Each Statement of Work (“SOW”) issued by Ethos3 Communications, LLC (“Ethos3”) shall be governed by these terms and conditions of service (“Terms and Conditions”) whereas Ethos3 and Ethos3’s client (“Client”) are in mutual agreement with respect to provision of the presentation services Ethos3 will provide Client. By acceptance of an SOW, Client agrees to and accepts these Terms and Conditions or those set forth in an applicable SOW. No other terms or conditions, including, but not limited to, any terms and conditions set forth in a document issued by Client, will be binding upon the parties unless accepted by them in a writing signed by both parties.
(a) SOWs. These Terms and Conditions sets out the general terms and conditions applicable to the Services (defined below) Ethos3 may provide under a specific SOW. Each SOW shall describe a specific project or set of Services, shall be subject to these Terms and Conditions, and shall be signed and agreed upon by both parties. Each SOW shall include a description of the Services to be performed, the fees to be charged for such Services, and such other matters as the parties may agree. Each SOW, together with these Terms and Conditions, shall together constitute an independent agreement. No work on a particular project will begin unless and until the parties agree to and sign an SOW.
(b) Priority. Each SOW may supplement or elaborate on these Terms and Conditions. If there is a conflict between any term of these Terms and Conditions and an SOW, in that instance the conflicting terms in the SOW shall control, but only for that The parties specifically object to any additional, different, or conflicting terms or conditions in any form document generated by a party and such provisions shall have no effect on these Terms and Conditions or any SOW.
2. Service Description
(a) General. Once Ethos3 receives payment due upon execution as prescribed by the applicable SOW and the SOW is signed by both parties, Ethos3 will provide the Design Services and/or Training Services (collectively, “Services”) as described below if designated in the applicable
(b) Design Services. Ethos3 will provide the presentation design services (the “Design Services”) described in the applicable SOW to Client can expect to be involved in multiple phases of its own project. Examples of such participation may include directing the initial organization efforts or giving constructive feedback on content and design themes.
(c) Training Services. Ethos3 will provide the training services (the “Training Services”) described in the applicable SOW to Training Services may include a program that teaches Client how to translate content for an audience, create visually captivating slides, craft a narrative like a master storyteller, and deliver a compelling presentation.
(d) Deliverables. In the course of providing the Design Services, Ethos3 may generate deliverables that include at a maximum, the following: content pitches, a design moodboard, a storyboard, a design comp, a final draft of the presentation, and up to three rounds of revisions for each deliverable (collectively, the “Design Deliverables”). The final draft of the presentation that represents the culmination of any and all revisions performed as part of the Design Services under the SOW shall be the “Final Draft.” Ethos3 shall identify deadlines that Client must meet in order to ensure that the Design Deliverables are submitted by the desired deadline. Client acknowledges and agrees that it is not entitled to receive copies of Ethos3’s working files created in the course of performing the Design In the course of providing the Training Services, Ethos3 may deliver certain materials (such as training booklets) to Client (the “Training Deliverables”). Client acknowledges and agrees that Ethos3 and its licensors retain all right, title, and interest in and to the intellectual property rights arising out of the Training Deliverables and that Client is granted no rights or permissions in the Training Deliverables. The Design Deliverables and the Training Deliverables together shall constitute the “Deliverables.”
(e) Visual Slides. Ethos3 creates presentations that are highly visual and dynamic and discourages the use of bullet-points or an abundance of text on each slide except where absolutely necessary or appropriate. As a result of this style, the number of slides in decks created by Ethos3 is likely to be greater than the number in Client’s current slide deck or in slide decks Client has worked with before. The slide count mentioned in the SOW is the maximum number covered under the pricing set forth in the SOW. It is not necessarily a target number of slides. The final deck may be smaller than the number mentioned. This does not mean that Ethos3 did not meet its obligation to the Client.
3. Client Obligations
(a) Client Obligations. Client shall designate an employee to serve as Ethos3’s primary point of contact and Client’s authorized representative with respect to the project identified in the SOW. This primary point of contact shall gather, reconcile, and synthesize feedback from Client’s employees working on the project and shall forward that to Ethos3. Client will engage actively in directing initial organization efforts, providing constructive feedback on content and design themes, and otherwise collaborating with Client will respond promptly to Ethos3’s requests for instructions, information, documents and assets, and approvals. Client will provide Ethos3 with access to individuals, premises, documents, assets, and information necessary and desirable to enable Ethos3 to perform the Services. Client shall send Ethos3 all information, documents, assets, content, and other materials necessary or desirable for Ethos3 to perform the Services before the parties’ initial meeting (which may occur in person, by telephone, or via other means). Client’s delay in providing feedback or other materials will affect the date by which Deliverables will be submitted. Client shall comply with Ethos3’s schedule. Otherwise, Client shall not be entitled to have the Final Draft delivered by the anticipated deadline identified in the applicable SOW.
