MODO ENERGY MASTER SERVICES AGREEMENT (USA)

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN MODO AND CUSTOMER (AS DEFINED BELOW). CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT (THESE “TERMS”) BEFORE SIGNING A SALES ORDER FORM, CLICKING “ACCEPT” ON THE SIGN UP PAGE, OR ACCESSING OR USING ANY MODO PRODUCT OR SERVICE. BY SIGNING A SALES ORDER FORM, CLICKING “ACCEPT” ON THE SIGN UP PAGE, OR ACCESSING OR USING ANY MODO PRODUCT OR SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT AND HAS READ AND ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT IN THEIR ENTIRETY, INCLUDING WITHOUT LIMITATION, THE ARBITRATION AGREEMENT DESCRIBED IN SECTION 10 BELOW. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, MODO’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY MODO PRODUCT OR SERVICE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND CONDITIONED ON THE CUSTOMER’S CONSENT TO THIS AGREEMENT.

1. DEFINITIONS

1.1 The definitions and rules of interpretation in this Section apply in this Agreement

“Agreement” means these Terms and conditions, together with a completed and signed Sales Order Form or a completed Sign Up Page (as applicable). For the avoidance of doubt, each Sales Order Form and completed Sign Up Page between Customer and Modo forms a separate and distinct Agreement.

“Authorized Users” means those employees, agents and independent contractors of Customer or a Customer Affiliate who have been authorized by Customer to use the Services in accordance with these Terms.

“Confidential Information” has the meaning given to it in Section 4.

“Customer” means any entity that purchases one or more Modo Products, as more particularly described in the Sales Order Form or Sign Up Page (as applicable).

“Customer Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control by or with a Customer.

“Data Protection Laws” means any U.S. federal, state and local laws, as well as foreign laws and government-issued rules, regulations, guidelines, directives and requirements currently in effect or later implemented, modified, or amended, as they become effective that relate in any way to the privacy, security and processing of personal data, including data protection laws and their regulation in any jurisdiction applicable to the parties.

“Effective Date” is the date defined in the Sales Order Form, or the date Customer clicks “Accept” on the Sign Up Page.

“Fees” means the amounts specified in the Sales Order Form or Sign Up Page.

“Initial Subscription Term” means the period described in Section 9 of this Agreement.

“Intellectual Property Rights” means any and all intellectual property rights in any part of the world, including patents, rights to inventions, utility models, copyright and related rights, trade and service marks, trade, business and domain names, rights in trade dress, rights to goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semiconductor and topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future.

“Platform” means the platform managed by Modo and used by Modo to provide the Products and Platform Content, including the application and database software for the Products, and the system and server software used to provide the Products;

“Platform Content” means the content contained, now or in the future, on the Platform or otherwise made available to Customer via the Products. Such Platform Content may include text, content, photographs, video, audio and graphics, goods, designs, information, applications, software, music, audio files, articles, directories, guides, photographs as well as any other form of intellectual property.

“Privacy Policy” means the then current Modo privacy policy located at modoenergy.com/privacy-policy (as Modo may update, modify, or change from time to time), which is incorporated herein by reference.

“Products” mean the products ordered by Customer under this Agreement, as more particularly described in the Sales Order Form or Sign Up Page.

​​”Renewal Term” means the period described in Section 9 of this Agreement.

“Sales Order Form” and “Sign Up Page” mean the ordering documents for the Products.

“Services” means, collectively, the Products, Platform and Platform Content.

“Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Term(s) (if applicable).

1.2 Clause, section and schedule headings are for informational and organizational purposes only and shall not affect the interpretation of this Agreement.

1.3 Where the words "include", "includes", "including" or "in particular" are used in an Agreement, they are deemed to have the words “without limitation” following them. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4 If any term in these Terms conflicts with any terms or conditions in a Sales Order Form then the Sales Order Form shall prevail in relation to the Products detailed in that Sales Order Form.

2. SUPPLY OF THE SERVICES

2.1 Modo shall, during the Subscription Term, supply the Services on and subject to this Agreement.

2.2 Customer shall comply with all applicable laws and regulations of any government agency with respect to its own activities under this Agreement and Customer is solely responsible for all uses of Customer’s account. Although Modo has no obligation to monitor Customer’s use of the Services, Modo may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of this Agreement.

