Last updated 27. 5. 2019
1 Contract and Parties
1.1 The provisions of the Agreement and/or Work Order and any appendices other than these Business Terms (“Engagement Letter”) issued by Time is Ltd. s.r.o., Identification No.: 054 46 872, with seat
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
2.1 TIL shall perform the Services based on the information given by the Client. The TIL is not obliged to verify truthfulness, completeness
2.2 The Client shall ensure that any information or data of the Client will be shared with TIL without any restrictions and/or that such information or data are always given in the extent the Client is entitled to do so by third parties.
2.4 The TIL Personnel will
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
3.2 TIL is entitled to issue the invoices for the Services in accordance with the Contract.
3.3 In order to compensate any fee payable, TIL is entitled to offset any of its receivables from the Client against any receivables the Client may have from TIL.
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
3.5 The Fees for the provision of the Services do not include the expenses incurred by TIL in connection with the provision of the Services. Reasonable expenses incurred by TIL, including travel and subsistence, expenses incurred by the provision of information required by law, by court judgement/order or by requirement of regulatory authorities or expenses arising from the making of any document for the disclosure to third parties on Client’s request and any other incidents leading to expenses after the Services being provided, and goods and services purchased in connection with the provision of the Services will be charged in addition to the Fees.
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 1½% per month. In the event that TIL incurs any collection or legal costs with regard to overdue
3.7 Any est
4 Conditions Applicable to the Client Employees and TIL Personnel
4.1 Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor,
4.2 The parties agreed that the provision of the Services does not require the permanent presence of the TIL Personnel and TIL reserves the right to use the TIL Personnel elsewhere.
4.3 TIL shall be entitled to replace any TIL Personnel at its discretion.
4.4 The Client is not entitled to initiate any activities, including any legal acts on behalf of TIL in relation to the TIL Personnel. The TIL Personnel shall remain TIL staff during the performance of the Services with all consequences related thereto and this Contract does not create any
5 Responsibilities of the Client and of TIL
5.1 Responsibilities of the Client
5.1.1 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.
5.1.2 The Client will be responsible for the management of such personnel and their performance, including timelines and quality of their input and work. 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.
5.1.3 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 financial information and statements) provided to TIL by or on behalf of the Client Group.
5.1.4 TIL may use and rely on information and data furnished by the Client or by others identified by the Client without verification. 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.
5.1.5 Should the Client fail to provide TIL with accurate and complete information, assistance or materials as specified in this article above, and/or should the Client fail to allow the TIL Personnel access to its personnel according to the terms and conditions herein, 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.
5.1.6 Should TIL suffer any other costs as a result of the aforesaid reasons associated with the non-performance of Client’s obligations, TIL shall have right to have the costs fully compensated by the Client, without prejudice to other rights agreed herein, including but not limited to the right to damages or the right to the contractual penalty, if agreed.
5.2 Responsibilities of TIL
5.2.1 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.
5.2.2 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. To the extent that the content of drafts or oral Deliverable are expected to be finalized and confirmed to the Client in writing (including via e-mail), such confirmed Deliverable shall supersede any previous drafts or oral 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.
5.2.3 TIL shall have no responsibility to monitor events occurring after the date of the Services nor to update any Deliverable unless the parties have agreed otherwise in writing explicitly.
6 Ownership of TIL Property
6.1 Subject to when a separate license agreement shall apply, to the extent that TIL uses or develops any of its property (whether tangible or intangible) in connection with this Contract, such property, including work versions, shall remain the property of TIL.
6.2 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.
6.3 Any royalty (license fee) associated with the Deliverable (if any) is included in the Fees agreed herein.
6.4 TIL shall have ownership (including, without limitation, copyright and other intellectual property ownership) of the Deliverable 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.
6.5 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.
6.6 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.
6.7 “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.
6.8 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 21 below.
7 Damage Liability
7.1 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 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 except to the extent it is finally judicially determined to have resulted primarily from the intentional misconduct or gross negligence of TIL.
7.2 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.