(b) Stock Materials. Client acknowledges that the licensing terms and conditions applicable to the Stock Materials that are not subject to a premium or extended license may be found here: http://www.istockphoto.com/legal/license-agreement and are incorporated by this reference into these Terms and Conditions and made applicable to Client’s use of the Stock Client agrees to comply with the licensing terms and conditions applicable to the Stock Materials provided to Client by Ethos3.
4. Billing & Payments (fees and expenses)
(a) Pricing. In consideration for the Services provided by Ethos3, Client will pay Ethos3 the fees set forth on the applicable SOW. Client understands that Client may not want or need all of the Deliverables or Services made available by Ethos3, and Client agrees and acknowledges that if Client does not desire to receive or use all of the Deliverables or Services made available, Client is not entitled to any reduction in the fee. Client shall reimburse Ethos3 for all reasonable expenses incurred by Ethos3 in the course of performing the Services. Client agrees that it will be solely responsible and liable for all costs, labor and any other fees, costs, or expenses associated with securing the right to use any Third Party Similarly, Client agrees that it will be solely responsible and liable for all costs, fees, and other expenses associated with securing the right to use any Stock Materials to the extent they are subject to an extended license and additional fee from the applicable vendor.
(b) Payment. If Client does not consent to or pass a credit check, Client shall pay the full amount of the fees set forth on the applicable SOW to Ethos3 upon execution of the SOW. If Client consents to and passes a credit check, Client shall pay Ethos3 one half of the fees set forth in the applicable SOW upon execution of the SOW. Client shall reimburse Ethos3 for all reasonable pre-approved expenses incurred by Ethos3 in the course of providing the If Client pays only one half of the fees set forth in the applicable SOW upon execution of the SOW, Client shall pay the remaining balance of the fees within fifteen (15) days of the date of Ethos3’s invoice, which shall issue on the earlier of completion of the Services or three (3) months following the Effective Date. Invoices will contain information with regard to the Services provided by Ethos3 and any additional expenses or charges. All payments shall be made in U.S. Dollars. Payments which have been remitted and unused shall be considered non-refundable as of one year after the date of remittance.
(c) Taxes. The fees set forth on the SOW do not include any federal, state or local taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes on any amounts payable by Client However, Client shall not be responsible for any taxes imposed on or with respect to Ethos3’s income.
(d) Interest. All late payments shall bear a service charge of the lesser of the rate of one percent (1%) per month, or the highest rate permitted under applicable law, on the unpaid balance from the due date until received by Ethos3 and such amount shall be calculated daily and compounded Client shall reimburse Ethos3 for all costs incurred (including reasonable attorneys’ fees) in collecting any late payments or otherwise resulting from Client’s failure to remit payments when due, including, but not limited to, collection agency charges and costs and reasonable attorneys’ fees and costs. In addition to all other remedies available at law or in equity, Ethos3 may suspend the Services if Client fails to make timely payment and fails to make payment within five (5) days of notice of the breach.
(a) Term. The term of these Terms and Conditions will commence on the Effective Date and will continue in full force and effect until such time as Services have been rendered unless terminated earlier in accordance with these Terms and Conditions. If the SOW has not been fully performed at the time one party notifies the other of a desire to terminate the SOW, Client shall pay Ethos3 the amount due for Services performed under the SOW prior to the effective date of
(b) Termination. The parties may terminate the SOW upon mutual written consent at any time. Either party may terminate the SOW on written notice if the other party fails to cure a breach within thirty (30) days’ of written notice of the breach or if the other party commits an incurable breach. Either party may terminate the SOW immediately upon notice to the other if the other becomes unable to pay its debts as they come due, files or has filed against it a petition in bankruptcy, has a receiver appointed to wind up its business, or otherwise experiences an insolvency
(c) Effect of Termination. The termination of the SOW shall not affect the respective rights and obligations of the parties arising before the effective date of termination, and shall not limit the parties’ rights and remedies under applicable law or Termination in accordance with this Section 5 shall not constitute breach of these Terms and Conditions.
(d) Retainers. In the event of a retainer as described in the associated SOW, Client acknowledges that significant resource allocation and accommodations will be made by Therefore, Client understands that even if Client does not desire to receive or use all of the Deliverables and/or hours allocated for the fee set forth on the applicable SOW, Client is not entitled to any reduction in the fee.
