Last updated in February 2020
1 Contract and Parties
1.1 The provisions of the Work Order and any appendices other than these Business Terms issued by Time is Ltd. s.r.o., Identification No.: 054 46 872, with seat at: Kafkova 346/14, Dejvice 160 00, Praha 6, the Czech Republic, registered in the Commercial Register kept by the Municipal Court in Prague, file No.: C 263767 (“TIL”) and addressed to the entity identified in the Agreement (“Client”), and these Business Terms (together the “Contract”) constitute the whole agreement between the Client and TIL in relation to the Services to be provided by TIL (including the Deliverable as defined below or in the Contract or its Appendix 1) and TIL’s responsibilities for them (the “Services”). The applicability of these Business Terms can only be excluded or restricted by law, regulations or explicit written mutual agreement between TIL and the Client.
1.2 For the purposes of the Contract, the term “Client Group” shall mean any entity that establishes a concern with the Client as defined in § 79 of Act No. 90/2012 Coll., on Commercial Corporations, as later amended and any other entity or individual, that is directly or indirectly controlled, controls or being under common controlled of a company that is an owner of the Client.
2 Manner of the Service Provision
2.1 TIL shall perform the Services based on the information given by the Client without any further verification by TIL.
2.2 The Client confirms that it has the right to share any information or data
2.3 The Client will immediately inform TIL about any issues on the Client’s side that may have any impact on the Services.
3 Fees and Payment of Invoices
3.1 TIL shall be entitled to fees as agreed upon in the Agreement (the “Fees”) and this compensation shall not depend on the result of the Services.
3.2 TIL is entitled to issue the invoices for the Services in accordance with the Contract.
3.4 For VAT purposes, the Services are supplied continuously unless the parties agree otherwise. Each supply shall be regarded as having been rendered on the date the related invoice is issued, unless applicable mandatory laws stipulate otherwise.
3.5 Parties shall mutually agree on any expenses to be reimbursed by the Client in addition to the Fees. Such expenses will be specified in the Work Order.
3.6 TIL’s invoices are due and payable by the Client within 30 days of the invoice date. The due date will be specified on each invoice. TIL reserves the right to charge interest at 1?% per month. In the event that TIL incurs any collection or legal costs with regard to overdue fees these costs shall be charged to the Client in an additional invoice. Without limiting its other rights or remedies, TIL shall have the right to suspend or terminate the Services entirely or in part if payment is not received by the due date. In case there is any dispute over the invoiced amount, the undisputed amount shall be paid by the Client. The Client shall be responsible for all taxes, such as VAT, sales and use tax, gross receipts tax, withholding tax, and any similar tax, imposed on or in connection with the Services, other than TIL’s income and property taxes.
4 Responsibilities of the Client and of TIL
4.1 Responsibilities of the Client
4.1.1 The Client is responsible for determining the scope of Services. The Client shall cooperate with TIL in connection with the performance of the Services, including, without limitation, providing timely access to data, systems, information, premises and personnel of the Client Group or other persons whose cooperation is necessary.
4.1.2 Where the Client wishes TIL to access a web site or an electronic data sharing forum in relation to the Services to be provided, it will discuss and agree with TIL the specific areas and/or information which the Client requires TIL to read.
4.1.3 The Client shall be responsible for the performance of its personnel and agents, for the timeliness, accuracy and completeness of all data and information (including all personal information) provided to TIL by or on behalf of the Client Group.
4.1.4 The performance of the Services is dependent upon the timely performance of the Client’s responsibilities under the Contract and timely decisions and approvals of the Client in connection with the Services.
4.1.5 Should the Client fail to provide TIL with accurate and complete information, assistance or materials, TIL shall not be liable for any delay or fault in the Services. TIL further reserves right to extend all deadlines for a period corresponding to each and every delay caused by the Client and TIL has the right to get any costs (incl. TIL Personnel related costs) occurred in relation with such delay fully compensated by the Client.