3. CUSTOMER’S USE OF THE SERVICES

3.1 Subject to the terms and conditions of this Agreement (including payment by Customer of the Fees in accordance with Section 5 and the restrictions set out in this Section 3), Modo hereby grants Customer a non-exclusive, non-transferable (except as set forth specifically in Section 10.9), non-sublicensable, freely revocable right and license, during the Subscription Term only, to permit the Authorized Users to use the Services, solely for Customer's internal business purposes.

3.2 Customer shall: (a) keep secure and confidential any passwords and/or API keys necessary for accessing and using the Services; and (b) use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, to promptly notify Modo and reasonably cooperate with Modo to block the unauthorized access or use.

3.3 Customer shall not, directly or indirectly: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media, their derivatives, source codes, or templates, or by any means; or (ii) attempt to reverse compile, disassemble, tamper with, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or any other products which Modo owns that is outside of the scope of this Agreement; (b) use the Services in a manner that is illegal or facilitates illegal activity, or causes damage or injury to any person or property or tortuously violates any rights or interests; (c) use any automated system, including "robots," "spiders," or "offline readers," to access the Services in a manner that sends more request messages to the Services than a human can reasonably produce in the same period of time by using a conventional online web browser; (d) attempt to interfere with or compromise the integrity or security of the Services; (e) access all or any part of the Services in order to build or facilitate a product or service that competes with the Services; (f) (without the express prior permission of Modo) license, sell, rent, lease, transfer, assign, distribute, display, disclose, provide, or otherwise commercially exploit, or otherwise make the Services available to any third party (other than to an Authorized User in accordance with Section 3.1); (g) attempt to obtain, or assist any third party in obtaining, access to the Services other than as provided under this Agreement; (h) use the Services after the expiration, termination or default of this Agreement; or (i) purport, promise or agree to do any of the foregoing. Modo may, at its sole discretion and without liability and without being subject to damages, or prejudice to its other rights under this Agreement, disable Customer’s and/or any Authorized Users’ access to the Services for any breach or suspected breach of this Section 3.3.

3.4 Customer shall ensure that all Authorized Users comply with the terms of this Agreement. Customer shall be primarily responsible for all activities conducted under its and its Authorized Users’ logins. Without prejudice to Modo’s other rights under this Agreement, Customer shall notify Modo immediately in the event that any Authorized User is in breach of this Agreement and shall ensure that such Authorized User immediately discontinues its use of the Services. Customer shall reasonably cooperate with Modo to remedy any misuse of the Services or any conduct that is or would constitute a breach of the terms of this Agreement.

4. CONFIDENTIALITY AND USE OF PERSONAL DATA

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Modo includes non-public information regarding features, functionality and performance of the Services. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in delivery of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 Each party shall own all right, title and interest in and to its own Confidential Information. Notwithstanding anything to the contrary, Modo shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Modo will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Modo offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.

4.3 In connection with this Agreement, Modo may obtain information relating to identified or identifiable individuals, such as information required to register and create an account (“Personal Data”). Modo will collect, access, maintain, use, process and transfer such Personal Data solely for the purpose of meeting Modo’s obligations under this Agreement and in compliance with applicable Data Protection Laws and the Privacy Policy.

4.4 As part of the Services, Customer may upload certain files or information to the Platform (“Uploaded Content”) but Customer will not use such features to upload Personal Data or any information subject to the Health Insurance Portability and Accountability Act or Payment Card Industry Data Security Standard. Modo utilizes industry standard systems and procedures to ensure the security and confidentiality of Uploaded Content and to protect against accidental or unlawful destruction or accidental loss, alteration, or unauthorized disclosure or access to Uploaded Content. Modo reserves the right to, and may update or modify such measures from time to time provided that such updates or modifications do not result in any material degradation to the security of the Services or any Uploaded Content. In the event of any loss or damage to Uploaded Content, Customer's sole and exclusive remedy shall be for Modo to use commercially reasonable efforts to restore, if practicable, the lost or damaged data from the latest back-up of such data maintained by Modo in accordance with its standard archiving procedures. Modo shall have no liability whatsoever to Customer for any theft, loss or misuse of Uploaded Content, except to the extent that such liability is caused by Modo’s gross negligence.