(e) Survival. Sections 3, 4, 5, 6(e), 7, 8, and any right or obligation of a party that, by its nature, is intended to survive termination of any SOW and shall survive any termination or expiration of any SOW.
6. Use of Materials; Ownership
(a) Stock Materials. Ethos3 may include royalty-free stock photography, video, music and/or other media (collectively, “Stock Materials”) in the Deliverables. Client hereby grants Ethos3 authority to bind Client to the terms and conditions of the Stock Materials vendor for purposes of acquiring licenses to use the Stock Materials as they appear in the Final Draft for Client. Client acknowledges and agrees that it is solely responsible for complying with any terms and conditions governing use of such Stock Materials. Client further acknowledges and agrees that it is solely responsible for payment of all licensing fees, if any, with respect to Stock Materials to the extent they are subject to extended licenses or premium rates. Client acknowledges and agrees that it is not entitled to receive the unedited files related to Stock Materials from Ethos3. Client acknowledges and agrees that it may have to discontinue use of Stock Materials (even as they appear in Final Drafts) upon notice from Ethos3 for any reason at any time, and that Client shall bear any and all expense associated with ceasing use of the applicable Stock Materials, and deleting or destroying any copies in Client’s possession or control.
(b) Client Materials. Client may submit materials that it has created, and in which it owns and has the right to use the intellectual property rights (the “Client Materials”) to Ethos3 for use and incorporation into the Deliverables. Client represents and warrants that it owns the intellectual property rights in and has the right to allow Ethos3 to use the Client Materials in the Deliverables. Ethos3 shall have no responsibility or liability for, and Client shall reimburse, hold harmless, indemnify, and defend Ethos3 against claims arising out of Client’s use or misuse of the Client Materials, whether incorporated into the Deliverables or otherwise, or arising out of Ethos3’s use of the Client Materials in accordance with Client’s instructions. Ethos3 acknowledges and agrees that Client continues to own the intellectual property rights arising out of the Client Materials even after termination or expiration of these Terms and Conditions.
(c) Third Party Materials. If Client asks Ethos3 to incorporate any third party materials (“Third Party Materials”) into the presentation, Ethos3 may decline to do so at Ethos3’s sole discretion. Client shall be solely responsible for obtaining and establishing all rights and permissions necessary to enable Ethos3 to incorporate the Third Party Materials into the Deliverables (including the Final Draft) and for proving such rights and permissions to Ethos3’s satisfaction. Client acknowledges and agrees that it is responsible for any and all licensing fees for any and all Stock Materials and Third Party Materials either provided to or provided by Ethos3. Client represents and warrants that it has obtained all rights and permissions necessary to enable Ethos3 to use the Stock Materials and Third Party Materials in the Deliverables and as permitted and required by Client. Ethos3 will not be responsible for verifying, validating or securing the rights to any Stock Materials or Third Party Materials on behalf of Client. Client shall take all steps necessary to ensure it has the right to use Third Party Materials incorporated into the Deliverables.
(d) Assignment. Upon the later of Client’s acceptance of the Final Draft or Client’s payment in full of all fees and expenses due and payable under the SOW, Ethos3 shall assign any copyrights Ethos3 owns in and to the selection and arrangement of materials in the Final Draft to Client except that Ethos3 does not assign (and cannot assign and therefore excludes from the scope of the assignment) all Third Party Materials and Stock Materials incorporated into the Final Draft. Client acknowledges that though it may use the Final Draft as a whole, this does not entitle it to use the specific components of the Final Draft unless such separate use is permitted by a separate license governing use of that component (such as the third party licenses referenced in Section 6(c)). Client acknowledges and agrees that Ethos3’s and Client’s licensors retain the copyrights and other intellectual property rights arising out of the component icons, logos, and other discrete images that comprise the components of the Final Draft and other Deliverables (as well as the discrete files for such components) as well as all Deliverables (except the Final Draft as noted above) themselves. This provision shall govern in the case of any conflict between these Terms and Conditions and the assignment.
(e) License. Upon prior written approval by Client, Client hereby grants Ethos3 a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to reproduce, publicly display, publicly perform, distribute, and otherwise use (on Ethos3’s website, in Ethos3’s promotional materials, and elsewhere) the Final Draft and all Client Materials and Third Party Materials as used in the Deliverables to show other clients and prospective clients examples of Ethos3’s work product. Client represents and warrants to Ethos3 that Client owns the intellectual property rights in or has the right to grant Ethos3 permission to use the Client Materials and Third Party Materials as described in this Section 6(e).