4.2 Responsibilities of TIL
4.2.1 TIL will only be responsible for the Services being performed in accordance with this Contract. The only duty on TIL side is to arrange for fixing such defects or delays of the Services or the Deliverable or parts thereof that are notified by the Client in writing within 5 days after the Service performance or after the delay commences.
4.2.2 In formulating any Deliverable as part of the Services, TIL may discuss ideas with the Client orally or show the Client drafts of such Deliverable. TIL shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of any drafts or oral Deliverable.
4.2.3 TIL shall have no responsibility to update any Deliverable due to events that occur after their issuance/completion.
5 Ownership of TIL Property
5.1 Subject to when a separate license agreement shall apply, to the extent that TIL uses or develops any of its intangible property in connection with this Contract, such property, including work versions, shall remain the property of TIL. The Client obtains (upon the full payment of the Services) the ownership of the tangible property created as a result of the Services for the Client, based on which the Deliverables are expressed.
5.2 Subject to payment of all of TIL’s Fees due in connection with the Services and this Contract, the Client shall obtain a non-exclusive, non-transferable, fully paid license to use the Deliverable in a manner and for the purpose set out in the Contract or in the Deliverable and in compliance with the other provisions of the Contract.
5.3 Any royalty (license fee) associated with the Deliverable (if any) is included in the Fees agreed herein.
5.4 TIL shall have ownership (including, without limitation, copyright and other intellectual property ownership) of the Deliverable (except for the tangible basis thereof, which belongs to the Client upon the payment of the Services) and all rights to use and disclose its ideas, concepts, know-how, methods, techniques, processes and skills, and adaptations thereof in conducting its business. Any intellectual property and other proprietary rights in materials and data provided by the Client for performing the Services shall remain the property of the Client.
5.5 Notwithstanding anything to the contrary in the Contract, the Client acknowledges that TIL and the TIL Personnel, in connection with performing the Services, may develop or acquire general experience, skills, knowledge, and ideas that are retained in the memory of the TIL Personnel. The Client agrees that TIL may use and disclose such general experience, skills, knowledge and ideas without restriction.
5.6 The Client shall also be entitled to have access to and use of those TIL Technologies supplied solely for the purposes of receiving the Services and for no other purposes in accordance with and subject to agreement by the Client with the provisions of the licenses applicable to such TIL Technologies as notified by TIL. As between the Client and TIL, TIL will own and retain ownership of all intellectual property rights and other proprietary rights of any kind in the TIL Technologies that are used or developed in connection with this Contract.
5.7 “TIL Technologies” means all know-how and software, system interfaces, templates, methodologies, ideas, concepts, techniques, tools, processes, and technologies, including web-based technologies and algorithms owned by, licensed to or developed by any TIL entity and used by TIL and the TIL Personnel in performing the Services or other obligations.
5.8 TIL does not agree to any terms that may be construed as precluding or limiting in any way its right to develop for itself, or for others, materials that are competitive with or similar to those produced as a result of the Services, irrespective of their similarity to the Deliverable, subject to the confidentiality obligations set forth in Article 16 below.
6 Damage Liability
6.1 TIL shall not be liable to the Client and/or the Client Group for any claims, liabilities, losses, damages, costs or expenses arising under or in connection with the Contract regardless of the legal basis (“Claims”) for the greater of (i) an aggregate amount of the Fees paid under the Contract by the Client to TIL for that part of the Services giving rise to the Claim or (ii) EUR 100,000, except to the extent it is finally judicially determined to have resulted primarily from the intentional misconduct or gross negligence of TIL. For the avoidance of doubt, should the Services be provided free of charge as a pilot or test version for the Client, then TIL disclaims any liability whatsoever and the Client accepts the Service as is without any warranty or liability on TIL’s side.
6.2 To the extend allowed by law, TIL and the TIL Personnel shall not be liable for any loss of use, contracts, data, goodwill, revenues or profits (whether or not deemed to constitute direct Claims) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense arising under or in connection with the Contract.
6.3 The aggregate liability of TIL for any Claim shall not exceed an amount which is proportional to the relative fault that TIL’s conduct bears to all other conduct giving rise to such Claim.
