General terms and conditions of service

These General Terms and Conditions of Service apply to the relations of Parties (as this term is defined in clause 1.1.10 below) which Parties have incorporated them by reference into the Contract (as this term is defined in clause 1.1.5 below).

1. Definitions

1.1. In these General Terms and Conditions of Service, the words and expressions set out below shall have the following meanings:

1.1.1. “Client” means an individual, a legal entity, an unincorporated association, a public body, or any other legal subject which is recognized as such in their respective jurisdiction that is a party to the Contract.

1.1.2. “Client Materials” means any records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, fonts, and all other materials in whatever form, including but not limited to hard copy and electronic form, which the Client provides, or makes available, to the Consultant, whether upon its own initiative or upon the Consultant’s request.

1.1.3. “Consultancy Fee” means the Consultant’s remuneration for the provision of the Services as defined in Section 4 of the Terms.

1.1.4. “Consultant’” means Module Agency DOO, a legal entity lawfully incorporated and existing pursuant the laws of Montenegro, address: Stari put 6/1, Tivat 85320, Montenegro, PIB: 03489051.

1.1.5. “Contract” means a Legally Binding agreement to which the Client and the Consultant are parties and which references to, and incorporates (by reference or otherwise), the Terms as an integral part thereof.

1.1.6. “Data Protection Legislation” means the any data protection legislation from time to time in force in Montenegro or any successor legislation and any other legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

1.1.7. “Force Majeure” means an act, omission, circumstance or event:

(a) which is beyond the control of a Party;

(b) which such Party could not reasonably have provided before entering into the Terms;

(d) that causes a delay in performance hereunder or affects any other terms of the Terms;

(e) which prevents a Party from performing its obligation.

Provided that the conditions (a) to (e) are met, Force Majeure may include (but is not limited to) fire (except to the extent where such fire is caused or contributed by the acts of the Client or the Consultant), any pandemic or epidemic, explosion, any act of God, act of war (whether declared or not), armed conflict, invasion, belligerent action, revolution, insurrections, rebellion, riots, mob violence, civil commotion, uprisings, terrorism, sabotage, piracy, act of a public enemy, embargo, act of government in its sovereign capacity, actions of a government, lockouts, boycotts, strike or other industrial action which is industry wide (whether at national or equivalent level), communication line or utility failures, power failures, damage or destruction by lightning, or other natural disasters, extraordinary weather conditions (but excludes negligent or intentionally harmful acts or omissions of the Client or the Consultant or any Client’s contractors).

1.1.8. “Intellectual Property Rights” shall mean patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

1.1.9. “Invention” means any invention, idea, discovery, development, improvement or innovation made by the Consultant in the provision of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium.

1.1.10. “Legally Binding” means a status which signifies that a particular agreement, document, etc is legally binding on a Party and enforceable against that Party; such status is achieved by any of the following methods which that Party uses to express its will to be legally bound by that agreement, document, etc:

(a) a printed document signed by a Party with a handwritten signature of that Party (in case of an individual) or a handwritten signature of that Party’s duly authorised representative (in all other cases, including a body corporate, public body, unincorporated association, when an individual cannot sign on their own behalf, etc);

(b) an electronic document signed a Party with its respective verifiable and valid electronic signatures;

(c) a printed document hand-signed by a Party or its representative and subsequently scanned and sent as an electronic attachment via e-mail to the other Party’s known e-mail address;

(d) an e-mail message (may contain non-signed attachments) originating from a Party’s known e-mail address to the other Party’s known e-mail address.

For the avoidance of doubt: where a document requires the consent of the both Parties, a counter-signing of the document received pursuant to item (c) above, or signing an identical document as received pursuant to item (c) above, and its delivery pursuant to item (c) above, or a response to an e-mail message received pursuant to item (d) above which response expresses an unconditional consent with the e-mail received (including consent with the attachments), will constitute a consent of the both Parties.

The details on the communication between the Parties are detailed in Section 12 of the Terms.

