Modus Master Terms of Service

These Master Terms of Service (the “Terms”) govern the use of the Modus online sales enablement service and platform (the “Service”). The Software is owned, developed, operated, and maintained by Modus Engagement, Inc., a Delaware corporation with its principal office in Minneapolis, Minnesota, U.S.A. (“Modus”) and its licensors.

Capitalized terms that are defined in these Terms have the specific definitions given to them whenever they are used. When used in this Terms, the term “Software” includes all user manuals and other documentation for the Software offered by Modus in any form.

These Terms are also subject to all terms and conditions found within the following additional agreements (the “Additional Agreements”), all of which are accessible via links the Modus website (https://www.gomodus.com) (the “Website”):

• Modus Privacy Policy
• Modus Data Processing Agreement (the "DPA")

By accessing and using the Software, and accepting these Terms, you agree to be legally bound by all terms and conditions of the Additional Agreements. The Additional Agreements are incorporated into and made part of these Terms by reference. Customers of Modus are responsible for assuring that their authorized users abide by these Terms and the Additional Agreements.

PLEASE READ THESE TERMS AND THE ADDITIONAL AGREEMENTS CAREFULLY. THESE TERMS AND THE ADDITIONAL AGREEMENTS FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND MODUS REGARDING YOUR USE OF THE SOFTWARE. BY ACCESSING OR USING THE SOFTWARE, YOU ACCEPT AND AGREE TO ABIDE BY THE TERMS AND THE ADDITIONAL AGREEMENTS. IF YOU DO NOT AGREE WITH THESE TERMS AND THE ADDITIONAL AGREEMENTS, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE.

[Modus provides subscription licenses to the Software directly to its customers and indirectly through its authorized distributors and resellers (a “Distributor”). These Terms govern all direct and indirect subscription licenses. Modus provides Software support and maintenance terms under these Terms. Carousel training, creative design services, and other Modus services are provided subject to the separate Modus General Services Terms available online.]

If a Modus customer obtains a license from a Distributor, then the subscription, pricing, payment, and taxes terms agreed upon with such Distributor shall take precedence over these Terms.

1. Customer Subscriptions

1.1 Orders. Modus will host, operate, support, maintain, and provide the Service to the customer (“Customer”) for online access and use subject to the schedule, pricing, and the other specific terms stated the online order form signed completed by Customer upon registration (the “Order”). Customer’s subscription for the Service is subject to renewal and cancellation as provided by these Terms. These Terms will continue in force and effect for the full term of Customer’s subscription stated in the applicable Order. Any changes or additions to an Order must be in writing and approved by an authorized representative of Modus and Customer. Any updates, modifications, enhancements, or new versions of the Service provided to Customer shall be subject to these Terms unless the parties agree otherwise in writing. Modus and Customer may enter multiple Orders subject to these Terms, provided such Orders are signed by an authorized representative of each party.

1.2 Priority. In the event that these Terms conflict with any Order, these Terms shall control the Order explicitly states that the Order shall control.

1.3 Trial Use. Modus may offer the Service to Customer free of charge for an initial trial period (a “Software Trial”) subject to these Terms. Unless Modus and Customer agree otherwise in writing, either party may cancel a Software Trial at any time during the subscription period for any reason without further liability to the other party. MODUS WILL HAVE NO MONETARY LIABILITY TO CUSTOMER FOR ANY CLAIMS ARISING UNDER OR RELATING TO A SOFTWARE TRIAL, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.

1.4. Applicability of Additional Agreements. The DPA governs the use of the Service to process personal data of an individual, including Users (as defined in Section 2.1) and any third parties. Customer is responsible for complying with all applicable laws in collecting, copying, using, and processing personal data and otherwise complying with all applicable terms and conditions of the DPA. Customer also acknowledges and agrees that the Modus Privacy Policy states the Company’s practices and policies for collecting and using personal data of Users. Customer expressly acknowledges and agrees that any use of the Service to display, store, maintain or disseminate, send, host, transfer, or otherwise process or use any personal data of natural persons located in the European Union is subject to the DPA.