6.4 TIL liability for the Services exists only towards the Client and the Beneficiaries that are listed in the Contract or in the Deliverable as the persons entitled to rely on the Services (the “Beneficiaries”), and not to any other parties.
6.5 Art. 6.1 above applies in aggregate to each and
all Claims and/or losses which from time to time arise under or in connection
with the Contract and the Services.
6.6 TIL shall have no liability in respect of any products and services of third parties.
7.1 This is a services agreement, which regulates the Services being performed by TIL. TIL warrants that within the extent of the acceptance of its liability as in particular specified in art. 4.3.1 and 6.1 of the Contract, TIL shall perform the Services in good faith and with due professional care and skill. To the fullest extent permitted by law, TIL disclaims all warranties of merchantability and fitness for a particular purpose.
7.2 The Client may claim the removal of any defects provided that TIL is liable for such defects and that they can be removed and provided that the Client has notified TIL of the defects in writing within five days or within the warranty period specified by mandatory laws, whereas the above period starts at the moment of the acceptance of the Deliverable and/or other Service deliverables. If the defect cannot be rectified, or an attempt to rectify the defect is unsuccessful, the Client may rescind the Contract or demand a reduction of the Fees.
7.3 TIL will use reasonable efforts to supply the Services in accordance with any timetable referred to in the Agreement or otherwise specified by the parties in writing. All dates given by TIL or specified by the Client for the Services are intended for planning and estimating purposes only and are not contractually binding.
8.1 The Contract may be terminated by either party at any time, with or without cause, by giving written notice to the other party not less than 30 days before the effective date of termination. Should the Contract be signed for a definite period of time and the Service type is of a repetitive nature, the term shall be automatically prolonged for the same period (repeatedly) until one of the parties terminates it in accordance with the first sentence above.
8.2 If any Party (i) has filed a request for a moratorium or its own bankruptcy, (ii) has been declared bankrupt or adjudicated insolvent by the competent authority, or (iii) against which insolvency claim is dismissed due to insufficient assets, or (iv) assets are subject to attachment of material substance, or (v) is being wound-up, the Contract may be terminated by the other Party with an immediate effect.
8.3 TIL may terminate this Contract, in whole or in part, with immediate effect upon written notice to the Client if TIL determines that (a) a governmental, regulatory, or professional entity, or other entity having the force of law has introduced a new, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render TIL’s performance of any part of the Contract illegal or otherwise unlawful or in conflict with professional rules, or (b) circumstances change (including, without limitation, changes in ownership of the Client or any of the Client Group entity such that TIL’s performance of any part of the Contract would be illegal or otherwise unlawful or in conflict with independence or professional rules.
8.4 Upon termination of the Contract for any reason, the Client will compensate TIL in accordance with the terms of the Contract for the Services performed and expenses or costs (including any specific costs, such as start-up costs) incurred through the effective date of termination.
9.1 Neither party may assign or otherwise transfer this Contract without the prior express written consent (including via e-mail) of the other.
10.1 The Client shall indemnify TIL from all third party Claims (as defined in Article 6 above), except to have resulted primarily from the intentional misconduct of TIL or any TIL Personnel as determined by the competent court.
11 Entire Agreement, Modification and Effectiveness
11.1 Should anything discussed prior to execution of the Contract contradict with the provisions agreed in the Contract, the Contract will prevail.
11.2 If TIL has already started work (e.g., by gathering information, project planning or giving initial advice) at the request of the Client then the Client agrees that this Contract is effective as of the start of such work, either by retroactive effect allowable by applicable laws or by acknowledging that this entire Contract constitutes the written confirmation of the oral agreement concluded between the parties at the start of such work.
12 Other Clients
12.1 Nothing in this Contract will prevent or restrict TIL or the TIL Personnel from providing services to other clients (including services which are the same or similar to the Services) or using or sharing for any purpose any knowledge, experience or skills used in, gained or arising from performing the Services (subject to the obligations of confidentiality set out in art. 16) even if those other clients’ interests are in competition with the Client Group or with the Client.
