1.1. In these terms and conditions:
(a) “Base Technologies” means the following things, to the extent provided by TimeZoneOne to the Client.
1. TimeZoneOne’s “Dottie,” which is the platform and associated works of authorship, inventions, trade secrets, and other information and materials that TimeZoneOne from time to time markets and/or makes available as such, and all intellectual property and other rights therein; and
2. TimeZoneOne’s Trade Secrets that TimeZoneOne makes available to Client under this Agreement;
(b) “Brief” means the final written document or documents prepared by TimeZoneOne which records
the parties’ agreement in relation to the services to be provided by TimeZoneOne to the Client;
(c) “Client” means the client referred to in the Brief as the Client;
(d) “Client Materials” means anything in which the Client has any exclusive right vis-à-vis TimeZoneOne and/or that the Client provides to TimeZoneOne into which, or with which, this Agreement requires TimeZoneOne to integrate, interface, connect, or logically associate the Provided Materials or the Base Technologies;
(e) “Creative Works” means creative ideas and concepts;
(f) “Project” means the work and services set out in the Brief;
(g) “Provided Materials” means Work Product and Base Technologies, each to the extent that this Agreement requires that TimeZoneOne provide the same to the Client;
(h) “Reusable Work Product” means Work Product that:
i. Is not unique to the Client and does not identify the Client;
ii. Does not contain Client Materials;
iii. Does not contain or result from the use of, and would not disclose to a reasonably skilled examiner of the Work Product, any of the Client’s confidential information; and
iv. Does not contain material portions of the design or “look and feel” of the Work Product as contemplated to be presented to the public.
(i) “TimeZoneOne” means TimeZoneOne Incorporated;
(j) “Work Product” means the tangible results of Services, including but not limited to object code, micro code, source code, data structures, documentation, and schematics, as well as any intellectual property rights associated therewith, but excluding Base Technologies combined by TimeZoneOne with the same.
2. Services provided by TimeZoneOne
2.1. TimeZoneOne will provide services for the Client according to project scope and schedule as recorded in writing between the parties or as attached by way of a memorandum to the schedule to this agreement. In the event of any discrepancy between the details included in the schedule to this agreement and any other written materials, the terms included in the most recent written agreement signed by both parties shall prevail.
2.2. TimeZoneOne shall complete the Project in a competent and professional manner and using a reasonable standard of care.
3.1. TimeZoneOne payment terms vary depending on the job/project: Website projects are billed 50% upon acceptance of proposal/contract, 25% once the build commences, final 25% at go-live; Projects are billed as equal payments across the length of the project; Retainer clients pay a monthly amount for 12 months or the length of the agreement.
3.2 TimeZoneOne shall invoice the Client on a regular basis. Unless otherwise agreed in writing, the Client shall pay each invoice by the 20th of the month after the date of invoice.
3.3. All costs incurred by third party suppliers will be invoiced by TimeZoneOne as soon as the cost occurs. The Client shall pay seven days after the date of the invoice.
3.4. TimeZoneOne shall charge a minimum amount for a project, set at 30 minutes for studio production/development, and 15 minutes for Project management.
3.5. Any urgent Project requests will be charged at 1.5 times the hourly rate.
3.6. TimeZoneOne may require the Client to prepay external costs to be incurred on behalf of the Client, e.g. media costs. TimeZoneOne will hold any such funds paid in advance solely on behalf of the Client for the payment of those costs and shall not apply those funds to any other purpose. TimeZoneOne shall provide a statement of funds held on behalf of the Client promptly on request.
4. Overdue payments
4.1. TimeZoneOne may charge interest on any overdue payments at the rate of 10% per annum from the date that the payment fell due until the date of actual payment.
4.2. The Client shall pay TimeZoneOne’s costs, including legal costs, incurred in recovering payment of any money due under these terms and conditions.
4.3. In the event that an invoice has not been paid by the due date, TimeZoneOne may elect to withhold materials relating to the Project and cease providing services to the Client until such time as the invoice is paid. TimeZoneOne shall not be responsible in any manner whatsoever for any consequences relating to the withholding of materials and/or cessation of services under this clause.