5. FEES & PAYMENT

5.1 The Fees will be invoiced and paid in full and in advance for the Initial Subscription Term and each Renewal Term.

5.2 The Fees shall be the prices set out in the Sales Order Form or Sign Up Page (as applicable), except that (i) Modo may adjust the Fees for any Renewal Term by giving written notice to Customer (email acceptable) at least seventy-five (75) days before the start of such Renewal Term, and (ii) on each anniversary of the Effective Date the Fees will be adjusted by the increase, if any, in the Consumer Price Index measure of inflation as set by the US Department of Labor Bureau of Labor Statistics. Other than as expressly provided in the applicable Sales Order Form, renewal of promotional or one-time priced subscriptions will be at Modo’s applicable list price in effect at the time of the applicable renewal.

5.3 Customer will pay each invoice submitted by Modo: (a) within 30 days of the date of the invoice; and (b) in full and cleared funds. If Customer fails to make payment of any and all Fees within thirty (30) days of the invoice becoming due, then, without liability to Customer or prejudice to any of Modo other rights and remedies: (i) Modo may cease to provide and/or disable Customer’s and Authorized Users’ access to all or part of the Services and Modo shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; (ii) Modo shall be entitled to recover all reasonable attorney’s fees and costs (including, but not limited to any court costs, witness costs and appellate costs, if any) and other reasonable costs associated with the collection of such amounts; and (iii) charge Customer interest on the overdue amount(s) on a daily basis at a rate equal to the lesser of one and one half percent (1½%) per month or the maximum amount allowed by law, commencing on the due date and continuing until fully paid, whether before or after judgment.

5.4 All amounts and Fees stated or referred to in this Agreement: (a) shall (unless otherwise detailed in the Sales Order Form) be payable in US Dollars (USD); (b) are exclusive of any applicable taxes or charges (including any sales, use, and excise taxes, or any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder). Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Customer's account, and Customer hereby agrees to pay such taxes; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Modo's income, revenues, gross receipts, personnel, or real or personal property or other assets; and (c) are non-cancelable and all payments are non-refundable. Customer will make all payments without setoffs, withholdings or deductions of any kind.

6. PROPRIETARY RIGHTS

6.1 Customer acknowledges that, as between Modo and Customer, Modo and/or its licensors or partners own all Intellectual Property Rights and any other rights in or arising out of or in connection with the Services. This Agreement does not grant Customer any Intellectual Property Rights or any other rights or licenses in respect of the Services, and Customer shall not acquire or claim any rights in respect of the same by virtue of the rights granted under this Agreement. Modo expressly reserves all right, title and interest in and to any Intellectual Property Rights not specifically granted to Customer herein. Modo grants no license, whether implied or express, except as specifically set forth in this Agreement.

6.2 Customer acknowledges and agrees that all Platform Content is owned by or licensed by Modo or other third parties and is protected from any unauthorized use, copying and dissemination by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Platform Content is also protected as a collective work or compilation under U.S. copyright and other laws and treaties. All individual articles, columns and other elements making up the Platform Content are also copyrighted works. UNAUTHORIZED USE, COPYING, REPRODUCTION, MODIFICATION, PUBLICATION, REPUBLICATION, UPLOADING, FRAMING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING OR ANY OTHER MISUSE OF ANY OF PLATFORM CONTENT IS STRICTLY PROHIBITED.

6.3 Customer agrees to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service. Customer acknowledges that the Platform Content has been developed, compiled, prepared, revised, selected, and arranged by Modo, its affiliates, and their respective contractors, agents, third parties and others (including certain other information sources) through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of Modo and such others. Customer agrees to protect the proprietary rights of Modo and all others having rights in the Platform Content during and after the term of this agreement and to comply with all reasonable written requests made by Modo or its suppliers and licensors of content, equipment, or otherwise to protect their and others’ contractual, statutory, and common law rights in the Platform Content. Customer agrees to notify Modo in writing promptly upon becoming aware of any unauthorized access or use of the Services, or by any individual or entity or of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights.