1.1.11. “Parties” means jointly the Client and the Consultant.

1.1.12. “Party” means either of the Parties.

1.1.13. “Services” means all of the Consultant’s obligations under the Contract.

1.1.14. “Services Period” means the period of the Services detailed in clause 2.1 of the Terms.

1.1.15. “Terms” means these General Terms and Conditions of Service. The Terms constitute an integral part of the Contract.

1.1.16. “Works” means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared by the Consultant in the provision of the Services.

1.2. Rules of interpretation:

1.2.1. Section, clause, schedule, and paragraph headings are inserted for convenience only and shall not affect the interpretation of the Terms.

1.2.2. References to sections and clauses are to the section and clauses of the Terms.

1.2.3. References to the Contract automatically include the Terms.

1.2.4. Words in the singular shall include the plural and vice versa. Words importing the masculine gender include the feminine and neuter and vice versa. References to entities, companies and Parties include individuals and incorporated and unincorporated bodies and associates. References to each Party include references to such Party’s successors, assignees, nominees, agents and designees.

1.2.5. Any phrase introduced by the Terms including ‘include’, ‘in particular’, ‘for example’, ‘by way of example’, ‘by way of illustration’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.2.6. Each clause and sub-clause of the Terms is deemed to be separate and independent of any other.

1.2.7. If any term is defined within a clause of the Terms, the defined term shall have the meaning provided to it under such clause for all purposes under the Terms notwithstanding that the term has not been defined under clause 1.1.

1.2.8. If any provision of the Terms contradicts any provision of the Contract, the relevant provision of the Contract shall have precedence and apply and the relevant provision of the Terms shall not apply.

2. Appointment

2.1. The Services Period shall commence and conclude on the dates defined in the Contract unless extended by the Parties upon their mutual Legally Binding consent or terminated by either Party in accordance with the provisions set out at clause 9 below.

2.2. The Consultant shall provide the Services remotely from its own premises in Montenegro.

2.3. The place of electronic delivery of the Services shall be at the seat of the Client in its country of incorporation or such other place as may be agreed upon in the Contract.

3. Services Description

3.1. The Consultant shall provide to the Client such Services which are described and more particularly set out in the Contract.

3.2. The Consultant will use its own IT hardware.

3.3. The Client will provide Consultant assistance required by the Consultant to render the Services (e.g., timely grant access to relevant materials, respond to questions and enquiries etc).

3.4. The Consultant is entitled to appoint or instruct any third party to carry out any part of the Services. In the event the Consultant uses sub-contractors, it shall assume responsibility for any act or omissions of the sub-contractors as if has had acted himself.

3.5. Any changes to the Services Period and (or) Services description must be agreed between the Parties and confirmed by entering into a Legally Binding addendum to the Contract.

4. Fees and Expenses

4.1. In consideration of the Services performance during the Services Period, the Client shall pay the Consultant a fee specified in the Contract. (the “Consultancy Fee”).

4.2. The Consultancy Fee is exclusive of:

4.2.1. expenses specified in the Contract or otherwise approved by the Client in advance in a Legally Binding manner and invoiced to the Client on at-cost basis (the “Expenses”),

4.2.2. VAT (if and where applicable), and

4.2.3. banking and similar charges which the Client may incur when paying the Consultancy Fee.

4.3. The Consultancy Fee is inclusive of all cost relating to the Consultant's premises, IT infrastructure and all applicable taxes, charges, levies, excise, duties, or charges of a similar nature which are imposed or charged by any competent fiscal authority.