7.3 In circumstances where all or any portion of the provisions of this Article 7 are finally judicially determined to be unenforceable, the aggregate liability of TIL for any Claim shall not exceed an amount which is proportional to the relative fault that its conduct bears to all other conduct giving rise to such Claim.
7.4 TIL liability for the Services in the extent agreed in art. 7.1 exists only vis a vis 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 members of the Client Group or third parties.
7.5 Art. 7.1 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, whether such Claims and/or losses are made at the same or different times or by one or more members of the Client Group and/or other persons. The cap in art. 7.1 also applies to any and all Claims and/or losses against any other TIL entity, if it exists and the TIL Personnel, if and only to the extent that it is judicially determined that any of them have any liability under or in connection with the Contract or the Services.
7.6 TIL shall have no liability in respect of any products and services of third parties, or in respect of any losses or damages suffered by the Client, members of the Client Group and/or Beneficiaries other than these stipulated in this Article. In case that the Services or any part thereof are rendered to the Client by any third party in addition to TIL, TIL shall be liable only in connection with damage caused by breach of its obligations stipulated herein and in the extent according to this Article and according to TIL´s participation in the rendered Services.
8.1 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. 5.3.1 and 7.1 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.
8.2 The Client may claim the removal of any defects provided that TIL is liable for such defects and that they can be removed at reasonable cost 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.
8.3 The Services will be provided in an objective, impartial and professional manner uninfluenced by any particular business interests of TIL or any of TIL personnel without any subsequent award of a third party.
8.4 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.
9.1 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.
9.2 Any notice of termination for cause shall not be effective if the breaching party cures the breach within the notice period where the breach is capable of remedy.
9.3 Unless prohibited by governing laws, TIL or the Client may terminate the Contract immediately by giving written notice in the event the other 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 due to insolvency or over indebtedness, 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.
9.4 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.
9.5 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.
10 Force Majeure
10.1 Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), fire or other casualty, act of God, epidemic, riots, strike or labor dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority.
10.2 If either party is prevented from meeting its obligations due to circumstances of force majeure, it shall notify the other party accordingly and the other party shall, if possible, grant a reasonable extension for the performance of the Engagement Letter. If the circumstances of force majeure last for more than 3 months, either party may terminate the Contract in accordance with art. 9 above.
11 Limitation on Actions
11.1 No action, regardless of form, relating to the Contract or the Services, may be brought by either party more than two years after the cause of action has accrued under applicable law, unless a mandatory period applies which by the governing law of the Contract cannot be limited.
12 Survival and Interpretation
12.1 Any provisions of the Contract which either expressly or by their nature extend beyond the expiration or termination of this Contract shall survive such expiration or termination, including without limitation provisions governing Contract term and termination, ownership of TIL property, damage liability, warranties, limitation on actions, confidentiality, indemnification, governing laws and dispute resolution .
12.2 If any provision of this Contract is found by a court of competent jurisdiction or other competent authorities to be unenforceable in whole or in part, such provision or the relevant part shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein. All provisions hereof shall apply to the fullest extent of the law, whether in contract, statute, tort (including without limitation negligence), or otherwise, notwithstanding the failure of the essential purpose of any remedy.
13.1 Neither party may assign or otherwise transfer this Contract without the prior express written consent (including via e-mail) of the other.
14.1 The Client shall indemnify and hold harmless TIL and the TIL Personnel from all third party Claims (as defined in Article 7 above), except to the extent finally judicially determined to have resulted primarily from the intentional misconduct of TIL or any TIL Personnel.
15 Entire Agreement, Modification and Effectiveness
15.1 Nothing discussed prior to execution of the Contract induced, nor forms part of, the Contract except to the extent repeated in this Contract. This Contract supersedes any previous agreement, understanding or communication, written (including via e-mail) or oral, relating to its subject matter.
15.2 Unless expressly allowed hereby, no variation to the Contract shall be effective unless it is documented in writing (otherwise being null and void) and signed by authorized representatives of both parties, provided, however, that the scope of the Services may be changed by agreement of the parties in writing, including by e-mail or facsimile.
