods were readyfor delivery the Customer has not accepted or taken delivery of them, Modus mayresell or otherwise dispose of part or all of the Goods.

7. Quality of Goods

7.1 Subject to the provisions of this clause 7, Modus warrants that ondelivery and for a period of 2 years the Goods shall:

(a) conform in all material respects with their description and anyapplicable Goods Specification;

(b) befree from material defects in design, material and workmanship.

7.2 Subject to clause 7.3, if:

(a) theCustomer gives notice: (i) in the case of visual defects apparent on normalvisual inspection (including glass condition), within two Business Days ofDelivery; or (ii) in the case of a latent defect, within a reasonable time ofthe latent defect having become apparent, that some or all of the Goods do notcomply with the warranty set out in clause 7.1;

(b) Modus or its appointed representative is given a reasonable opportunityof examining such Goods; and

(c) where Goods have not yet been used/installed/commissioned, the Customer(if asked to do so by Modus) returns such Goods to Modus’ place of business atModus’ cost,

Modus shall, at its option, repair or replacethe defective Goods, or refund the price of the defective Goods in full. Theabove warranty shall only cover Goods and accordingly any associated labourcosts will be charged at Modus’ then current daily rate (or part thereof). Ifthe Customer’s claim is found by Modus to be outside the scope or duration ofthe warranty in clause 7.1, the costs of transportation of the Goods,investigation, inspection (including Modus’ or their appointed representative’sreasonable travel and accommodation expenses) and repair or replacement shallbe borne by the Customer.

7.3 Modus shall not be liable for the Goods’ failure to comply with thewarranty in clause 7.1 if:

(a) theCustomer makes any further use of such Goods after giving a notice inaccordance with clause 7.2;

(b) thedefect arises because the Customer (or its contractor) failed to follow Modus’or the manufacturer’s oral or written instructions as to the storage,installation, commissioning, use (including fuel type used) or maintenance ofthe Goods or (if there are none) good trade or industry practice;

(d) thedefect is glass damage/broken glass caused following delivery (as defined inclause 6.1 of these Conditions);

(e) thedefect arises as a result of special (non-standard) material finish to theGoods requested by the Customer;

(f) theCustomer (or any of its contractors) alters or repairs such Goods without thewritten consent of Modus;

(g) thedefect arises as a result of fair wear and tear, wilful damage, negligence, orabnormal working conditions;

(h) theGoods differ from the Goods Specification as a result of changes made to ensurethey comply with applicable statutory or regulatory standards.

7.4 Except as provided in this clause 7, Modus shall have no liability tothe Customer in respect of the Goods’ failure to comply with the warranty setout in clause 7.1.

7.5 Theterms of these Conditions shall apply to any repaired or replacement Goodssupplied by Modus under clause 7.2.

7.6 Forthe avoidance of doubt Modus shall not be liable under this clause 7 in respectof:

(a) damage to or failure or reduced performance of Deliverables/Goods whichresults from works undertaken at the Installation Premises by the Customer orother third parties following the signature of the Certificate of Completion;or

(b) theCustomer’s (or the End User’s) failure to be able to operate the Goods inaccordance with the manufacturer or Modus’ operating/user instructions; or

(c) theGoods failure or reduced performance as a result of incorrect storage,installation or commissioning by the Customer or End User’s appointedsuppliers,

and in the event of such damage or failure andthe Customer’s or End User’s subsequent request that Modus attend theInstallation Premises to provide additional instruction or remedial works thenthe Customer shall be liable to pay Modus’ standard daily rates and reasonableexpenses (including but not limited to travel and accommodation expenses) toprovide such additional services together the full replacement cost of the unit(or any part thereof).

7.7 Where the Goods have been manufactured and supplied to Modus by a thirdparty, any warranty granted to Modus shall be passed on to the Customer to theextent that Modus is able and subject to the Goods having been accepted andpaid for by the Customer.

8. Title and risk

8.1 Therisk in the Goods shall pass to the Customer on completion of delivery asstated in clause 6.1.

8.2 Title to the Goods shall not pass to the Customer until Modus hasreceived payment in full (in cleared funds) for:

(a) theGoods; and

(b) anyother goods or Services that Modus has supplied to the Customer,

and no other sums are due from the Customer toModus.

8.3 Until title to the Goods has passed to the Customer, the Customer shallhold the Goods and each of them on a fiduciary basis as a custodier/bailee forModus. The Customer shall store the Goods separately from all other Goods inits possession and marked in such a way that they are clearly identified as theproperty of Modus. The Customer shall not destroy, deface or obscure anyidentifying mark or packaging on or relating to the Goods. The Customer shallmaintain the Goods in satisfactory condition and keep them insured on Modus’behalf for their full price against all risks to the reasonable satisfaction ofModus. On request the Customer shall produce the policy of insurance to Modus.

