ModuResources USA Inc. Standard Terms and Conditions

Definitions

The following terms shall have the following meanings unless the context otherwise requires:

"Client": means the party who requests and instructs ModuResources to carry out the Services.
“Client Group”: means the Client, its affiliates and subsidiaries, the officers, directors, employees, representatives and agents of any of them, individually or collectively;
ModuResources Representative": means the person directed by ModuResources USA Inc to provide the Services.
"Services agreements": The Services are to be described in separate agreements, governed by terms and conditions and agreed upon by signature of the parties. "Services / Work": means all services or work provided under these terms and conditions as detailed in the scope of work, purchase order or other instruction from the Client which is accepted by ModuResources.

Application of these Conditions

These terms and conditions shall apply to the provision of all services provided by ModuResources. ModuResources shall not commence any services unless a signed agreement is in place.
No modification or variation hereof shall be effective unless expressly agreed in writing by the parties (or their authorized representative).
If one or more of any provisions of these terms and conditions prove to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed not to form part of this agreement and the validity and enforceability of the other provisions of these terms and conditions shall not be affected.
These terms and conditions are also applicable to any agreements with ModuResources in which third parties are subcontracted either with ModuResources or with Client.
All proposals made by ModuResources are valid for a period of 60 days after the date of issue if not otherwise stated in the proposal.

Limitations

ModuResources shall carry out such activities as is appropriate having regard to all relevant circumstances including to generality of the instructions from the Clients, time constraints or availability of access to facilities, equipment and documentation which is deemed necessary to provide the Services and shall report to the Client as fully as reasonably practicable having regard to such circumstances. In the absence of any express agreement to the contrary ModuResources shall give no guarantee that any organization on any unit or equipment is or shall continue for any period to be free from defects or fit for any purpose.
Any report issued by ModuResources, as part of the Services, may contain explanations to the extent that ModuResources has, whether through lack of time or otherwise, been unable to inspect or evaluate certain parts of any organization, unit or equipment, or is unable without engaging specialist consultants to advise on any particular aspect or part of such organization, unit or equipment and without prejudice to any other provisions contained herein - ModuResources shall have no liability in respect of any matters regarding the services which could not be completed.
Any report issued by ModuResources as part of the Services shall, unless otherwise expressly agreed between the Client and ModuResources, be solely for the benefit of the Client and ModuResources shall not accept any liability for the contents of such report provided to any other party.

Indemnification

ModuResources undertakes to indemnify and hold the Client and Client Indemnified Parties harmless from and against all claims, liabilities, costs, damages and expenses of whatsoever nature arising out of injury to or death of any employee, servant, agent, sub-contractor or invitee of ModuResources and damage to or destruction of any property of ModuResources or any of its employees, servants, agents or invitees arising directly or indirectly as a result of the negligent performance by ModuResources of the Services.
The Client undertakes to indemnify and hold ModuResources and its employees, servants, agents, sub-contractors and invitees harmless from and against all claims, liabilities, costs, damages and expenses of whatsoever nature arising out of injury to or death of any employee, servant, agent or invitee of the Client or any Client Indemnified Parties or damage to or destruction of any property of the Client or the Client's employees, servants, agents, sub-contractors or invitees or the Client Indemnified Parties arising directly or indirectly as a result of the negligent performance by ModuResources of the Services irrespective of whether such injury, death, damage or destruction is caused in whole or in part by negligence on the part of ModuResources or its employees, servants, agents, invitees or sub-contractors.
Notwithstanding anything to the contrary in this Agreement, the liabilities and obligations of the Parties under this clause shall survive the termination of this Agreement in respect of any claims arising during the term of the Agreement or thereafter.
Client Indemnified Parties include the owners of the equipment, facility or service to be inspected, even if the Services are provided prior to the Client being contractually engaged with the party being inspected or audited.
ModuResources shall not be liable to the Client, the Client Group or Client Indemnified Parties for special, indirect or consequential damages resulting from or arising out of these terms and conditions including, without limitation, loss of profit, loss of production, loss of contract, loss of use, business interruption or any other special or indirect loss suffered or incurred by the Client howsoever the same may be caused.