4.4. The currency of payment is US Dollars unless otherwise provide.

4.5. The Consultancy Fee shall become payable as agreed upon in the Contract subject to the Consultant providing an invoice for the Consultancy Fee. All invoices shall include:

4.5.1. the Consultant’s business name, address, contact details,

4.5.2. Client’s name and address, representative name, contact details.

4.6. The Client shall pay all undisputed invoices within five (5) business days from the date of invoice receipt.

4.7. If the Services have not been paid, or have not been paid in full, within the period set out in clause 4.6 above, then:

4.7.1. the Consultant is entitled to suspend the provision of the Services without incurring any liability of any nature and origin (for the avoidance of doubt: for the purposes of the Terms term ‘liability’ in this clause includes without limitation any damages, indemnity payments, or anything else which may be due from the Consultant to the Client under the Terms, in law, in equity, or pursuant to any legal concept, theory, regulation or otherwise) to the Client until such time when the Services are paid in full, provided that the Consultant has provided the Client with the invoice which includes all information required as set out in clause 4.5, and

4.7.2. no title or any other right to the Services as well as no Intellectual Property Rights in any Invention or Work shall pass to the Client until such time when the Consultancy Fee (including any penalty for late payment) has been paid in full, and if for whatever reason any Intellectual Property Rights in any Invention or Work has already passed to the Client, then such Intellectual Property Rights in any Invention or Work shall automatically, and without executing any document, pass back to the Consultant until such time when the Client has settled all debts to the Consultant.

5. Consultant’s Obligations

5.1. The Consultant shall at all times during the Services Period:

5.1.1. faithfully and diligently perform those tasks and exercise such responsibilities consistent with them which are from time to time necessary in connection with the provision of the Services;

5.1.2. keep records of all acts and things done by it in relation to the provision of the Services and at the Client’s request shall make them available for inspection and (or) provide copies to the Client;

5.1.3. refrain from entering into any agreements, contracts or arrangements with any third party which present a direct and obvious conflict with the Client’s existing business which the Consultant has been expressly made aware of.

5.2. The Consultant warrants that:

5.2.1. it has all necessary powers, authority and consents to enter into and fully perform its obligations under the Contract and will maintain the same throughout the Services Period;

5.2.2. it shall not without the prior Legally Binding approval of the Client copy, distribute or issue information and (or) data relating to the Client (or any subsidiary or associated companies), or any material relating to the Services whether in eye or machine-readable form to any third party;

5.2.3. subject to clause 4.7 above, the Services, including any materials provided there under, is and shall remain the exclusive property of the Client;

5.2.4. it shall comply with all legal and statutory requirements in relation to the provision of the Services herein and hold all licences for the performance of the said Services provided for by the Contract in a legitimate and valid manner.

6. Intellectual Property Rights

6.1. For the purposes of this section 6, the following definitions shall apply:

6.2. Subject to clause 4.7 hereof, the Consultant acknowledges and agrees that the Client is the sole and exclusive owner of any and all rights, interests and title in and (or) to the Services herein. The Consultant shall not use or exploit, in and (or) for its own purpose, or licence any other party to use or exploit such rights, interests and title.

6.3. Subject to clause 4.7 hereof, the Consultant acknowledges and agrees that title to all Intellectual Property Rights in any Invention or Works shall belong exclusively and in their entirety to the Client and the Client shall be entitled to use such material as it sees fit. The Consultant hereby assigns to the Client all existing and future Intellectual Property Rights in the Works and the Inventions and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under the Terms, the Consultant holds legal title in these rights and inventions on trust for the Client.

6.4. The Client and the Consultant acknowledge and agree that the Client may provide to the Consultant various Client Materials and instruct the Consultant to incorporate such Client Materials into the Inventions and (or) Works. With respect to such Client Materials the Client:

6.4.1. represents and warrants that it has, or has lawfully acquired, all necessary Intellectual Property Rights to such Client Materials that permit the Client to provide these Client Materials to the Consultant for rendering the Services;

6.4.2. represents and warrants that under no circumstances the Consultant will be required to pay or provide other valuable consideration for the Client Materials either to the Client and (or) to any third party;

6.4.3. shall indemnify the Consultant and its employees against all actions, suits, proceedings, claims, demands, costs (including without limitation legal costs on an indemnity basis), and any compensation or disbursements, loss, interest or expenses arising, directly from a breach by the Client of its obligations pursuant to this clause 6.4;

7. Status

7.1. During the Services Period and in the performance of the Services and the obligations of the Consultant in the context of the Contract, the Consultant (and for the avoidance of doubt, its employees, servants, and agents) shall be an entirely independent contractor on a self-employed basis and shall be fully responsible for and in respect of any income tax, national insurance and social security arrangements (including without limitation) insurance against accidents, illness and disability and any contributions therefor and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services.