8.4 Ifbefore title to the Goods passes to the Customer the Customer becomes subjectto any of the events listed in clause 13.1(c) to (e) (inclusive) of the Termsand Conditions, or Modus reasonably believes that any such event is about tohappen and notifies the Customer accordingly, then, provided the Goods have notbeen irrevocably incorporated into another product, and without limiting anyother right or remedy Modus may have, Modus may at any time require the Customerto deliver up the Goods and, if the Customer fails to do so promptly, enter anypremises of the Customer or of any third party where the Goods are stored inorder to recover them.

9. Charges and payment

9.1 TheCharges for the Services (including any Goods where supplied as part of theServices) shall be the price set out in the Service Specification which shallbe payable as follows unless otherwise agreed in writing by Modus:

(a) onreceipt of the Customer’s Order: a non-refundable payment of 50% of the totalCharges on account of Modus’ preparatory works and initial instructions andcosts;

(b) notlater than 21 days prior to the agreed installation date: 35% of the totalCharges; and

9.2 Inrespect of a Contract for the supply of Goods only, Modus shall invoice theCustomer at the times and in the amounts set out in the quotation but if notstated in the quotation then as follows:

(a) 50%of the total price of the Goods is payable when the order is made by theCustomer; and

(b) thebalance 50% of the total price of the Goods is payable 10 days prior todespatch of the Goods or on confirmation that the Goods are ready forcollection (whichever is the earlier).

9.3 Where any additional works are necessary over and above the originalagreed Services or costs are incurred as a result of a Customer Default thenadditional Charges shall be calculated in accordance with the then standarddaily fee rates of Modus.

9.4 Modus shall invoice the Customer:

(a) Inthe case of clause 9.1 above – on the date(s) or events set out in clause 9.1above or otherwise date(s) or events stated in the Service Specification; or

(b) Inthe case of Charges under clause 9.2 or where no invoicing interval isindicated in the Service Specification – monthly in arrears.

9.5 Unless agreed otherwise by Modus, the Customer shall pay each invoicesubmitted by Modus in full and in cleared funds to a bank account nominated inwriting by Modus, and time for payment shall be of the essence of the Contract.

9.6 Allamounts and charges stated or referred to in these Conditions:

(a) arein Sterling (UK Pounds);

(b) are, subject to clause 12.3(b), non-cancellable and non-refundable; and

9.7 Without limiting any other right or remedy of Modus, if the Customerfails to make any payment due to Modus under the Contract by the due date forpayment (Due Date), Modus shall have the right to charge interest on theoverdue amount at the rate of 4% per annum above the then current base rate ofHSBC Bank plc accruing on a daily basis from the Due Date until the date ofactual payment of the overdue amount, whether before or after judgment, andcompounding quarterly.

9.8 TheCustomer shall pay all amounts due under the Contract in full without anydeduction or withholding except as required by law and the Customer shall notbe entitled to assert any credit, set-off or counterclaim against Modus inorder to justify withholding payment of any such amount in whole or in part.Modus may, without limiting its other rights or remedies, set off any amountowing to it by the Customer against any amount payable by Modus to theCustomer.

10. Intellectual Property Rights

10.1 All Intellectual Property Rights in or arising out of or in connectionwith the Services shall be owned by Modus.

10.2 The Customer acknowledges that, in respect of any third partyIntellectual Property Rights, the use by the Customer of any such IntellectualProperty Rights is conditional on Modus obtaining a written licence from therelevant licensor on such terms as will entitle Modus to license such rights tothe Customer.

10.3 All Modus Materials are the exclusive property of Modus.

11. Confidentiality

A party (Receiving Party) shall keep in strictconfidence all technical or commercial know-how, Service Specifications,inventions, processes or initiatives which are of a confidential nature andhave been disclosed to, or otherwise obtained by, the Receiving Party by theother party (Disclosing Party), its employees, agents or subcontractors, andany other confidential information concerning the business of the DisclosingParty or its products or its services which the Receiving Party may obtain. TheReceiving Party shall restrict disclosure of such confidential information tosuch of its employees, agents or subcontractors as need to know it for thepurpose of discharging the obligations of the Receiving Party under theContract, and shall ensure that such employees, agents or subcontractors aresubject to obligations of confidentiality corresponding to those which bind theReceiving Party. This clause 11 shall survive termination of the Contract.