2.0 Access and Use.

2.1 License. Modus grants Customer a right and license to access and use the Service for Customer’s own internal business purposes for the term of Customer’s subscription. Customer may grant access to its employees, agents, consultants, and contractors who need to access and use the Service for Customer’s business purposes (the “Users”). The license limitations and usage restrictions stated in these Terms apply to all Users. Each authorized User shall have a separate user account with a username, password, and such other credentials as Modus may require in its business discretion.

2.2 No Delivery of Code. Modus is only obligated to provide the Service as a hosted software application for remote access by Customer and Users. Modus has no obligation to deliver any software code to Customer in object or source format pursuant to these Terms.

2.3 Customer's Responsibility for Users. Customer is responsible and liable for all uses of the Service made by Users, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Customer shall make all Users aware of these Terms and shall assure that they comply with such Terms.

2.4 Third-Party Services. To the extent that the Service includes or incorporates any software or technology licensed to or provided to Modus by a third party, Modus hereby grants Customer sublicenses to use such software, technology, or services that are co-extensive with the licenses under Section 2.1. Any open source or free software code ("Open Source Software") incorporated into our provided with the Service is provided subject to the terms and conditions of the license under which Modus received the Open Source Software. Customer shall be bound by the same Open Source Software license terms even though Customer is not entering a separate open source license agreement. For the term of customer's subscription, Modus shall maintain a current record of all Open Source Software used or provided the current release of the Service and the name of the license governing such software. Modus will provide Cusotmer with access to these records upon request.

2.5. Restrictions on Use. Customer and all Users expressly agree that they shall not:  (a) access or use the Service in any way other than through the standard interface; (b) attempt to rent, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Service available to any third party; (c) use another software program or other technology to interoperate with, extract data or content, or scrape or frame any data or content from the Service; (d) attempt to copy or create derivative works based on the Service, either alone or through any third party; (e) attempt to produce a source listing, decompile, disassemble, or otherwise reverse engineer the Service; (f) interfere with or disrupt the performance of the Service; (g) attempt to gain unauthorized access to any data stored in the Service; or (h) remove or obscure any notices or markings, including without limitation, copyright, trademark, or confidentiality notices, or ownership notices on the Service, including any screens it displays.

2.6 Suspension of Use. Modus may suspend Customer's and any User's access to any portion or all of the Service if: (a) Modus reasonably determines Customer's or any User's use of the Service disrupts or poses a security risk to Modus's operation of the Service for any other customers, or threatens Modu's intellectual property rights; (b) Modus reasonably believes a Customer or any User is using the Service for fraudulent or illegal activities, or otherwise in violation of the usage restriction stated in Section 2.5; (c) CUstomer has ceased to continue its business in the ordinary course, make an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) Customer does not pay all agreed fees as provided by Section 5. [Aq} Modus shall use commercially reasonable efforts to provide written notice of any suspension of the Service to Customer and to provide updates regarding resumption of access if applicable. Modus will have no liability for any damage, liabilities, losses (including any loss of data profits), or any other consequences that Customer or any User may incur as a result of the suspension of the Service pursuant to this section.

3. Customer Content.

3.1 Customer Content Defined. The Service enables Customers to store, manage, create, display, and share text, images, and video files and content (the "Customer Content"). Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to the use of the Customer Content. Customer grants Modus a royalty-free, worldwide, non-exclusive right and license to store, copy and process the Customer Content as necessary to provide the Service functionality to Users and perform its other obligations under these Terms.

3.2 Acceptable Use. The Customer represents, warrants, and agrees that: (a) Customer and Users shall use the service and the Customer Content in compliance with all applicable federal, state, local, and international laws and regulations; (b) Customer owns or has secured all intellectual property rights necessary for use of the the Customer Content with the Service; (c) Customer's and User's use of the Customer Content with the Service, and the Customer Content itself, does not and will not infringe any patent, trademark, trade secret, copyright, other intellectual property rights, or other legal rights of any other person; (d) the Customer Content does not and will not contain any content or material that is unlawful, threatening, harassing, profane, obscene, indecent, abusive, tortuous, defamatory, libelous, deceptive, fraudulent, or that violates a person’s privacy, or publicity rights; (e) the Customer Content does not and will not promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (f) the Customer Content will not promote or assist in any illegal or unlawful acts; and (g) the Customer Content does not and will not contain a software virus or other harmful component.