15.3 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 retrospective 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.
16 Other Clients
16.1 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. 21) even if those other clients’ interests are in competition with the Client Group or with the Client.
17 Counterparts and language
17.1 This Contract may be signed in any number of counterparts (whether such counterparts are original or facsimile or in the form of a .pdf attachment to an email). Each signed counterpart 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.
18 Dispute Resolution
18.1 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.
19 Governing Law and Submission to Jurisdiction
19.1 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.
20.1 If any third party wishes to rely on the Deliverable (and/or drafts thereof) and to become the Beneficiary as defined herein, such third party shall first execute an agreement with TIL in a form acceptable to TIL under which the third party accepts the terms of this Contract (subject to any changes agreed by TIL with the third party), TIL will treat such party as a Beneficiary in accordance with this Contract and assume a duty of care to it in relation to the Deliverable (and/or drafts thereof). TIL will have no responsibility to any other party that does not execute the above agreement with TIL.
21.1 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.
21.2 The Client and/or the Beneficiary shall use the Deliverable solely for the purposes specified in the Contract or Deliverable and, without limitation, shall not, without the prior written consent (including via e-mail) of TIL, use any Deliverable in connection with business decisions of any third party or for advertisement purposes. All Services are only intended for the benefit of the members of the Client Group identified in the
22 Electronic Communications
22.1 Except as instructed otherwise in writing, TIL and the TIL Personnel and the Client Group are authorized to use addressed faxes, email and voicemail 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.
22.2 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 analogue dial-up connections or 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 in order for TIL Personnel to operate effectively and efficiently from Client or Client Group premises they 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 through the terminal hardware or software the Client makes available to TIL Personnel for that purpose. Access to Client and Client Group systems by TIL Personnel will be subject to 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.
22.3 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. Electronic communications are also prone to contamination by viruses. 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.
23 Destruction of Working Papers
23.1 TIL may retain copies of documents and files provided by the Client Group in connection with the Services for purposes of compliance with applicable laws, professional standards and internal retention policies.
24 Marketing and Use of Name
24.1 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.
25 Data Protection
25.1 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.
25.2 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.
26 Work Orders
26.1 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 fax, e-mail or verbally.
26.2 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.
26.3 The Client can only cancel the Work Order in writing, through fax or e-mail. The Client shall compensate TIL for the Services performed and expenses incurred through the effective date of cancellation of the Work Order.
27.1 Neither Party shall Employ or otherwise engage any Employee of the other Party, directly or indirectly through any entity where it holds a majority interest or where it controls decision making, without the prior written consent of the other party, except where an Employee responds directly to a general recruitment campaign, for the period of this Contract and for one year following its termination.
27.2 The term “Employee of the other Party” shall mean any person that either as an advisor, consultant or an employee of either party has been anyhow involved in the provision of Services pursuant to this Contract at any time.
27.2 The term “Employ” of an Employee of the other Party shall mean the entering into an employment contract or a contract of a similar nature or entering into a contract for the provision of services of the Employee of the other Party with the said Employee of the other Party or any other individual or entity owned or controlled by the said Employee of the other Party.
27.3 For every breach of this obligation, the party in breach of this Contract under this article shall pay the other party a contractual penalty in the amount of CZK 500,000 (five hundred thousand Czech Crowns) within five (5) days of being reminded to pay the contractual penalty.
27.4 Should any of the parties consider Employ any Employee of the other Party, then the parties will negotiate in good faith how to solve this situation.
28 Closing Provisions
28.1 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
28.2 No party feels
28.3 The parties hereby claim and confirm that while interpreting legal relationships established by this Contract, no business custom or established practice to be considered.
28.4 Each party waives any potential rights and entitlements based on the
28.5 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.
28.6 These Business Terms are valid and effective as of 1 January 2019. For the avoidance of doubt these Business Terms become effective and applicable to the Client as of the effective date of the Engagement Letter. 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.