TERMS OF SERVICE

 

RECITALS

 

         A.        ExV is in the business of providing the ExV Agency’s PR, Event and/or Unscripted Television Development Services, and ExV desires to provide such services to Client.

 

         B.        Client is an enterprise seeking to engage ExV to provide services, as further described below.  

 

         C.        ExV and Client are executing this Agreement to set forth the terms and conditions governing ExV provision of services to Client.  

 

         In consideration of the mutual promises, covenants, warranties and representations contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

 

1           SERVICES; COMPENSATION

 

1.1                  Services.

 

a)        In consideration for Client’s payment, ExV agrees to provide the ExV Agency’s services (the “Services”).  Client acknowledges that ExV shall be the exclusive provider of Services with respect to the particular project (“Agreement”) for Client during the term of this Agreement. 

 

1.2      Compensation; Invoicing.  

 

a)        Client shall pay ExV in accordance with the payment terms in the applicable SOW.  Except as otherwise set forth therein, all fees will be payable to ExV within 5 calendar days of date of invoice. 

 

b)         ExV reserves the right to invoice Client the lesser of 12% annual interest or the highest annual interest rate allowable under applicable law for any outstanding, undisputed invoices not paid within 30 days of the date of any ExV invoice.  In the event Client's account is in default and placed for collection, ExV will be entitled to recover its costs of collection, including reasonable attorneys' fees.   

 

 

2           WARRANTIES; OBLIGATIONS. 

 

2.1      ExV warrants that the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any rights of third parties or any obligation ExV may have to others.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 2, EXV (ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS) MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED.  

 

2.2      Client agrees to cooperate fully and respectfully with ExV and take reasonable care to avoid injury to persons or property, and are responsible for ensuring Client’s employees, agents, invitees, attendees, and any like persons, do the same. Client shall provide, in a timely manner, such information as ExV may reasonably require for the provision of the Services, and ensure it is accurate in all material aspects.

 

3           CHANGE ORDER

Change in Scope of Services.  Client and ExV agree that, in the event that Client's scope of work, as specified in an SOW, changes during the term of the SOW, ExV reserves the right to revise the fees specified in such SOW to reasonably reflect such change.

 

4           INDEMNIFICATION 

a)        Client will indemnify, defend and hold harmless ExV, its Subcontractors and their respective employees, representatives and agents, from and against any and all third party claims, losses or damages (including costs of litigation and reasonable attorneys' fees) ("Claims") in proportion to the extent proximately caused by: (i) the acts or omissions of Client’s attendees, employees, agents, and/or any other like individual; (ii) Client’s breach of this Agreement and/or any SOW; (iii) Client’s violation of applicable law; and/or (iv) Vendor’s utilization of Client-referred Subcontractors (as set forth in Section 1.1(b) above).

 

5           LIMITATION OF LIABILITY; DISCLAIMER 

5.1                        MAXIMUM LIABILITY.  EXCEPT FOR CLIENT'S PAYMENT OBLIGATIONS OR A PARTY'S RECKLESSNESS, FRAUD OR INTENTIONAL MISCONDUCT IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES, CLAIMS, LIABILITIES, COSTS OR EXPENSES IN ANY WAY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY AMOUNTS IN EXCESS OF THE GREATER OF THE FEES PAID OR PAYABLE TO EXV FOR THE SPECIFIC SOW TO WHICH THE CLAIM RELATES.  

 

 

5.2      NO CONSEQUENTIAL DAMAGES.  NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR PENALTIES OR FOR SPECIAL, EXEMPLARY, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOST PROFITS, LOST OR DAMAGED DATA, FAILURE TO ACHIEVE COST SAVINGS, LOSS OF USE OF FACILITY OR EQUIPMENT, OR THE FAILURE OR INCREASED EXPENSE OF OPERATIONS, REGARDLESS OF WHETHER ANY SUCH LOSSES OR DAMAGES ARE CHARACTERIZED AS ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR IF SUCH LOSSES OR DAMAGES ARE FORESEEABLE. 

 

 

5.3      DISCLAIMER. Client acknowledges that it (and its attendees’) attendance to, and participation in, the Services are deemed at Client’s own risk and that anyone attending or taking part in the Services must use good judgment, obey all laws and take reasonable care to avoid any injury to their person or property. ExV EXPRESSLY DISCLAIMS, AND CLIENT AGREES TO HOLD HARMLESS ExV FROM, ANY AND ALL LIABILITY WITH RESPECT TO ANY DAMAGE, LOSS, INJURY OR ANYTHING ELSE CLIENT, CLIENT’S PROPERTY, OR CLIENT’S ATTENDEES MAY SUSTAIN OR INCUR BY PARTICIPATING IN THE SERVICES RENDERED..

 

5.4      Section Survival.  The indemnification obligations under this Agreement shall survive termination of this Agreement for a period of 12 months.   

 

6           CONFIDENTIALITY

 

Neither Party will disclose any information of the other which comes into its possession under or in relation to this Agreement and which is reasonably understood to be of a confidential nature (including, without limitation, pricing information).