3.3 Data Security. Modus shall take appropriate technical and organizational measures to secure, protect, and maintain the integrity and availability of the Customer Content. Customer and Users are responsible for maintaining the confidentiality of all usernames and passwords required to access and use the Service. If the confidentiality of such information is compromised, Customer shall promptly notify Modus. 

3.4 Performance Data. Modus may monitor Customer’s use of the Service to compile anonymous performance data related to the Service (the “Performance Data”). Modus will have an unrestricted right to store, analyze, evaluate, and use the Performance Data for its own internal business purposes, including improving the features, performance, and functionality of the Service. Modus warrants and agrees that the Performance Data shall not include any information which identifies or can be attributed to Customer, or any personal data of User or any third party.

4. Service Level and Support

4.1  Service Availability. Unless otherwise specified in an Order, and except for all scheduled maintenance, Modus will make the Service continuously available for access and use for the term of Customer's subscription.

4.2  Support and Maintenance. Modus will provide email, text-based, or telephone support for the Service from 8:00 a.m. to 5:00 p.m. U.S. Central Time, Monday through Friday, excluding U.S. Federal Holidays. Support shall include assistance with general usage and functionality issues, and software error reporting and fixes. Modus will make reasonable commercial efforts to correct or fix reported software errors promptly after being notified of a problem.

4.3  Changes. Modus has the right to modify or make changes to the Service as it determines in its business discretion. Modus will make reasonable commercial efforts to notify Customer at least 30 days in advance of any changes to the Service that will have a material effect on the features or functionality of the Service (a “Change Release”). Modus will provide a description or other information regarding the Change Release as reasonably requested by Customer.

4.4  Equipment Costs. Subject to the payment by Customer of all applicable fees due pursuant to the Customer’s Order and these Terms, Modus will bear the cost of hosting, operating, supporting, maintaining, and providing the Service, including Internet bandwidth, server computers, and network equipment. Customer will be responsible for all equipment, network, and other costs necessary for Customer to access and use the Service via the Internet.

4.5  Ancillary Services. Except for support and maintenance services provided pursuant to Section 4.2, Modus is not obligated to provide Customer with any consulting or other services related to the use of the Service unless the parties specifically agree otherwise in an Order or a separate written services agreement.

5.  Fees.

5.1  Fee Terms. Modus will provide the Service to Customer for all fees stated in the applicable Order or Orders. Unless an Order provides otherwise, Modus will bill Customer for subscription fees for the Service annually in advance of subscription term, and invoices will be due and payable in full within 30 days of the invoice date. All amounts due are payable in U.S. dollars. Any sales, use, value-added, excise, or other taxes which Modus is required to collect under applicable law will be in addition to the fees. Overdue invoices are subject to interest of one and one-half percent (1.5%) per month on the outstanding balance, or the maximum permitted by law, whichever is less, plus all reasonable expenses of collection. Unless explicitly stated otherwise in the Order, all fees are non-refundable. Orders may include additional billing or payment terms which supplement or supersede this section.

5.2  Additional Fees.  Any additional fees or charges due pursuant to an Order or these Terms, including, without limitation, any costs, expenses, disbursements, accrued interest, late fees and other charges, will be invoiced by Modus on a monthly basis unless the parties agree otherwise in writing.

5.3. Fee Changes.  Subscription fees for the Service and other fees charged by Modus are subject to periodic increases. Subscription fee increases will be effective at the start of the next year of the subscription term, or 60 days after Modus first notifies Customer of the fee increase, whichever is later.

5.4  Adding Users; Audits. The subscription fees will be based on the number of authorized User licenses purchase by Customer as stated in the applicable Order. Customer shall have the right to increase the number of authorized Users in its discretion by issuing additional user credentials. Modus will periodically audit and review Customer’s actual usage records for the Service and will increase subscription fees as necessary to provide for the current number of actual Users.

6. Confidentiality. 

6.1  Definition. Modus and Customer may exchange or disclose certain confidential or proprietary technical, product, financial, and business information to each other (“Confidential Information”) in the course of performing the Order and these Terms. Confidential Information is limited to information which is clearly marked “confidential” or “proprietary” in any readable form, or which a person exercising reasonable business judgment would have understood to be confidential or proprietary under the circumstances of the disclosure. Unless the parties agree otherwise, the terms of all Customer Orders shall be considered Confidential Information.