Identification of High-risk Projects

ModuResources clearly depends on the information provided by the Client for initial identification of High-Risk Projects. This information must be complete and sufficient to allow identification by ModuResources and its insurer. Should there be any doubt about the level of risk involved; the Client must alert ModuResources of the details, thereby allowing ModuResources to decide as to the safety of its personnel.

Performance

All commitments with respect to the timing and scope of a project agreed between the Client and ModuResources are to be confirmed in writing. These agreements are made in good faith and will be executed with the best effort but are made necessarily in advance of knowing the full scope of the difficulty that may pertain to performance on specific points. For this reason, whilst ModuResources agrees to use all reasonable endeavors to fulfil such commitments to Clients regarding the timing and the scope of work, ModuResources cannot guarantee performance in either respect (see article 12).
ModuResources reserves the right to decide whether to conduct, begin or continue with a project after evaluating all risks regarding the health, safety and security of its representative.

Confidentiality

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs except as permitted by clause 7.2.
Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under these terms and conditions. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 7.
- As may be required by the law, court order or any governmental or regularity authority.
- No party shall use any other party’s confidential information for any purpose other than to perform its obligations under these terms and conditions.

Obligations of the Client

Client shall ensure that all information provided which is necessary for the performance of the Services by ModuResources is true and accurate and Client shall be solely responsible for the contents therein. The Client is to inform equipment and facility owners and / or management that:
- ModuResources is not responsible for any breakdown and malfunctioning of their equipment or facility during or after the Services.
- They will be entitled to refuse any inspections or tests if they have valid reason to believe that the test may endanger the safety of the equipment, the facility, the personnel, the surrounding environment or the ongoing operation for another party.
The Client shall ensure that all operations and activities agree with local or international regulations and laws and that they act in compliance with these laws and regulations in all areas of health, environment, safety, security, taxes, privacy, etc.
Non-solicitation: During the term of this Agreement and for a period of six months after termination of agreement, the Client shall not solicit for hire or employment any person from ModuResources. Should this occur within the 6-month period, the Client agrees to reimburse to ModuResources an amount equal to thirty-five percent (35%) of that person’s expected annual compensation. Such amounts will be payable on the first day of any such employment or contract of the person for the Client.
The Client is liable for the security, health and safety of ModuResources staff travelling to and from the facility upon their entering the country if the ModuResources employee is not a resident of that country. All possible reasonable precautions are to be taken by the Client to safeguard the ModuResources representative in the same manner as the Client personnel are afforded.

Rights of Ownership

ModuResources warrants that all personnel and subcontractors will be employed on terms that protect the Client’s intellectual property rights as so far as these materials are made available to ModuResources.
Notwithstanding any payments received from the Client, all rights of ownership to all materials prepared by ModuResources, whether written or not, shall remain the property of ModuResources. Copyright and distribution rights are reserved by ModuResources at its sole discretion, except where these rights are explicitly stated in writing to have been waived or where the contract between ModuResources and the Client explicitly so provides or where the material is so endorsed by ModuResources.
ModuResources however grants the right, without prejudice to its position under the previous paragraph, to the Client to copy freely any reports and or documentation in hard or soft copy provided by ModuResources as part of work wholly commissioned by the Client if distribution of these copies is exclusively within the Client's organization or project and accepts the report findings are only applicable for the project commissioned by the Client.
This clause shall apply to all reports, including the final Client report, and all presentation materials. It shall also apply to any audio, photographs or videotaping of any presentations made by ModuResources for the Client. This does not apply to training materials used to support all ModuResources trainings as these may not be copied in any form.
The right to distribute copies of ModuResources material internally within the Client's organization does not extend to multi-client and off-the-shelf market research reports and software that have been purchased from ModuResources. Additional copies of such items for internal distribution are available, at the time of purchase or later.
The Client's interests in respect of this clause and any materials provided by the Client to ModuResources are protected by ModuResources 's blanket confidentiality commitment in respect of the dissemination of all materials related specifically to the Client's affairs.