7. WARRANTY & DISCLAIMER

7.1 Modo warrants that: (a) it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and (b) the Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person.

7.2 Modo shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any ancillary or additional services (if applicable) in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Modo or by third-party providers, or because of other causes beyond Modo’s reasonable control, but Modo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, OTHER THAN AS EXPRESSLY PROVIDED IN THESE TERMS, NO IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS APPLY (INCLUDING ANY IMPLIED WARRANTIES OR TERMS AS TO CUSTOMER'S USE OF THE SERVICES BEING UNINTERRUPTED OR ERROR-FREE OR FITNESS FOR A PARTICULAR PURPOSE). CUSTOMER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT NOTHING HEREIN SHALL BE CONSTRUED AS, OR CONSIDERED A GUARANTEE OF PERFORMANCE OF THE SERVICES BY MODO, INCLUDING, BUT NOT LIMITED TO THE ACCURACY, COMPLETENESS, OR OTHERWISE OF ANY PLATFORM CONTENT. THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, SUBJECT TO REASONABLE DEFECT.

7.3 Customer acknowledges that Modo will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services. Customer further acknowledges that: (a) the Services are provided for information purposes only and are not intended for trading purposes; (b) the Services may include certain information taken from power or commodity market exchanges and other sources from around the world; (c) Modo does not guarantee the sequence, accuracy, completeness, or timeliness of the Services or any information, facts, views, opinions, statements or recommendations contained in any Platform Content; (d) the provision of certain parts of the Services is subject to the terms and conditions of other agreements to which Modo is a party; (e) no part of the Platform Content constitutes a solicitation, offer, opinion, endorsement or recommendation by Modo to buy or sell any commodity or security, or to provide legal, tax, accounting, or investment advice or services regarding the profitability or suitability of any commodity, contract, security or investment; and (f) Platform Content is not intended for use by, or distribution to, any person or entity in any jurisdiction or country where such use or distribution would be contrary to law or regulation. Accordingly, anything to the contrary herein set forth notwithstanding, Modo, its Suppliers, agents, directors, officers, employees, representatives, successors, and assigns shall not, directly or indirectly, be liable, in any way, to you or any other person for any: (i) inaccuracies or errors in or omissions from the Services including, but not limited to, quotes and financial data; (ii) delays, errors, or interruptions in the transmission or delivery of the Services; or (ii) loss or damage arising therefrom or occasioned thereby, or by any reason of nonperformance.

7.4 Customer acknowledges that the content of other websites, services, goods, or advertisements (“Third Party Sites”) that may be linked to the Services is not maintained or controlled by Modo. Modo’s provision of links to Third Party Sites is not an endorsement of any information, product or service that is offered on or reached through such Third Party Site and Modo is not responsible for the availability, content, or accuracy of other websites, services, or goods that may be linked to, or advertised on, the Platform. Modo does not: (a) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Platform; (b) guarantee the accuracy, completeness, usefulness or adequacy of any other websites, services, goods, or advertisements that may be linked to the Platform; or (c) make any endorsement, express or implied, of any other websites, services, goods, or advertisements that may be linked to the Platform. Modo is also not responsible for the reliability or continued availability of the telephone lines, wireless services, communications media, and equipment Customer uses to access the Services.

8. LIMITATION OF LIABILITY

8.1 THIS SECTION 8 SETS OUT EACH PARTY’S ENTIRE FINANCIAL LIABILITY (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF EACH PARTY’S EMPLOYEES, AGENTS OR SUBCONTRACTORS) TO THE OTHER PARTY, INCLUDING IN RESPECT OF: (A) ANY BREACH OF ANY OBLIGATION (WHETHER IMPLIED OR EXPRESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; (B) ANY USE MADE BY CUSTOMER OR AUTHORIZED USERS OF THE SERVICES OR ANY PART OF THEM; AND (C) ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) OR BREACH OF STATUTORY DUTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT ITS USE OF THE SERVICES IS AT ITS SOLE RISK AND ASSUMES SOLE RESPONSIBILITY (AND MODO SHALL HAVE NO LIABILITY) FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES BY CUSTOMER AND/OR AUTHORIZED USERS AND FOR CONCLUSIONS DRAWN FROM SUCH USE.