5. Additional costs
5.1. In the event the Client requires alterations or additions beyond the scope of the Project or Brief, TimeZoneOne shall advise the Client of the additional cost of those alterations or additions and shall not carry out any work related to the alterations or additions unless the Client has agreed to that additional cost.
6. Confidential information
6.1. TimeZoneOne may use the Client’s confidential or commercially sensitive information only for the purpose of completing the Project and/or other work for the Client and shall not use the information for any other purpose.
6.2. TimeZoneOne may use the Data collected from Dottie for product improvement, providing data analytics to our existing user base. This Data will be anonymised aggregated Data from Dotties users across different regions in New Zealand and other parts of the world..
6.3. Subject to clause 6.3 below, TimeZoneOne will not disclose the Client’s confidential or commercially sensitive information to a third party.
6.4. TimeZoneOne may disclose the Client’s confidential or commercially sensitive information to third parties if necessary to complete the Project, provided that it discloses information only to the extent necessary and requests the third party to keep the information confidential and not to use it for any other purpose.
7. Intellectual property
7.1. Subject to the remainder of this clause 7, the Client shall own all intellectual property rights created by or acquired by TimeZoneOne in Creative Works and finished material relating to the Project and TimeZoneOne assigns such rights to the Client. For example, the Work Product will be deemed “works made for hire” under the applicable copyright law.
7.2. Title to the intellectual property rights referred to in clause 7.1 above shall pass only when all moneys due in relation to the Project have been paid.
7.3. The Client shall not acquire any intellectual property rights which existed prior to the commencement of the Project. TimeZoneOne will own exclusively all Base Technologies developed, in whole or in part, or used in any manner, by or on behalf of TimeZoneOne pursuant to this Agreement together with all related intellectual property rights throughout the world except as otherwise stated in this Agreement. Client will retain no rights to any Base Technologies except the right to use Base Technologies to the extent they are specifically used and required by Work Product for which the Client has paid in full. TimeZoneOne grants the Client a perpetual and irrevocable license to use such rights for the Project and related purposes. [ TimeZoneOne is currently not using any defined Base Technologies for this project. If a Base Technology is provided in this project, the Client will be notified.]
7.4. The Client acquires no rights whatsoever to Creative Works and related material which TimeZoneOne has agreed to provide without payment. The Client may not use all or part of those Creative Works unless:
(a) It obtains TimeZoneOne’s express written permission to do so; or
(b) It engages TimeZoneOne to develop those Creative Works.
7.5 As between Client and TimeZoneOne, Client hereby grants to TimeZoneOne, without warranty as to title, interference by third parties, or non-infringement of third-party rights, a non-exclusive, royalty-free, fully-paid, irrevocable, perpetual, worldwide license to reproduce, distribute, prepare derivative works of, display, perform, digitally or otherwise transmit, make, use, sell, import, have made, have used, have sold, have imported, and sublicense all Reusable Work Product.
8.1. Unless otherwise agreed in writing:
(a) TimeZoneOne shall obtain all necessary consents, permissions and clearances of third party rights
relating to third party material that it sources for the Project.
(b) The Client shall obtain all necessary consents, permissions and clearances of third party rights
relating to material that it sources for the Project.
8.2. The Client shall be responsible for the cost of obtaining the consents, permissions and clearances referred to above.
9. Compliance with codes & law
9.1. TimeZoneOne will use reasonable endeavours to ensure that the use of material it develops or provides for the Project shall not infringe any applicable codes of conduct or law.
9.2. Notwithstanding clause 9.1 above, the Client shall be solely responsible to ensure that the Project, including the use of material developed or provided by TimeZoneOne, complies with all applicable codes of conduct and law.
10. Reference material
10.1. Unless the Client advises otherwise in writing, when demonstrating TimeZoneOne’s work TimeZoneOne may refer to the Client and to the general nature of the Project and may use examples of finished material from the Project.
11. Retention of materials
11.1. TimeZoneOne will keep its files relating to a Project for two years and may destroy the files at the end of that period, unless the Client requests that TimeZoneOne keep the file for a longer period and/or not destroy them.