13 Counterparts and language
13.1 This Contract may be signed in any number of counterparts (whether such counterparts are original or in the form of a .pdf attachment to an email). Each signed counterpart (incl. the signature via Docusign) shall be deemed to be an original thereof, but all the counterparts shall together constitute one and the same instrument. Where there are versions of the Contract in the English language and another language, in the event of any discrepancies between versions, the English language version shall prevail.
14 Dispute Resolution
14.1 The parties agree to attempt in good faith to resolve any dispute or claim amicably. Unless the amicable settlement is reached within 30 days, the dispute shall be resolved by a competent court having jurisdiction in accordance with the TIL registered place of business.
15 Governing Law and Submission to Jurisdiction
15.1 This Contract, and all matters relating to it (including non-contractual obligations) shall be governed by, and construed in accordance with, the laws of the Czech Republic, in particular the Czech Civil Code.
16.1 To the extent that, in connection with this Contract, either TIL, TIL Personnel or the Client or any Beneficiary, if applicable (the “receiving party”), comes into possession of any information related to the Services, trade secrets or other proprietary information, which is either designated by the disclosing party as confidential or is by its nature clearly confidential (“Confidential Information”), the receiving party shall not disclose such Confidential Information to any third party without the disclosing party’s consent except to the Client’s or TIL’s legal advisors solely for the purpose of obtaining legal advice, or as may be required by law, regulation, judicial or administrative process.
16.2 All Services are only intended for the benefit of the members of the Client Group identified in the Contract or Deliverable or of the Beneficiaries as being entitled to rely on the Deliverable. The mere receipt of any Deliverable by any other persons is not intended to create any duty of care, professional relationship or any present or future liability of any kind between those persons and TIL.
17 Electronic Communications
17.1 Except as instructed otherwise in writing and except for the personal data that can only be shared via safe and mutually agreed means TIL platforms, TIL and the TIL Personnel and the Client Group are authorized to use email and voice/phone communication for both sensitive and non-sensitive documents and other communications concerning this Contract, as well as other means of communication used or accepted by the other.
17.2 TIL Personnel may need access to TIL own systems and data. Client agrees that it will allow (at its discretion) TIL Personnel to use TIL Local Area Network at Client’s premises and/or provide TIL Personnel with an Internet connection to allow TIL hardware (typically TIL’s laptop computers used by the TIL Personnel) to connect to TIL network via Client’s or Client Group’s internet communications facilities. The Client further acknowledges that TIL may require access to Client or Client Group electronic data and also to Client and Client Group internet communications facilities for the purpose of the Contract. TIL will only access Client’s and Client Group’s internal networks, applications, data or other systems under such conditions as the Client at its sole discretion consider necessary to protect the security and integrity of Client’s data and systems provided that they are notified in advance and acceptable for TIL.
17.3 It is recognized that the internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all), and that other methods of communication may be appropriate. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by any TIL Personnel to networks, applications, electronic data or other systems of the Client Group.
18 Marketing and Use of Name
18.1 Neither TIL nor Client Group shall use the other’s trademarks, service marks, logos, and/or branding in external publicity material without such other party’s prior written (including via e-mail) consent. However, TIL may refer to the names of the Client Group and the performance of the Services and they may use Client’s logo in (i) marketing, publicity materials and proposals as an indication of its experience, and (ii) internal data systems.
19 Data Protection
19.1 TIL may collect, use, transfer, store or otherwise process (collectively, “Process”) information provided by the Client that can be linked to specific individuals (“Personal Data”) as defined under the applicable law. TIL will Process the Personal Data in accordance with applicable laws and professional regulations.
19.2. The Client warrants that the Client has the authority to provide the Personal Data to TIL in connection with the performance of the Services (as defined in the Contract) and that the Personal Data has been collected and Processed in accordance with applicable law. The Client is obliged to provide TIL with all the necessary instructions for Processing, all in accordance with the Data Processing Agreement that is attached as Appendix 3 hereto, and with accurate and up-to-date Personal Data and TIL shall take the technical, organizational and personal measures to protect the Personal Data as instructed.
