These Modulos terms and conditions (the “Terms and Conditions”) for the Modulos Freemium Services are by and between:
(1) Modulos AG, a company registered in Switzerland under company number CHE-233.391.866 and whose registered office is at Technoparkstrasse 1, CH-8005 Zurich, Switzerland (“Modulos” or “the Licensor”) and
(2) The Licensee approved by Modulos for the Freemium Services (the “Licensee”).
The Parties agree as follows:
1. DEFINITIONS AND INCORPORATION
1.1 Definitions
“Business Day” means a day (excluding Saturday and Sundays) on which banks are generally open in Switzerland for the transaction of normal business;
“Claim” shall include any declarations, disputes or actions and requests or demands;
“Clause” means a clause of these Terms and Conditions;
“Confidential Information” has the meaning set out in Clause 17 herein below;
“Freemium Service” means the provision of access to and the license to use the Modulos Platform without the obligation to pay a license fee;
“Intellectual Property Rights” means the rights in and to, including without limitation, trade secrets, confidential information; inventions; patents, copyrights, trademarks, service marks, and trade names; rights of publicity; rights (registered or unregistered) in designs, database rights (including rights of extraction), know-how, moral rights, lists of suppliers and customers and the proprietary knowledge in such information, domain names, rights protecting goodwill and reputation and similar rights of all types to the foregoing under the laws of any governmental authority, domestic or foreign, including all renewals, applications and registrations relating to any of the foregoing;
“License” means the license to use the Modulos Platform as provided for in Clause 3 herein below;
“Losses” means any and all charges, damages, liabilities, fines penalties, costs or expenses, including reasonable legal fees incurred by Modulos;
“Modulos Platform” means the platform provided by Modulos with the functionalities as described on https://www.modulos.ai/;
“Modulos Trademarks” means the trademarks, service marks, logos, trade names, business names and brands provided by Modulos to Licensee for use in connection with these Terms and Conditions;
“Party” means either Modulos or the Licensee, and the term “Parties” shall mean both Modulos and the Licensee;
“Term” shall mean the term of validity of these Terms and Conditions;
“User” means a Licensee staff member and/or other person to whom the Licensee makes the Modulos Platform available.
1.2 Sign-up Process
The Licensee must sign-up for the Freemium Services on the Modulos Platform by entering the information requested thereon. The information provided must be complete and truthful. By requesting to be signed-up for the Freemium Services, the Licensee agrees to be bound by these Terms and Conditions.
Modulos will evaluate the sign-up request by the Licensee. It is in Modulos’ free discretion to approve or deny a sign-up request.
When approving the sign-up request by the Licensee, Modulos will send the Licensee the activation and access codes required to use the Freemium Services.
2. TERM AND TERMINATION
The License is granted for an indefinite term and each Party is entitled to terminate the License and these Terms and Conditions subject to a thirty (30) calendar day written notice.
The right of termination for cause as further set out in Clause 15.2 remains unaffected.
3. LICENSE GRANT
3.1 Grant of License by Modulos
Modulos grants the Licensee a non-exclusive, non-transferable, and limited license to use the Modulos Platform subject to all limitations as set forth in these Terms and Conditions. Licensee shall use and cause Users:
(a) to use the Modulos Platform solely in the manner and for the purpose set out on the Modulos Platform; and
(b) The Licensee shall ensure that all Users are reasonably aware of these Terms and Conditions. Each User shall be subject to the restrictions and limitations contained in these Terms and Conditions. Any act or omission by a User that would be a breach these Terms and Conditions if committed by the Licensee shall be deemed a breach of the License by the Licensee.
No other licenses or rights in or to the Modulos Platform other than those specifically set out in these Terms and Conditions are granted to the Licensee and the Licensee acknowledges that nothing shall confer on the Licensee or its Users any right of ownership in the Modulos Platform.
3.2 General license restrictions
The Licensee may not:
(a) sublicense, publish, transmit, transfer, sell, copy, reproduce, distribute, display, modify, alter, create derivative works of, or in any way exploit the Modulos Platform or any derivation or adaptation thereof;
(b) reverse-engineer, decompile, disassemble, reverse compile, create derivate works of, attempt to derive the source code of the Modulos Platform or decrypt any aspect of the Modulos Platform software;
(c) cause, assist or permit any User, or any other third party to do any of the foregoing; or
(d) use the Modulos Platform in any way that is unlawful, illegal, fraudulent, or harmful or use the Modulos Platform in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
3.3 License Grant by Licensee
Licensee grants to Modulos the worldwide, irrevocable, perpetual, non-exclusive, royalty-free right to use anonymized Licensee data and metadata generated from Licensee’s use of the Modulos Platform for the purposes of training the Modulos Platform and/or the Modulos AI/ML models. For clarity, such grant of rights shall survive the termination of the License.