7.2. The Consultant shall not be the servant and (or) employee of the Client. Nothing in the Terms shall constitute or be deemed to constitute a partnership, relationship of agency or employer/employee, and (or) joint venture between the Client and the Consultant and the Consultant shall be fully responsible for in respect of any income tax, national insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law.

7.3. For the avoidance of doubt, the Services to be provided by the Consultant hereunder are not and shall not be deemed to be exclusive to the Client. The Consultant shall be free to render similar services to others and to engage in all such activities as the Consultant deems appropriate.

8. Confidentiality

8.1. The Consultant shall not during the Services Period (save in the proper exercise of its obligations and duties hereunder), nor at any time after the termination of the Contract utilise for its own purpose or divulge publish or reveal to any person any information whatsoever concerning the business organisation, finances, dealings, customers, transactions, plans, strategies, or affairs of the Client, its subsidiary or associated companies, and shall keep with complete secrecy all confidential information entrusted to it and shall not use or attempt to use any such information in any manner which may or may be likely to injure or directly cause loss to the Client.

8.2. The Consultant agrees that on the termination of the Contract, it shall on request deliver at cost (payable by the Client) up to the Client, all documents, papers and notes and property of any description belonging to the Client in its possession or under its control which relate in any way to the affairs of the Client and it will not retain any copies thereof.

9. Termination

9.1. Unless a relevant event is cause by the Force Majeure, the Contract may be terminated with immediate effect by a Party in the event of:

9.1.1. a material breach by a Party of the provisions of the Contract or failure by a Party in the opinion of management of the other Party to adequately perform its duties under the Contract or gross misconduct by a Party;

9.1.2. a Party commits any serious or repeated breach or non-observance of any of the material provisions of the Contract, or refuses or neglects to comply with any reasonable and lawful request of the other Party;

9.1.3. a Party becomes bankrupt or insolvent or enters into liquidation (other than a voluntary liquidation for the purposes of any bona fide and solvent scheme of reconstruction, amalgamation or similar reorganisation) or becomes subject to other similar proceedings;

9.1.4. a Party (i) enters into any arrangement or composition with its creditors or any of them; or (ii) has a receiver or administrator appointed over a portion or all of its property or assets; or (iii) any equivalent or analogous proceedings to those mentioned in this clause 9.1.4 are taken against that Party under the laws of the jurisdiction in which that Party is incorporated; or (iv) ceases to carry on the whole or any material part of its business.

9.2. In the event of the termination as set out in this clause 9.1, the Consultant shall be paid for the Services provided up until the date of the termination.

9.3. The rights of a Party under clause 9.1 are without prejudice to any other rights that it might have at law to terminate the Contract or to accept any breach of the Contract on the part of the the other Party as having brought the Contract to an end. Any delay by a Party in exercising its rights to terminate shall not constitute a waiver of these rights.

9.4. Termination of the Contract shall be without prejudice to the accrued rights of a Party prior the date of termination.

10. Data Protection

10.1. The Parties will comply with all applicable requirements of the Data Protection Legislation.

10.2. The Client grants to the Consultant the right to transfer any personal data to Montenegro.

10.3. The Consultant shall ensure that it has in place appropriate technical or organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.

11. Anti-bribery

11.1. The Parties agree that they shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption and warrants that each of them has procedures and structures in place to prevent persons associated with its undertaking conduct what might amount to a breach of anti-bribery laws.