19.3 Information on personal data processing:
The parties acknowledge that the Personal Data provided by the Client or its staff members and representatives will be processed by TIL as a Controller, for the purpose of, or in connection with: (i) compliance with the applicable legal, regulatory or professional requirements; (ii) addressing requests and communications from competent authorities; (iii) Contract administration, financial accounting, internal compliance and risk analysis, and client relationship purposes; (iv) utilization of systems and applications (hosted or internal) for information technology and information system services (the “Purposes”). The Personal Data may include data regarding the Client’s representatives, personnel, project team members, suppliers and contractors, as well as the Personal Data included in the information obtained by TIL in relation to the Contract.
For the Purposes indicated above, the Personal Data may be disclosed/transferred to and processed by the recipients of Personal Data (including the Personal Data controllers and Personal Data processors) as indicated in the applicable TIL Privacy Notice. The transfers of Personal Data may include transfers outside of the European Economic Area (EEA) but only provided that the legal obligations as stipulated by the data protection legislation for such transfers are fulfilled.
The above is a summary of the applicable TIL Information on Processing of Personal Data (the “Privacy Notice”) and is not a complete reflection of the Privacy Notice, which is available at http://m.cengmenliexia.cn/privacy-notice-for-clients/. To the extent that it does not involve a disproportionate effort, the Client shall ensure that the Privacy Notice is brought to the attention of data subjects (its relevant staff members, representatives, contractors and clients).
Data Retention: The engagement documentation, including the Personal Data shall be retained for a period of 10 years following the expiration of the contractual relationship or as required by the relevant regulations or any other applicable laws and regulations.
20 Work Orders
20.1 The Services, or part thereof, shall be performed on the basis of an instruction containing the description of the requested Services delivered by the Client to TIL (hereinafter “Work Order”). The Work Order may be made in writing, through e-mail or verbally.
20.2 The Work Order is accepted and confirmed by the earlier of the following events: (i) by TIL delivering the confirmation of the Work Order to the Client or (ii) by TIL providing the Services requested in the Work Order. TIL may decline to accept the Work Order. The declination of the Work Order may be made in writing, through fax, e-mail or verbally. TIL is, however, not allowed to do so without a reason and is obliged to state the reason in writing, through fax, e-mail or verbally to the Client.
20.3 The Client can only cancel the Work Order in writing, through e-mail. The Client shall compensate TIL for the Services performed and expenses incurred through the effective date of cancellation of the Work Order.
21 Closing Provisions
21.1 Lack of waiver or partial waiver of any right or delay of any party with enforcement of its right shall be interpreted as a complete waiver of such right
21.2 No party feels as a weaker party within the meaning of the Civil Code towards another party.
21.3 The parties hereby claim and confirm that while interpreting legal relationships established by this Contract, no business custom or established practice to be considered.
21.4 Each party waives any potential rights and entitlements based on the behaviour of the other parties before the conclusion of this Contract. Each party declares that during negotiations about this Contract it received all of factual and legal information, so that the party could assess the possibility to conclude a valid agreement and that party knew the interests of the other party to sign the Contract.
21.5 None of the provisions of this Contract shall be construed so that it precludes or limits the obligation to compensate for harm to a human being’s natural rights, or caused deliberately or through gross negligence, or that a party waives any right to such compensation.
21.6 These Business Terms are valid and effective as of 1 September 2019. For the avoidance of doubt these Business Terms become effective and applicable to the Client as of the effective date of the Contract. This version supersedes any previously existing version notwithstanding any other terms or conditions contained in any proposals or similar documents. TIL reserves the right to update the Business Terms from time to time and/or to supplement them with additional terms or conditions specific to individual advisory Services. Any Work Order approved or signed by the Client to TIL following the prior and timely delivery of the updated Business Terms shall be considered as the confirmation of and the consent with the changes of the Business Terms by the Client.