3.4 Compliance with Laws and Regulations
It is the Licensee’s sole responsibility to ensure, and Licensee warrants that its use of the Modulos Platform complies with all applicable laws, rules, and regulations, including, but not limited to any data protection, intellectual property, trade secret and export control regulations. The Licensee agrees to fully indemnify Modulos in the event claims are made against Modulos caused by Licensee’s violation of the warranty contained herein.
4. UPDATES AND UPGRADES
From time-to-time Modulos may, in its sole discretion, effect one or more Updates or Upgrades to the Modulos Platform (e.g. regular Updates to the Modulos Platform). The Licensee shall accept and implement any Updates within a reasonable time. If the Licensee refuses to install Updates, Modulos is not responsible or liable for any problems, which arise due to the missing Update.
5. AMENDMENTS TO MODULOS PLATFORM/SERVICE
Modulos may change the format or nature of the Modulos Platform at any time. Modulos shall use commercially reasonable endeavors to notify Licensee of material functional changes to the Modulos Platform, in writing, including by e-mail. If any such change deters the functionality of the Modulos Platform, Licensee may terminate the License.
Modulos reserves the right to cease its Freemium Service at any time with a 30-calendar day written notice to the Licensee.
Modulos reserves the right to delete and/or disable inactive accounts. Inactive accounts shall be notified for cancellation after thirty (30) calendar days of last activity and shall be permanently deleted after ninety (90) calendar days of the last activity.
6. DATA PROTECTION
Licensee and Modulos shall comply with the applicable data protection legislation in relation to the processing of personal data via the Freemium Service and Modulos Platform. Modulos may collect metrics, analytics, statistics, or other data related to Customer’s use of the Modulos Platform (a) to provide the Services to and for the benefit of the Licensee, including for security and billing purposes, and (b) to analyze, maintain, and improve the Modulos Platform and Services (as further described in Clause 3.4).
7. TECHNICAL SUPPORT
The Freemium Service does not include technical support from Modulos. If the Licensee requires technical support, they must sign-up for the paid services provided by Modulos subject to separate Terms and Conditions.
8. OWNERSHIP
All Intellectual Property contained within the Modulos Platform and Modulos Trademarks shall belong to Modulos. Specifically, all rights pertaining to the software codes (source as well as object code) and other materials (e.g. manuals, documentations etc.) of the Modulos Platform and Service shall solely belong to Modulos.
9. MARKETING
Both Parties are entitled (but not obliged) to disclose the use of the Modulos Platform for advertisement and promotional purposes using the other Party’s name and logo and in the case of Modulos listing the Company on its website in the “Trusted by people at” section.
10. WARRANTIES
Each Party warrants and represents to the other that it shall comply with all applicable laws and regulations in relation to the performance by it of its obligations under these Terms and Conditions. Modulos warrants that it owns rights in the Modulos Platform and that the Modulos Platform to Modulos’ best knowledge, does not infringe the Intellectual Property Rights of any third party. Each Party warrants to the other that it has the authority to enter into these Terms and Conditions and that the performance of the obligations by both Parties hereunder will not violate any regulatory requirements.
11. INSPECTIONS AND AUDITS
During the Term Modulos reserves the right to audit all applicable records pertaining to Licensee’s compliance within the terms of this Agreement, upon reasonable notice and not more than once per year, or when Modulos has reasonable grounds for suspecting non-compliance by the Licensee with the terms of this Agreement or unless there is documented evidence of a discrepancy within such annual audit period and in such an event, Modulos may decide to conduct an additional audit to address such discrepancy. Modulos shall endeavour to minimise any disruption to the Licensee’s operations caused in the event of an audit.
12. EXCLUSION OF WARRANTIES
Except as expressly set out herein Modulos disclaims and excludes all other warranties, representations, conditions and other terms express or implied, (and where implied whether implied by statute, course of dealing, or otherwise), including without limitation any implied terms as to quality, conformance with description, or Terms and Conditions for purpose. Neither does Modulos guarantee the adequacy, accuracy, timeliness or completeness of content or the Modulos Platform or any component thereof. The Modulos Platform is supplied “as is”. No information, content, and materials made available on the Modulos Platform, nor any part of the Services provided by Modulos constitute or are intended to constitute legal advice and the Licensee is explicitly advised to seek expert legal advice to ensure that the use of any information gathered via the Modulos Platform as well as Licensee’s interpretation of it is applicable to or appropriate for Licensee’s intended use and particular situation. This disclaimer does not affect the legally indispensable entitlement of the Licensee to supplementary performance and other claims regarding liability for defects.
13. LIABILITY
13.1 Licensee’s Liability
The Licensee shall be liable to Modulos for any damages caused by Licensee’s breach of these Terms and Conditions.