Expenses

ModuResources proposals and or contracts with Clients stipulate whether they are 'fixed price' (i.e. lump sum, all expenses will be included within the pre-negotiated fee) or 'rates plus expenses' in which case expenses are levied in addition to the agreed rates. This section provides clarification of our standard policy on what expenses will be claimed and how.
The agreed rates apply to all working days, standby days, travel days and report costs. The rates are net and excluding GST/VAT, withholding taxes or local taxes. Should the Client be required to withhold local taxes from the invoice amount, then the Client has the responsibility to inform ModuResources and it will be necessary to increase the rates accordingly. Applicable expenses are charged to the Client at the gross invoice value. Expenses will be charged inclusive of any sales taxes (or similar fiscal levies) where these are payable by ModuResources, whether ModuResources may be able to subsequently reclaim any part of these.
VAT (and any other relevant tax) will be added to the invoice amount in line with applicable government legislation at the rate ruling at the time of invoice.
In case, because of the nature of the Services, the duration of the project changes the tax situation the additional cost incurred by ModuResources or its employees will be reimbursed by the Client. In consultation with the Client and subject to the applicable law ModuResources shall use reasonable efforts to avoid such an increase.
Subject to Client’s instructions, the nature of the Services and possible tax complications, ModuResources shall use reasonable efforts to ensure that no employee shall be physically present in the country (where the services take place) for more than 183 days (6 months) in the last 12 months while performing the Services. The day count is measured as any moment spent during a day and this will be counted as a full day for this purpose.
If ModuResources acquires a permanent establishment (either because of an application filed by ModuResources or by operation of applicable law) in the country where the service will take place, solely by virtue of its performance of the Services, then ModuResources shall make all such registrations and filings and pay all associated Taxes. ModuResources shall then invoice client for such Taxes and Client shall reimburse ModuResources for the same (adjusted for the value of any tax credits available in ModuResources resident country). Furthermore ModuResources shall invoice client (and client will reimburse ModuResources for the same) all external set-up costs and operational/maintenance costs for such a P.E. (e.g. lawyers and accountancy costs), and in case ModuResources employees will become liable for personal income tax from day 01 onwards, ModuResources shall invoice (and Client will reimburse ModuResources for the same) all ModuResources employees personal income tax charges (adjusted for the value of any tax credits available in their resident country).
If the commencing date of the agreed service, which has been confirmed-agreed by the Client, is delayed after the ModuResources personnel have departed and prior to commencing the Client’s Services, then a Standby Rate per day per person will be charged to the Client to cover expenses until demobilized as per Client instructions. If the ModuResources personnel are standby at the project, then the full Working Day Rate is applicable. “Standby Rate” under this clause means the rate applicable during non-working days of ModuResources personnel for reasons attributable to the client.
Invoices will normally be presented monthly or after completion of the Service. ModuResources may, at its sole discretion, choose to present invoices more frequently, to reflect the level of expense accumulating.
When applicable and possible, for work conducted in the same area for another client by a ModuResources representative, the visa costs and travel costs will be shared.
ModuResources is hereby authorized to incur, without prior notice to the Client, 'reasonable' travel expenses (as outlined below) in performing the Client's instructions. The Client agrees to reimburse these at cost plus 5% handling fee.