12. Limitation of liability

12.1 Nothing in these Conditions shall limit or exclude the liability ofModus for:

(a) death or personal injury caused by its negligence, or the negligence ofits employees, agents or subcontractors; or

(b) fraud or fraudulent misrepresentation; or

12.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 andthe terms implied by sections 3 to 5 of the Supply of Goods and Services Act1982 are, to the fullest extent permitted by law, excluded from the Contract.

12.3 Subject to clauses 12.1 and 12.2:

(a) Modus shall under no circumstances whatever be liable to the Customer,whether in contract, tort (including negligence), breach of statutory duty, orotherwise, for any loss of profit, or any indirect or consequential lossarising under or in connection with the Contract; and

(b) thetotal liability of Modus to the Customer in respect of all other losses arisingunder or in connection with the Contract, whether in contract, tort (includingnegligence), breach of statutory duty, or otherwise, shall in no circumstancesexceed the Charges paid by the Customer for the Services.

12.4 Except as set out in these Conditions, all warranties, conditions andother terms implied by statute or common law are, to the fullest extentpermitted by law, excluded from the Contract.

12.5 This clause 12 shall survive termination of the Contract.

13. Termination

13.1 Without limiting its other rights or remedies, Modus may terminate theContract with immediate effect by giving written notice to the Customer if:

(a) theCustomer commits a material or persistent breach of the Contract and (if such abreach is remediable) fails to remedy that breach within 10 days of receipt ofnotice in writing of the breach;

(b) theCustomer fails to pay any amount due under this Contract on the due date forpayment;

(c) anorder is made for bankruptcy of the Customer or an effective resolution ispassed for the winding-up of the Customer or the Customer makes a compositionwith creditors or if a supervisor, receiver, administrator, or administrativereceiver is appointed;

(d) anyevent occurs, or proceeding is taken, with respect to the other party in anyjurisdiction to which it is subject that has an effect equivalent or similar toany of the events mentioned in clause (c) above; or

(e) theother party suspends or ceases, or threatens to suspend or cease, to carry onall or a substantial part of its business.

13.2 Without limiting its other rights or remedies, Modus shall have theright to suspend provision of the Services under the Contract or any othercontract between the Customer and Modus if the Customer becomes subject to anyof the events listed in clause 13.1(c) to clause 13.1(e) or Modus reasonablybelieves that the Customer is about to become subject to any of them, or if theCustomer fails to pay any amount due under this Contract on the due date forpayment.

14. Consequences of termination

14.1 Ontermination of the Contract for any reason:

(a) theCustomer shall immediately pay to Modus all of the outstanding unpaid invoicesand interest and, in respect of Services supplied but for which no invoice hasbeen submitted, Modus shall submit an invoice, which shall be payable by theCustomer immediately on receipt;

(b) each party shall return or destroy (as directed in writing by the otherparty) any documents, handbooks or other information or data provided to it bythe other party for the purposes of this agreement. If required by the otherparty, it shall provide written evidence (in the form of a letter signed by itsdirector) no later than 28 days after termination of this agreement that thesehave been destroyed and that it has not retained any copies of them, except forone copy that it may use for audit purposes only and subject to theconfidentiality obligations in clause 11;

(c) theCustomer shall return all of Modus Materials and any Deliverables which havenot been fully paid for. If the Customer fails to do so, then Modus may enterthe Installation Premises of the Customer and take possession of them. Untilthey have been returned, the Customer shall be solely responsible for theirsafe keeping and will not use them for any purpose not connected with thisContract;

(d) theaccrued rights, remedies, obligations and liabilities of the parties as atexpiry or termination shall not be affected, including the right to claimdamages in respect of any breach of the Contract which existed at or before thedate of termination or expiry; and

(e) clauses which expressly or by implication have effect after terminationshall continue in full force and effect.

15. Data Protection

15.1 Inthis clause, “personal data”, “controller”, “processor” and “data subject” havethe meanings given in the UK GDPR, and “Data Protection Legislation” means theUK GDPR, the Data Protection Act 2018, the Privacy and ElectronicCommunications Regulations 2003 (PECR), and any related legislation in forcefrom time to time.

15.2 Modus Living Limited (trading as Modus Fireplaces, company number8099370, registered office Colton House, Princes Ave, London, N3 2DB) is thecontroller of any personal data collected about the Customer, and whererelevant an End Client, in connection with the Contract. Full details of howModus collects, uses, and protects this personal data, and how to exercise yourrights, are set out in our Privacy Notice, available at www.modusfireplaces.com or on request from info@modusfireplaces.com.