11.2. TimeZoneOne reserves the right to charge the Client for the cost of retaining files, and accessing hard copy and electronic files, after the conclusion of the project.
12. No solicitation
12.1. The Client shall not during the term of the Project and for a period of twelve months after completion or termination employ or engage, or solicit for employment or engagement, whether directly or indirectly, any employee of TimeZoneOne.
13. Health and safety
13.1. TimeZoneOne shall comply with all reasonable health and safety directions of the Client while on the Client’s premises.
13.2. The Client shall comply with all reasonable health and safety directions of TimeZoneOne while on TimeZoneOne’s premises
14. Limitation of liability
14.1. TimeZoneOne shall have no liability to the Client for any loss, damage, costs, expenses or other claims arising from any material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, unlawful, in the wrong format, out of sequence, or arising from their late supply or non-supply, or any other fault of the Client.
14.2. TimeZoneOne shall not be liable to the Client by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Project, if the delay or failure was due to any cause beyond its control.
14.3 In no event shall TimeZoneOne be liable to Client for any incidental, consequential, punitive, special or indirect damages of any kind or nature, even if TimeZoneOne has been advised of the possible occurrence of such damages. In addition, TimeZoneOne’s total liability in respect of any and all claims by Client hereunder or in connection herewith, including but not limited to, any alleged negligence of TimeZoneOne or its personnel or subcontractors, shall not exceed, in the aggregate, the amount paid by Client to TimeZoneOne.
15. Consequences of termination
15.1. Either party may immediately terminate this Agreement and all outstanding SOWs by written notice to the other party: (a) if the other party commits a material breach of this Agreement or an outstanding SOW and such breach, if it is capable of being cured, is not remedied to the reasonable satisfaction of the terminating party within twenty (20) days of written notification of the breach; (b) if the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors; (c) if the other party or any of its staff are guilty of any misconduct and/or conduct that would be prejudicial to Company’s or Agency’s interests; or (d) there is a material change in the other party’s ownership or control or material changes to the other party’s financial position. Any such notice shall specify in reasonable detail the basis for Company’s election to terminate this Agreement.
15.2 Either party may terminate this Agreement and/or any outstanding SOW without cause by giving Agency sixty (60) days prior written notice.
15.3 This Agreement, and any outstanding SOWs, may be terminated by mutual written agreement of the parties.
15.4 The parties’ respective rights, duties and obligations hereunder including, without limitation, Agency’s obligation to provide Services (as and to the extent requested by Company), and Company’s obligation to pay for such Services, shall remain in effect through the date of termination in accordance with the terms of this Agreement and the applicable SOWs. Upon termination, if pursuant to a particular SOW, Agency is to receive a monthly or annual fee, such fee will be prorated based on the date of termination, unless such SOW provides otherwise.
15.5 Prior to the date of termination of this Agreement, Agency shall use all reasonable commercial efforts to secure the return of Company’s property, Data and Materials entrusted by Agency to third parties.
15.6 Within 30 days of the date of termination, and upon receipt of all payments due to Agency by Company, Agency shall make available to Company or its representative all property, Data and Materials in Agency’s possession or control belonging to Company.
16. Amendments to terms & conditions
16.1. These terms and conditions may only be amended in writing and with the agreement of both TimeZoneOne and the Client.
17. Governing law
17.1. This agreement is governed by US law.
18.1 If, after the date of this Agreement, any provision hereof is held to be illegal, invalid or unenforceable, such provision shall be fully severable, and the remainder of the Agreement shall remain enforceable and not affected thereby.
18.2 The waiver of, or failure of either Party to exercise, any right in any respect provided for herein shall not be deemed a waiver of any further right under this Agreement or a waiver of the ability to exercise the same right on a different occasion.
18.3 No rule of law that requires that any part of the Agreement be construed against the party drafting the language will be used in interpreting this Agreement.
18.4 This Agreement constitutes the entire agreement between Client and ORA with respect to the subject matter hereof and there are no representations, understandings or agreements about the subject matter hereof that are not fully expressed in this Agreement.