8.3 SUBJECT TO SECTION 8.4, NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES WHATSOEVER BE LIABLE FOR ANY: (A) LOSS OF PROFITS, REVENUES OR OPPORTUNITY COSTS; (B) LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES; (C) LOSS OR DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR INJURIES; (D) LOSS OR CORRUPTION OF DATA OR INFORMATION; (E) PURE ECONOMIC LOSS; (F) SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWSOEVER ARISING UNDER THIS AGREEMENT.

8.4 NOTHING IN THIS AGREEMENT EXCLUDES A PARTY’S LIABILITY FOR: (A) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (B) ANY OTHER LIABILITY WHICH MAY NOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

8.5 SUBJECT TO SECTION 8.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY CUSTOMER FOR THE PRODUCT(S) DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

9. TERM AND TERMINATION

9.1 Subject always to either party’s right to terminate pursuant to this Section 9, this Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term.

9.2 After the Initial Subscription Term, this Agreement shall automatically renew for successive periods of equal duration to the Initial Subscription Term (each a “Renewal Term”), unless either party gives written notice to the other to terminate this Agreement not less than sixty (60) days before the end of the Initial Subscription Term or any Renewal Term (as the case may be), in which case this Agreement shall terminate at the end of the Initial Subscription Term or the then current Renewal Term (as applicable).

9.3 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving written notice to the other if: (a) (i) the other party is in material breach of this Agreement where the breach is incapable of remedy; or (ii) the other party is in material breach of this Agreement where the breach is capable of remedy and the breaching party fails to remedy that breach within thirty (30) days after receiving written notice of such breach; (b) the other party enters into an arrangement for an assignment for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (c) any event analogous to those described in Section 9.4(b) above happens to the other party.

9.4 On termination of this Agreement for any reason: (a) all licenses and other rights granted by Modo under this Agreement shall immediately terminate; (b) Customer shall immediately pay to Modo all outstanding unpaid invoices and interest and, in respect of Products rendered but for which no invoice has been submitted, Modo will submit an invoice, which will be payable by Customer immediately on receipt; and (c) the accrued rights of the parties as at termination, and Sections 1, 3.2, 3.3, 3.4, 4 and 6 through 10, will survive any expiration or termination of this Agreement.

10. GENERAL

10.1 Neither party shall have any liability to the other under or in connection with this Agreement if it is prevented from, or delayed in performing, its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control (a “Force Majeure Event”), including strikes, lock-outs or other industrial disputes (whether involving the workforce of either party to this Agreement or any other party), failure of a utility service or transport network, act of God, war, riot, internet interruptions, civil commotion, malicious damage, compliance with any law or governmental order, rule, change in law, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. If a Force Majeure Event prevents, hinders, or delays a party’s performance of its obligations under this Agreement for a continuous period of more than 6 months, either party may terminate this Agreement immediately on written notice to the other party.

10.2 Modo shall be permitted to identify Customer as a Modo customer on its website or other marketing materials and accordingly, Customer hereby grants to Modo the right to use and display Customer’s name, logo and/or any other identifying words or marks associated with Customer, in whole or in part, and in any media for such purposes.

10.3 The parties are independent contracting parties and owe no fidicuiary or other duties to each other except as set forth in this Agreement. Neither party has, or will hold itself out as having, any right, title or authority to incur any obligation on behalf of the other party, unless expressly authorized in writing to do so. The parties relationship in this Agreement shall not be construed as a joint venture, partnership, franchise, employment or agency relationship, or as imposing any liability upon either party that otherwise might result from such a relationship. This Agreement shall not prevent Modo from entering into similar agreements with any third parties, or from independently developing, using, selling or licensing documentation, products and/or services that are similar to those provided under this Agreement.