 

7       INDEPENDENT CONTRACTOR

 

ExV shall render all Services as an independent contractor and not as an agent of Client.  Agency shall not enter into any agreements or incur obligations on behalf of Client without prior written consent from Client.  Nothing in this Agreement shall be construed as creating an association, agency, joint venture or partnership relationship between the Parties or imposing any liability attributable to such relationship upon either Party, nor will either Party have any express or implied right of authority to assume or create any obligation or responsibility on behalf of or in the name of the other Party.

 

8.2     TERM; TERMINATION

 

8.3     Master Agreement.

 

8.3.1   The term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein.  Upon termination of this Agreement, all outstanding statements of work shall also terminate as of such effective date.  

 

8.3.2  Either Party may terminate this Agreement for Cause by providing the other Party with notice of its intent to terminate for Cause.  The terminating Party shall include in such notice the basis for such termination, and the non-terminating Party shall have 30 days to rectify or modify its performance (the "Cure Period").  Upon expiration of the Cure Period, if the non-terminating Party has not rectified or modified its performance, this Agreement shall immediately terminate.  As used herein, "Cause" shall mean a material breach of the terms of this Agreement.  The foregoing notwithstanding, the Cure Period for nonpayment by Client of past due invoices shall be 30 days, and upon affirmation of its termination, ExV may immediately cease performing the Services.

 

83.3 All services rendered during the term of this agreement is defined on an at-will basis

 

9          CANCELLATION

 

9.2      Cancellation; Non-Refundable Payment 

a)      If for any reason the Agreement is cancelled or postponed (subject to subsection (b) below), Client acknowledges and agrees that the payment shall be retained by Vendor and is non-refundable under any circumstances.

 

9.3      Payment to Subcontractors. If for any reason the Agreement is cancelled or postponed, at any time, Client shall be liable for all payments made or due to third parties under the terms of this Agreement and shall indemnify ExV in relation to the same, provided first that ExV uses reasonable endeavors to mitigate any such costs.

9.4      Content Release. To the extent Client is legally able, Client grants ExV permission to use photographs, videos, brand images or any other digital media produced by ExV under the Agreement. ExV shall not make reference to, display, advertise, promote, or otherwise utilize in any manner the Client’s creative work product, clientele, creative methods, systems, or business processes without the prior written consent of the Client. 

9.5      Delegation; Subcontracting.  ExV shall remain responsible under this Agreement for Services that it delegates or subcontracts to a third party; provided, however, that, notwithstanding anything to the contrary (including without limitation Section 4.1), ExV shall not be responsible for any subcontractor selected by Client and/or used at Client's request. 

 

9.6      Governing Law.  This Agreement will be governed by the laws of the State of Georgia without reference to choice of law rules. 

 

9.7      Severability.  Each and every covenant and agreement herein shall be separate and independent from any other and the breach of any covenant or agreement shall in no way or manner discharge or relieve the performance of any other covenant or agreement.  In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement shall continue to be in full force and effect.  The Parties further agree to replace such illegal, void or unenforceable provision of this Agreement with a legal, valid and enforceable provision that shall achieve, to the extent possible, the economic, business and/or other purposes of such illegal, void or unenforceable provision. 

 

9.8      Waiver.  No waiver of any part of this Agreement is valid unless in writing signed by both Parties, and no waiver on one occasion is deemed a waiver on any other occasion unless expressly stated in the written waiver.  The delay or failure of either Party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed to be a waiver of such provisions or of its right thereafter to enforce each and every provision as written. 

 

9.9      Force Majeure.  ExV  shall not be responsible for any loss or damage of any kind caused by a failure or delay in performance of any obligation under this Agreement if such failure or delay is attributable to facts beyond its control, including wars (whether declared or undeclared), hostilities, boycotts, embargoes, strikes, public disorders, shortages of raw material or power, tribal disputes, acts of enemies, sabotage, fires, acts of God, pandemics, epidemics, government actions or compliance with governmental requirements, whether voluntary or pursuant to order, or floods.  

 

9.10    Entire Agreement; Amendments.  This Agreement contains the entire agreement and represents the complete understanding of the Parties with respect to the subject matter contained in this Agreement.  The Agreement and the provisions hereof may only be altered, amended, modified or superseded by an agreement in writing executed by both Parties. 

 

9.11     Survival.  Termination of this Agreement for any reason shall not release either Party from any liabilities or obligations set forth in this Agreement that (a) the Parties have expressly agreed in writing, including this Agreement, shall survive any such termination or (b) remain to be performed or by their nature extend beyond the termination of this Agreement; provided, that any provision that is stated to extend for a specified period of time shall survive only for such specified period of time.

 

10 POST CONTRACT ADDITIONAL SERVICES Post-Contract Additional Services: Upon termination of the initial contract, any further edits or support services rendered by the ExV Agency team will be billed at a rate of $300 per hour. An estimate of required service hours for each subsequent project will be provided in advance of engagement.

 

11  CONTACT INFORMATION
 Questions about the Terms of Service should be sent to  info@exv-agency.com