6.2. Obilgations. Modus and Customer will hold all of each other’s Confidential Information in strict confidence and will only use it to perform their respective obligations and exercise their rights pursuant to these Terms. A party receiving Confidential Information (“Receiver”) may only disclose it to its employees, agents, consultants, and professional advisors (“Representatives”) who have a good faith need to know the information for the purposes of performing the parties’ obligations under these Terms or an Order, provided that the Representative receiving the information has a confidentiality obligation to the Receiver which is at least as protective of the rights of the party disclosing the information (“Discloser”) as these Terms. The Receiver shall protect and safeguard Confidential Information against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own confidential or proprietary information of a similar nature, and in any event by use of no less than a reasonable degree of care.

6.3  Limitations. These Terms impose no obligation with respect to information which the Receiver can be establish by legally sufficient evidence: (a) is now or hereafter becomes generally known or available to the public through no act or omission by the Receiver; (b) was known by the Receiver prior to receipt from the Discloser and without restriction as to its use or disclosure; (c) is rightfully acquired by the Receiver from a third party who has the right to disclose it and who provides it without restriction as to its use or disclosure; or (d) is independently developed by the Receiver without access to or use of the Discloser’s Confidential Information.

6.4  Compelled Disclosures. If the Receiver receives a subpoena or other validly issued administrative or judicial process demanding the Discloser’s Confidential Information, the Receiver must promptly notify the Discloser and tender the defense of the matter to the Discloser. Unless the demand has been timely limited, quashed, or extended, the Receiver will be entitled to comply with such demand to the extent required by law. If requested by the Discloser, the Receiver provide reasonable cooperation in the defense of the matter at the Discloser’s expense.

6.5  Ownership. Each party retains all intellectual property rights in and to its own Confidential Information. 

6.6. Survival. The confidentiality obligations of Modus and Customer shall survive the termination of Customer’s most recent subscription for a period of five (5) years, except that Confidential Information qualifying as a trade secret under applicable law shall be protected for as long as it retains such status.

6.7   Return or Deletion of Materials.  Upon request of the Discloser, the Receiver will promptly return all tangible or other items containing or embodying the Confidential Information and all copies thereof to the Discloser. The Receiver shall also delete all electronic files containing Confidential Information if requested by the Discloser, and shall certify as to the deletion of such files upon completion.

7.  Publicity.  Modus and Customer shall obtain each other’s consent before issuing a formal press release announcing any business relationship. Customer hereby authorizes Modus to refer to Customer in its marketing materials, including on Modus’ websites and in case studies. Customer hereby grants Modus a limited right to use and depict Customer’s business name and trademarks for such purposes, subject to Customer’s usage guidelines. All use of Customer’s business name and trademarks pursuant to these Terms shall inure to Customer’s benefit.

8.  Intellectual Property Rights. 

8.1  Modus's Rights. Modus and its licensors retain all ownership and intellectual property rights to the Service not specifically granted to Customer. Customer shall only have the access and usage rights to the Service as expressly provided by these Terms. Modus shall own all intellectual property rights in and to any and all software code, logic, technology, ideas, concepts, know-how, methods, and techniques that it conceives, creates, makes, or develops in providing the Service pursuant to these Terms.

8.2  Feedback. If Customer submits comments, ideas, or feedback to Modus regarding the Service or anything related to the functionality or use of the Service, Modus may use such information without restriction and without payment of any compensation to Customer. Modus does not waive any rights to use similar or related ideas or feedback previously known to Modus, developed by Modus, or obtained from sources other than Customer.

9.  Warranties and Disclaimers.  

9.1  Mutual Warranties.  Modus and Customer hereby represent and warrant that: (a) they are duly organized, validly existing, and in good standing under the laws of the respective jurisdictions in which they were formed; (b) each of them has full power and authority to execute, deliver, and perform these Terms and Order; (c) these Terms and the Order have been duly authorized by each party, and upon acceptance the Terms and Order constitute valid and binding legal obligations of Modus and Customer; and that (d) all parties’ obligations under these Terms shall be performed in compliance with any obligations to third parties and all applicable law, rules, or regulations of any governmental entity or agency.

9.2  Service Warranty. Modus represents, warrants, and covenants to Customer that Modus will provide the Service using personnel with the required skill, experience, and qualifications, and in a professional and workmanlike manner, and that it will devote adequate resources to meet its obligations under the applicable Customer Order and these Terms.