12. Communication

12.1. Any communication (including without limitation defining and (or) setting day-to-day tasks and (or) KPIs for the Consultant) between the Parties under the Contract shall be either (upon a Party’s discretion):

12.1.1. by e-mail (as described in clause 12.4 below), or

12.1.2. via registered mail with tracked delivery and confirmation of receipt (as described in clause 12.5 below).

12.2. A Party may freely choose the method of communication at its unrestricted discretion, and the other Party may not require from it to use a particular method of communication.

12.3. For the avoidance of doubt the following methods of communication are specifically highlighted as being ineffective and having no legal force and effect for the purposes of the Terms:

12.3.1. messengers or chat rooms (including without limitation: WhatsApp, Telegram, Microsoft Teams, Viber, Skype, Zoom, and any similar);

12.3.2. oral communication by phone, via any messenger (as a recorded message or as a live conversation with or without video), or otherwise;

12.3.3. fax;

12.3.4. SMS;

12.3.5. MMS;

12.3.6. telegraph;

12.3.7. teletype (teleprinter).

12.4. The rules for communicating by e-mail (clause 12.1.1):

12.4.1. The Client’s e-mail address for communication under the Contract is any e-mail address or addresses defined in the Contract (the “Client’s E-mail”);

12.4.2. The Consultant’s e-mail address for communication under the Contract is any e-mail address located at the @module.agency server (the “Consultant’s E-mail”);

12.4.3. No e-mail communication under the Contract is valid unless it is sent from the Client’s E-mail to the Consultant’s E-mail, or from the Consultant’s E- mail to the Client’s E-mail;

12.4.4. It is strictly prohibited to use any e-mail addresses which are not the Client’s E-mail or the Consultant’s E-mail (including in the carbon copy (CC) and blind carbon copy (BCC) fields);

12.4.5. Any e-mail communication may contain attachments which (i) shall not exceed the size which are accepted by a regular mail server (usually less than 20 megabytes) and (ii) shall have a format which is readable by software available for Windows and MacOS.

12.5. The rules for communicating registered mail with tracked delivery and confirmation of receipt (clause 12.1.2):

12.5.1. The postal address of the Client is specified in the Contract, the postal address of the Consultant is specified in clause 1.1.4 of the Terms;

12.5.2. Registered mail with tracked delivery may be sent with any provider which ensures that the status of delivery is tracked and the confirmation of receipt is recorded;

12.5.3. If a Party rejects the mail by refusing to accept the delivery or refusing to sign, the mail is deemed to be delivered;

12.5.4. A Party shall promptly notify the other Party on the change of its postal address. Before such notification, any mail delivered to a previous postal address is deemed to be legally valid.

13. Miscellaneous

13.1. The obligations and undertakings by the Parties at Sections 1 (‘Definitions’), 4 (‘Fees and Expenses’), 12 (‘Communication’), 13 (‘Miscellaneous’), 14 (‘Governing Law and Jurisdiction’) hereof shall continue to apply and be effective notwithstanding the termination and (or) expiry of the Terms.

13.2. Any person who is not party to the Contract shall have no right to enforce any the Contract and nothing in the Contract shall operate to prevent the parties to the Contract from amending or rescinding the whole or any part of the Contract by Legally Binding agreement between themselves without reference to any third party.

13.3. Each of the Parties shall pay its own costs and expenses incurred by it in connection with negotiating, execution, performance, and termination of the Contract.

13.4. If any provision of the Contract is declared to be illegal or unenforceable, the other provisions will survive and be unaffected by such declaration. The Parties will use their best efforts to amend the invalid provision of the Contract to make it lawful and legally enforceable.

13.5. A Party (“Non-Defaulting Party”) is prohibited to set off any liability of the other Party (“Defaulting Party”) to the Non-Defaulting Party against any liability of the Non-Defaulting Party to the Defaulting Party, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.

14. Governing Law and Jurisdiction

14.1. The Terms shall at all times be governed by the laws of Montenegro and the Parties submit to the exclusive jurisdiction of the competent courts of the Montenegro.