ModuResources uses a professional visa service, however, if travelling is required by ModuResources personnel to obtain an entry visa for the country where the work will be conducted, then these days will be charged per the working day rate and expenses will be charged.
All travel expenses of the ModuResources representative(s) from their home to the job site, on‑the‑job and return to home, for transportation and all other reasonable expenses including rental car or mileage costs are to be paid by the Client.
‘Reasonable' travel expenses are those generally applied within international corporations for their senior personnel. These vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, Business Class international air travel and Economy (or 'coach') class domestic flights; accommodation, lodging, and incidental costs within a hotel suitable for international business affairs, all meals whilst acting on behalf of the Client within a hotel's restaurant or an equivalent grade of individual premises, 1st class rail travel, taxis and car-hire costs for a mid-size or executive size vehicle as appropriate. Where appropriate to the circumstances, ModuResources reserves the right to vary the class of travel to meet the business needs. Where travel time by airplane is longer than 6 hours, business class will be used except in the case where Client’s travel policy dictates otherwise.
All expenses are payable for the total activity time (as defined above): i.e. including travel to and from the Client’s premises or work location.
Expenses incurred in foreign currency will be billed at the actual exchange rate of the date of invoicing.
ModuResources representatives are required to obtain receipts for expenses wherever practical, copies are included with the invoice unless a per diem is agreed.

Payment Terms

Unless otherwise agreed in writing, all invoices shall be payable in full within 30 days after the date of the invoice. If payments have not been received within the above-mentioned period, two percent (2%) interest will be due over the full amount of the invoice for every month or part of a month that the invoice payment is delayed thereafter.
In the event the Client disputes any item of an invoice submitted by ModuResources, the Client shall, within 10 days after receipt of the invoice, notify to ModuResources the items in dispute and shall specify its reasons for dispute. Payment in respect of such item in dispute shall be withheld until settlement of the dispute but all undisputed items of such invoice shall be paid in accordance with sub-clause 11.1 herein.
The report will be dispatched to the Client only after a service order or contract number is verified and the pro forma invoice is approved.
If the Client fails to make any progress payment without giving notification of due cause, then ModuResources will withhold delivery of any final reports and will not be responsible for any inconvenience, loss or damage so caused.
The currency of payment will be stipulated in the Client proposal / contract. Both parties agree to accept this in respect of all invoices and payments.
Unless otherwise explicitly provided by an individual contract, no account will be taken of any exchange rate fluctuations during the life of the contract. Each party accepts as their own responsibility the variation, whether favorable or unfavorable.
The Client's responsibility is for payment to ModuResources of the full amount agreed. The Client agrees to adjust all payments to consider any charges levied (such as may be made by the transferring bank), so that the full invoice amount is to be received by ModuResources. The Client accepts that ModuResources shall be entitled to recover all deducted amounts.
The Client agrees to make payment by telegraphic transfer to the bank location stipulated in the invoice. ModuResources shall be entitled to recover any costs caused by any Client variations to this amount not agreed in advance.
The Client agrees to pay all government taxes and duties, regardless of origin, that may apply to all payments to ModuResources; if Client and ModuResources are residing in different countries. Each party will be responsible for recovering their own entitlements in respect of pre-payments (for example in respect of VAT or sales tax).
ModuResources shall have the right to suspend all work on behalf of the Client should payments not be made on time to the agreed schedule. Any adverse impact that this suspension has upon the completion schedule or the quality of the Service for the Client shall be at the Client's sole responsibility. This right applies not just to the contract in arrears but also any other contracts with the Client, whether payments against these contracts are in arrears.
Clients should note that where it has been agreed that payment of all or part of a project is to be made 'in advance', work will not commence on the Client's behalf until payment is received.

Liability for Advice Provided and Services Performed

ModuResources provides information, advice, reports and other services in good faith and to its best effort, based upon information available and findings at the time. ModuResources shall carry out all its obligations under the contract and shall execute the services with all due care and diligence and confirms that ModuResources personnel are properly trained, qualified, skilled and experienced to provide the Services. The Services shall be fit for the purpose specified in the scope of work. ModuResources does not guarantee that the Services are without error, that they will achieve a given result, that they meet the demands of the Client, or that they are appropriate for the purpose envisioned by the Client.
ModuResources does not warrant the accuracy of information provided in reports or services or supporting materials but ModuResources uses its best endeavors to perform. It is for the Client to decide whether to accept the advice when making any management decisions or taking further actions. ModuResources never accepts liability for the consequences of a Client’s decision based on this information, opinion and advice; whether direct or indirect.
In all cases the Client is responsible for their management decisions taken after receipt of the ModuResources findings and or report and for overall liability.