9.3  General Disclaimer. SUBJECT TO SECTION 9.2, MODUS PROVIDES THE SERVICE “AS IS.” MODUS DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, OPERATION, SECURITY, RELIABILITY, ACCURACY, AVAILABILITY, AND QUALITY OF THE SERVICE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, MODUS MAKES NO WARRANTY THAT THE SERVICE WILL MEET A CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY SOFTWARE IS PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SOFTWARE IS STRICTLY BETWEEN CUSTOMER AND THE OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SOFTWARE.

10.  Term and Termination. 

10. 1  Term.  The Customer’s subscription starts and shall continue for the terms stated in Customer’s most recent Order. Customer’s subscription shall renew annually after the initial term unless one party notifies the other of its election to terminate the Customer’s subscription at least 60 days prior to the end of the current term. The parties may vary the term of Customer’s initial and renewal subscriptions via the Order.

10.2  Termination for Breach.  A party may terminate the Customer’s subscription if the other party is in material breach of the Order or these Terms and has not cured the breach within thirty (30) days of receipt of a notice from the other party specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, provided the breaching party is making diligent, good faith efforts to cure.

10.3. Effect of Termination. Customer’s rights to access and use the Service will cease upon termination of the Customer’s subscription according to its terms or by action of either party. Upon early termination, Customer will be obligated to pay all subscription and other fees due to Modus which accrued through the termination date.

10.4  Disposition of Customer Content. Unless Customer’s subscription was terminated for an uncured breach by Customer, Customer shall have access to the Customer Content for downloading for 60 days after the termination or expiration of Customer’s subscription. Modus shall have no obligation to maintain or provide any Customer Content more than 60 days after the termination or expiration of the subscription. If Customer’s subscription was terminated for an uncured breach by Customer, Modus reserves the right to charge fees to Customer for obtaining access to and copies of the Customer Content.

11.  Indemnification. 

11.1. Indemnification by Modus. Modus shall indemnify, defend, and hold harmless Customer its officers, directors, employees, agents, successors, and permitted assigns (each, an “Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs (collectively, “Losses”) incurred by an Indemnitee arising out of or relating to any claim, legal action, or demand of any nature (collectively, an “Action”) brought by a third party to the extent that such Losses arise from or relate to an allegation that:

(a)            Customer’s use of the Service infringes the copyright, U.S. Patent, trade secret, or trademark rights of such third party; or

(b)           Modus’s gross negligence or more culpable act or omission caused the Losses.

11.2  Limitations on Modus's Indemnification.  Modus’s indemnification obligations do not apply to any Losses or Action arising out of or relating to:

(a)            Customer’s use of the Service in or with, any technology, products, or services not provided by Modus;

(b)           any modification of the Service made by Customer or anyone other than Modus, or made without Modus’s express written approval;

(c)            negligence, abuse, misapplication, or misuse of the Service by or on behalf of Customer or a third party;

(d)           Customer’s use of the Service in any manner that is not authorized by these Terms;

(e)            events or circumstances outside of Modus’s commercially reasonable control, including any third-party hardware, software, or system bugs, defects or malfunctions; or

(f)            an allegation that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under these Terms.

11.3  Customer's Indemnification. Customer shall indemnify, defend, and hold harmless Modus its officers, directors, employees, agents, successors, and permitted assigns (each, an “Indemnitee”) from and against any and all Losses incurred by the Indemnitee in connection with any Action brought by a third party based on any allegation in such Action of or relating to:

(a)            any Customer or third-party technology, products, or services, provided by Customer other than the Service;

(b)           any facts that, if true, would constitute a breach by Customer of any of its representations, warranties, covenants, or obligations under these Terms;

(c)            Customer’s gross negligence or more culpable act or omission; or

(d)           Modus’s performance of any support or other services by or on behalf of Customer in material compliance with these Terms.

11.4  Indemnification Conditions. The parties shall indemnify each other pursuant to this Section 11 provided that: (a) the Indemnitee notifies the indemnifying party promptly in writing of the Action; (b) the indemnifying party has control of the defense and all related settlement negotiations with respect to the Action, provided that, (i) the Indemnitee has the right to participate in the defense of any such Action through counsel of its own choosing, and that (ii) all settlements made by the indemnifying party include a full release of all claims against and obligations of the indemnitee related to the Action; and (c) the indemnitee cooperates fully to the extent necessary, and executes all documents necessary for the defense of any such Action.