13.2 Modulos’ Liability
Except in the event of willful intent or gross negligence attributable to Modulos, Modulos shall not be liable to the Licensee or the Users in connection with the License and Licensee’s use of the Modulos Platform for any direct loss or damage. Any liability for indirect, special, or consequential loss or damage arising is fully excluded.
14. FORCE MAJEURE
Neither Party shall be liable for any delay or nonperformance caused by any event beyond its reasonable control provided that the Party affected gives prompt notice in writing to the other Party of such Force Majeure Event and uses all reasonable endeavors to continue to perform its obligations. If the Force Majeure Event continues for at least twenty (20) Business Days, the Party not subject to the Force Majeure Event may terminate the License by notice in writing to the other.
For purposes of these Terms and Conditions, an event of Force Majeure is an event or circumstance which is beyond the reasonable control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected was unable to prevent provided that event or circumstance is limited to the following:
(a) Riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition, or compulsory acquisition by any governmental or competent authority;
(b) Earthquakes, flood, fire or other physical natural disaster, but excluding weather conditions regardless of severity;
(c) National or supranational outbreak of a diseases resulting in severe disruptions to public life and transport due to invasive governmental measures (such as but not limited to lock-downs of areas or public transport); and
(d) Strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected Party, its subcontractors, or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works of these Terms and Conditions.
15. TERMINATION
15.1 Ordinary Termination
Either Party may ordinarily terminate the License and these Terms and Conditions pursuant to Clause 2.
15.2 Termination for Cause
Either Party may terminate the License and these Terms and Conditions by written notice to the other Party, if the other Party:
(a) commits any material or persistent breach of any of the provisions of these Terms and Conditions and, in the case of a breach which is capable of remedy, fails to remedy the same within ten (10) Business Days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
(b) shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due.
15.3 Effect of Termination
Upon termination, Licensee shall immediately cease using the Modulos Platform. Termination of the License shall not affect the accrued rights or liabilities of the Parties nor any provision of these Terms and Conditions which are expressed or required to survive or operate in such event.
16. CONFIDENTIALITY
Both Parties agree to keep all information that they obtain about the business, finances, technology and affairs of the other strictly confidential. The Licensee shall not at any time during the Term nor at any time thereafter directly or indirectly use or disclose trade secrets or Confidential Information relating to Modulos or Modulos’ Service and Modulos Platform. For the purposes of this Clause, Confidential Information shall include any information relating to the business and details of pricing and specific terms about the costs of the Service and Modulos Platform. The provisions of this Clause 16 shall cease to apply to information that has come into the public domain other than by breach of this Clause or any other duty of confidence; and/or information that is obtained from a third party without breach of this Clause or any other duty of confidence; and/or information disclosed to the professional advisers of either Party provided that such advisers are under an obligation of confidentiality no less onerous than that contained in this Clause; and/or information that is required to be disclosed by a government body or court of competent jurisdiction or by operation of law or in order to comply with the rules of a recognised stock exchange.
17. NOTICES
Unless specifically provided otherwise, any notice required or permitted to be given by either Party under these Terms and Conditions shall be in writing and shall only be deemed to have been duly served if hand delivered or sent by e-mail (with the original to be forwarded by registered mail) to the address of the other Party given during the sign-up process or such other address as may be notified by that Party pursuant to this Clause 17.
18. GENERAL
18.1 Entire Agreement
These Terms and Conditions contain the entire agreement between the Parties relating to the subject matter covered and supersedes any previous agreements, arrangements, written or oral, between the Parties in relation to such matters. No amendment, variation or modification of these terms and conditions shall be deemed valid unless it is in writing and signed by the Parties
18.2 Assignment
Licensee shall not assign, or delegate any of its rights or obligations under these Terms and Conditions without the prior written consent of Modulos. Modulos may sub-contract or transfer all or any of its rights or obligations to any third party, provided that in the case of subcontracting, Modulos shall remain responsible for the performance by its sub-contractors of such obligations. Any assignment, sub-licensing or delegation in breach of this Clause 19.2 shall be null and void.
18.3 Independent Parties
Nothing in these Terms and Conditions shall be construed as creating an employment contract, joint venture or agency of any kind between the Parties.
18.4 No Waiver
No failure or delay by either Party in exercising any of that Party’s rights or remedies under these Terms and Conditions shall operate as a waiver of those rights or remedies. No right or remedy of either Party under these Terms and Conditions shall be deemed to be waived unless the waiver is in writing and signed by both Parties. No waiver of any breach of these Terms and Conditions is a waiver of any subsequent or other breach.
18.5 Severability
If any provision of these Terms and Conditions shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the remainder thereof shall not be affected.
18.6 Choice of Law / Forum
The Terms and Conditions shall be governed by the laws of Switzerland excluding its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods (CISG). The Parties submit to the exclusive jurisdiction of the Courts of Zurich (City), Switzerland.
©Modulos Freemium Services Terms and Conditions valid as of: January 13, 2025