Publicity

ModuResources may with the permission of the Client, publicize the fact that the Client is, or was, a Client and utilize the Client's name in publicity materials in this respect. ModuResources may also describe in general terms the type of work conducted for the Client.
Where the results of any commissioned work are cited by the Client, the Client agrees to make due and honorable reference to ModuResources so as to make it clear who carried out the work, except where ModuResources explicitly waives this right. This provision is notwithstanding the over-riding position over ownership of said product. (see article 9.2)

Complaints

Any complaints about the behavior of employees, quality of services, reports or any other activity of ModuResources must be filed in writing to ModuResources preferably within one week following the occurrence of the incident. ModuResources in turn will address this matter per the ModuResources company policy. The complaint will not suspend any activity, or applicability of any obligation of the parties.

End of Contract and Obligations, Insolvency

Any contract obligations between ModuResources and Client will be seriously reviewed and adjusted in the situation of articles 15.2 and or 15.3.
ModuResources will have the right to suspend or end its ongoing services or activities immediately when invoices are outstanding from the Client not suspending any right that ModuResources will be entitled to recover in full all fees and expenses.
ModuResources shall have the right to discontinue immediately all work for the Client should: The Client petition for bankruptcy, or be declared insolvent, or be placed into administrative receivership or be generally unable to pay their bills as they become due.
In the above circumstances ModuResources will also be entitled to have a general lien on all goods and property of the Client that is within ModuResources possession and, following 14 days’ notice to dispose of such goods and property in such manner and at such prices as ModuResources deems fit and to apply these proceeds towards such debts as may be outstanding from Client to ModuResources.

Illegal Activities

ModuResources will not carry out any illegal activities on behalf of the Client. Any requirement in this respect will nullify the contract or any agreement in respect of performance and ModuResources will be entitled to recover in full its fee and expenses.
The Client agrees not to make any illegal use of any information provided by ModuResources.

Limitation of Liability

Without prejudice to other more restrictive limitations elsewhere in these terms and conditions, liability on the part of ModuResources is limited to the total aggregate value of the Services with the Client or the value of the loss whichever is the smaller.

Force Majeure

Force majeure means in respect of either party, any event or occurrence whatsoever beyond the reasonable control of that Party, which delays, prevents or hinders that Party from performing any obligation imposed upon that Party under this contract, including to the extent such event or occurrence shall delay, prevent or hinder such Party from performing such obligation, Acts of God, labor disputes, health protection measures, social unrest, acts of terrorism, security measures upon these acts, war, fire, epidemics, explosions, blockades or unforeseeable official governmental measures and other unavoidable and unforeseeable events or change of circumstances. (see article 6.2)
Where the delay caused by third party events outside either party's control or influence causes such delay or damage that the purpose of the contract is wholly or significantly destroyed, either party shall be entitled in these circumstances to cancel the remaining portion of the project. In such circumstances ModuResources will be entitled to recover any costs already incurred.

Jurisdiction, Law of the Contract

If not mutually decided otherwise, any contract between ModuResources and the Client relating to the provision of services shall be governed by and construed in accordance with Texas, USA law.
In the case of disputes or claims that are the result of the provision of any of the afore-mentioned services or related to these terms and conditions or the agreements or contracts governed by these general conditions, ModuResources and the Client agree to submit any dispute or claim to the non-exclusive jurisdiction of the Texas courts.
Parties can also decide to submit this dispute to a recognized and certified institute of arbitration.
These terms and conditions are drawn up in the English language should they be translated to another language; the original English version shall prevail in case of disputes or differences.

Entire Agreement

These terms and conditions constitute the whole agreement between the parties and supersede all previous agreements.