7. Disclaimer; Indemnification; Limitation of Liability
(a) Disclaimer. THE SERVICES AND ALL MATERIALS AND INFORMATION PROVIDED BY ETHOS3 (INCLUDING ALL STOCK MATERIALS AND DELIVERABLES) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND ETHOS3 MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ETHOS3 ASSUMES NO LIABILITY FOR LOSS OR DAMAGE TO COMMERCIAL MATERIAL OR OTHER PROPERTY FURNISHED TO ETHOS3 BY CLIENT ETHOS3 IS NOT RESPONSIBLE FOR ANY CHANGES TO THE TERMS AND CONDITIONS OF USE ASSOCIATED WITH THE SOURCES OF THE STOCK MATERIALS OR THIRD PARTY MATERIALS. ETHOS3 IS NOT RESPONSIBLE FOR CLIENT’S USE OR MISUSE OF STOCK MATERIALS OR THIRD PARTY MATERIALS.
(b) Client Indemnification. Client shall reimburse, indemnify, defend, and hold Ethos3 harmless from and against any and all losses, claims, causes of action, liabilities, damages, settlement amounts, deficiencies, costs and expenses (including reasonable attorneys’ fees) incurred in connection with any third-party claims, demands, suits or proceedings made or brought against Ethos3 arising out of or related to (i) any Client Materials, Stock Materials, or Third Party Materials, or Ethos3’s use of them in accordance with Client’s instructions or the applicable licensing terms, or Client’s use or misuse of them in any way, (ii) any actual or alleged breach of these Terms and Conditions by Client, (iii) any modifications or revisions to the Deliverables made by anyone other than Ethos3, (iv) any breach of the licensing terms and conditions of Stock Materials or Third Party Materials by Client, (v) any violations of copyright, trade secret, trademark, privacy rights, publicity rights, and other intellectual property rights arising out of or related to Client’s revisions to the Final Draft or the use of the Deliverables.
(c) Ethos3 Indemnification. Ethos3 shall reimburse, indemnify, defend, and hold Client harmless from and against any and all losses, claims, causes of action, liabilities, damages, settlement amounts, deficiencies, costs and expenses (including reasonable attorney’s fees) incurred in connection with any third-party claims, demands, suits or proceedings made or brought against Client arising out of or related to (1) any actual or alleged material breach of these Terms and Conditions by Ethos3, (2) Client’s use or any Stock Materials or Third Party Materials in accordance with Ethos3’s specific instructions, or (3) any breach of the licensing terms and conditions of Stock Materials or Third Party Materials by Ethos3.
(d) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOOD WILL, OR OTHER PECUNIARY LOSS) ARISING OUT OF ANY SOW. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY SOW EXCEED THE AMOUNTS PAID BY CLIENT TO ETHOS3 DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM AND IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A PARTICULAR SOW EXCEED THE AMOUNTS PAID BY CLIENT TO ETHOS3 UNDER THAT SOW.
(a) Notice. All notices required under these Terms and Conditions shall be in writing sent by electronic mail unless changed by notice pursuant to this Section 8(a).
(b) No waiver. Failure of a party to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
(c) No Assignment. Neither a specific SOW, nor any of the rights or obligations under a specific SOW, may be assigned, delegated, or transferred by Client without first obtaining Ethos3’s consent in Ethos3 shall not be required to provide Services hereunder for the benefit of any person other than Client. A change in control shall be considered an assignment for purposes of this Section 8(c).
(d) Remedies. Except as otherwise expressly stated in these Terms and Conditions, all remedies are cumulative and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other.
(e) Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect.
(f) Force Majeure. Ethos3 shall be excused for failure or delay in performance when and to the extent that performance is prevented or delayed by any government authority, act of God, Client, disaster, terrorism, tornado, flood, fire, or other similar event beyond such Ethos3’s reasonable control.
(g) Integration. These Terms and Conditions along with an applicable SOW together contains the entire agreement between the parties relating to the subject matter herein contained, supersedes all prior and contemporaneous agreements of the same subject. No change or modification of any of its provisions shall be effective unless made in writing and signed by both parties.
(h) Jurisdiction; Venue. These Terms and Conditions shall be governed and construed in accordance with the laws of the State of Tennessee, without regard to its conflicts of laws rules. Each party hereby irrevocably submits to the sole and exclusive jurisdiction of the state and federal courts located in Nashville, Tennessee for purposes of any action, suit or proceeding arising out of these Terms and Conditions or the relationship between the parties.