12.  Limitations of Liability.

12.1  SUBJECT TO THE EXCEPTIONS STATED IN SECTION 12.3, THE AGGREGATE LIABILITY OF THE PARTIES TO EACH OTHER FOR CLAIMS RELATING TO THESE TERMS AND THE ORDER, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL RIGHT, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING BY CUSTOMER FOR THE MOST RECENT ONE (1) YEAR TERM OF CUSTOMER’S SUBSCRIPTION TO THE SERVICE.

12.2. SUBJECT TO THE EXCEPTIONS STATED IN SECTION 12.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, HOWEVER THE CLAIM ARISES, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL RIGHT, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

12.3  The exclusions and limitations provided by Sections 12.1 and 12.2 do not apply to: (a) Losses arising out of or relating to a party’s breach of the intellectual property rights of the other party or breach of its confidentiality obligations to the other party under these Terms; and (b) either party’s indemnification obligations under these Terms.

13.  General. 

13.1  Entire Agreement. These Terms and all valid Orders represent the entire agreement of Modus and Customer concerning the Service. These Terms supersede all prior and contemporaneous oral or written terms, conditions, representations, warranties, and agreements regarding the Service.

13.2  Independent Contractors.  Modus and Customer are independent contractors for all purposes in performing these Terms and the Orders. These Terms will are not intended to create an agency, partnership, franchise, or joint venture relationship between or among the parties.

13.3  Notices.  All notices permitted or required under these Terms or an Order shall be deemed given on the date of personal delivery or five (5) days after mailing by first-class United States mail, with postage fully prepaid. Personal delivery via a nationally-recognized courier will be valid upon delivery provided the courier obtains a signed receipt. Notice by email is valid upon acknowledgement of receipt by the intended recipient by email or another means providing a written record. Notices shall be provided to Modus using the contact information provided on the Legal Landing Page. 

13.4  Governing Law and Jurisdiction.  These Terms and all Customer Orders are governed by the internal laws of the State of Minnesota and applicable U.S. federal law without giving effect to the conflict of law rules of any jurisdiction. Any legal suit, action, or proceeding arising out of or related to these Terms and the applicable Order will be instituted exclusively in the U.S. federal courts or Minnesota state courts located in the City of Minneapolis, County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

13.5  Assignment.  Neither Modus nor Customer may assign or otherwise transfer their rights and obligations under these Terms without the other party’s prior written consent, except that Modus may assign these Terms as part of the sale of substantially all of its assets to another entity, or a merger, business sale, or reorganization which results in a change in management control. Modus may withhold its consent to an assignment by a Customer to an actual or potential competitor of Modus, in its sole discretion. Any prospective assignee must be able to fulfill all of the assignor’s obligations under these Terms. In no case will a party unreasonably withhold, condition, or delay consent to an assignment.

13.6  Binding Effect.  These Terms shall be binding upon, and inure to the benefit of, the parties and their permitted respective successors and assigns.

13.7   Waiver.  Any express waiver or failure to exercise promptly any right under these Terms will not create a continuing waiver or any expectation of non-enforcement.

13.8  Severability.  If any provision of these Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and will be interpreted, to the extent possible, to achieve the purposes as originally expressed in the invalid, illegal or unenforceable provision.

13.9  Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under these Terms where such delay or failure arises by reason of any Act of God, or any government or any governmental body, acts of the common enemy, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party.

13.10  Survival.  The terms and conditions of these Terms which by their nature are intended to survive its termination, shall survive such termination.

13.11  Counterparts: Electronic Signatures.  The use of an electronic signature, checkbox, or other form of electronic affirmation to signify Customer’s acceptance of an Order and these Terms shall have the same effect and create the same binding legal obligation as a signature made on a physical document delivered in person.

14.  Contact.  Questions or comments or concerns about these Master Terms of Service and related matters may be sent to Modus using the contact information provided on the Modus Landing Page.

Copyright© 2021.  Modus Engagement, Inc. All rights reserved.

Last revised: April 27, 2021.