10.4 Customer recognises that Modo always seeks to innovate and find ways to improve the Services with new features and functions. Customer agrees that Modo may therefore change the Services (i) without notice provided such changes do not materially adversely affect the nature or quality of the Products, or (ii) on written notice to Customer where such changes will materially adversely affect the nature or quality of the Products, provided that Customer shall have the right to terminate the Agreement on giving written notice to Modo not more than one (1) month following any such change taking effect. Subject to the preceding sentence, no variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

10.5 Customer may submit feedback or ideas about the Services, including how to improve the Services or any other service offered by Modo (“Feedback”). Customer acknowledges that no further consideration is payable as a result of such Feedback, and that Modo is free (but not obligated) to use the Feedback on a non-exclusive and non-confidential basis for any business purpose, during or after the Subscription Term.

10.6 A waiver of any right under this Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

10.7 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-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 this Agreement shall not be affected. If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

10.8 This Agreement, and any documents referred to in it, constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter (including any Customer purchase orders). Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in this Agreement. Each party represents and warrants that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings (or the failure or omission of the other party to make statements, assurances, representations or undertakings) (together “Pre-Contractual Statements”) other than what is expressly set forth in this Agreement. Each party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements, including any claim it was induced into entering into this Agreement or accepting its terms based on any Pre-Contractual Statements.

10.9 Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement as a whole without such consent to an entity of good standing (other than any direct competitor of the other party) capable of complying with the rights and obligations under this Agreement succeeding to all or substantially all of such assigning party’s assets or business.

10.10 A person who is not a party to this Agreement shall not have any rights under or in connection with it. No third party beneficiaries are created by this Agreement.

10.11 All notices must be in English, in writing, addressed (a) in the case of Modo to legal@modoenergy.com, and (b) in the case of Customer to the postal address or email address detailed in the Sales Order Form or Sign Up Page, or such other address as either party has notified the other in accordance with this Section. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).

10.12 ​​This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by New York law, excluding laws relating to conflicts or choice of law. If any dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) the parties shall use all reasonable endeavors to resolve the Dispute in good faith within sixty (60) days of such Dispute arising. Unless otherwise agreed in writing, all discussions shall be conducted without prejudice to the rights of each of the parties. If the parties fail to agree upon the terms of a settlement within sixty (60) days (or such other time as the parties may agree) either party may, subject to this Section 10.12, commence arbitration. All disputes and controversies arising under or in connection with this Agreement (including non-contractual disputes and claims) shall be submitted to final and binding arbitration before a single arbitration under the JAMS arbitration rules. The arbitrator will conduct such proceedings efficiently and expeditiously, and discovery will be limited to the exchange of relevant documents and names of witnesses. The arbitrator is empowered to grant preliminary relief and shall decide any disputes concerning arbitrability. The arbitrator shall conclude any arbitration hearing within 120 days of being empaneled, and shall render a reasoned decision within 30 days of the conclusion of the hearing. The parties’ agreement to arbitrate and any arbitral award shall be enforced under the Federal Arbitration Act and may be enforced in the federal or state courts located in New York, New York. The parties irrevocably agree and unconditionally consent to the exclusive jurisdiction and venue of said courts for such purposes. Unless this Agreement has already been terminated by the date of notice of the Dispute, and without prejudice to either party’s right to terminate under Section 9, Modo shall continue to supply the Services as set forth herein and Customer shall continue to make payments in accordance with Section 5 while a Dispute is pending, and any cure period will be tolled during the pendency of a Dispute. Nothing in the foregoing shall prevent any party from seeking emergency or injunctive relief to maintain the status quo pending resolution of the parties’ Dispute. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

10.13 In the event of any dispute among the parties hereto with respect to any of the terms or provisions in Section 5 (Fees & Payment) of this Agreement, the non-prevailing party shall pay or reimburse the prevailing party for all fees and expenses incurred with respect thereto, including without limitation any legal and attorney’s fees and expenses incurred by the prevailing party in connection therewith.

10.14 The Services Modo makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use any Service in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

Last Updated: 1 February 2025

Previous versions of these terms are available here.