15.3 Each party shall comply with the Data Protection Legislation inconnection with the performance of the Contract. This clause is in addition to,and does not replace, either party’s own obligations under the Data ProtectionLegislation.

15.4 Where the Customer is a project advisor providing Modus with thepersonal data of an End Client under clause 4.1(d), the Customer confirms ithas a lawful basis for sharing that personal data with Modus, and has made theEnd Client aware of Modus’ Privacy Notice.

15.5 Each party shall provide reasonable assistance to the other inresponding to a request from a data subject to exercise their rights under theData Protection Legislation, and in dealing with any personal data breachrelating to personal data processed in connection with the Contract.

16. General

16.1 Force majeure:

(a) Forthe purposes of this Contract, Force Majeure Event means an event beyond thereasonable control of Modus including but not limited to strikes, lock-outs orother industrial disputes (whether involving the workforce of Modus or anyother party), failure of a utility service or transport network, act of God,war, riot, civil commotion, malicious damage, compliance with any law orgovernmental order, rule, regulation or direction, accident, breakdown of plantor machinery, fire, flood, storm or default of Modus or subcontractors.

(b) Modus shall not be liable to the Customer as a result of any delay orfailure to perform its obligations under this Contract as a result of a ForceMajeure Event.

(c) Ifthe Force Majeure Event prevents Modus from providing any of the Services formore than two weeks, Modus shall, without limiting its other rights orremedies, have the right to terminate this Contract immediately by givingwritten notice to the Customer.

16.2 Assignment and subcontracting:

(a) Modus may at any time assign, transfer, charge, subcontract or deal inany other manner with all or any of its rights under the Contract and maysubcontract or delegate in any manner any or all of its obligations under theContract to any third party or agent.

(b) TheCustomer shall not, without the prior written consent of Modus, assign,transfer, charge, subcontract or deal in any other manner with all or any ofits rights or obligations under the Contract.

16.3 Notices:

(a) Anynotice or other communication required to be given to a party under or inconnection with this Contract shall be in writing and shall be delivered to theother party personally or sent by prepaid first-class post, recorded deliveryor by commercial courier, at its registered office (if a company) or (in anyother case) its principal place of business, or sent by fax to the otherparty’s main fax number.

(b) Anynotice or communication shall be deemed to have been duly received if deliveredpersonally, when left at the address referred to above or, if sent by prepaidfirst-class post or recorded delivery, at 9.00 am on the second Business Dayafter posting, or if delivered by commercial courier, on the date and at thetime that the courier’s delivery receipt is signed, or if sent by fax, on thenext Business Day after transmission.

(c) This clause 16.3 shall not apply to the service of any proceedings orother documents in any legal action. For the purposes of this clause, “writing”shall not include e-mails and for the avoidance of doubt notice given underthis Contract shall not be validly served if sent by e-mail.

16.4 Waiver:

(a) Awaiver of any right under the Contract is only effective if it is in writingand shall not be deemed to be a waiver of any subsequent breach or default. Nofailure or delay by a party in exercising any right or remedy under theContract or by law shall constitute a waiver of that or any other right orremedy, nor preclude or restrict its further exercise. No single or partialexercise of such right or remedy shall preclude or restrict the furtherexercise of that or any other right or remedy.

(b) Unless specifically provided otherwise, rights arising under theContract are cumulative and do not exclude rights provided by law.

16.5 Severance:

(a) Ifa court or any other competent authority finds that any provision (or part ofany provision) of the Contract is invalid, illegal or unenforceable, thatprovision or part-provision shall, to the extent required, be deemed deleted,and the validity and enforceability of the other provisions of the Contractshall not be affected.

(b) Ifany invalid, unenforceable or illegal provision of the Contract would be valid,enforceable and legal if some part of it were deleted, the provision shallapply with the minimum modification necessary to make it legal, valid andenforceable.

16.6 Nopartnership: Nothing in the Contract is intended to, or shall be deemed to,constitute a partnership or joint venture of any kind between any of theparties, nor constitute any party the agent of another party for any purpose.No party shall have authority to act as agent for, or to bind, the other partyin any way.

16.7 Third parties: A person who is not a party to the Contract shall nothave any rights under or in connection with it.

16.8 Variation: Except as set out in these Conditions, any variation,including any additional terms and conditions, to the Contract shall only bebinding when agreed in writing and signed by Modus.

16.9 Governing law and jurisdiction: This Contract, and any dispute or claimarising out of or in connection with it or its subject matter or formation(including non-contractual disputes or claims), shall be governed by, andconstrued in accordance with, English law, and the parties irrevocably submitto the exclusive jurisdiction of the courts of England and Wales.

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