General Terms and Conditions
The following are the General Terms and Conditions under which Unique Advertising and Display Corp. (“Unique”) provides Services to you, our valued customer ("Customer") under this Agreement and shall also apply to every Change Order or Show Site Services Order issued by Unique to Customer. No modification or waiver of any provision in these General Terms and Conditions will be effective unless in writing and signed by the party sought to be charged with the change. Unique’ performance is expressly conditioned on Customer’s acceptance of these General Terms and Conditions and Customer agrees to be bound hereby.
A. The Quotation dollar amount is due and owing to Unique based on your current terms, at the time of signing this Agreement. A failure to do so may result in cancellation of this Agreement at Unique’ sole and absolute discretion.
B. Unique is to receive the signed Agreement and completed credit card authorization form or deposit in other form no later than 5 business days after the Agreement is signed by Customer.
A. “Agreement” means collectively the foregoing description of Unique's Services (“Unique Services”) together with the Digital File Submission Guide and these General Terms and Conditions.
B. “Customer Property” means any Customer owned property, product, literature, or equipment, which may be stored or displayed in or about the Exhibit during the Show and, includes the Exhibit, in the event that Customer purchases the Exhibit under this Agreement.
C. “Digital File Submission Guide” means the technical guidelines for submitting Customer graphic art and/or information to Unique which is available for viewing or download through Unique’ s online ordering system for the Show.
D. "Drayage Contractor" means the contractor chosen by the Official Show Contractor to handle the movement of goods into and out of the tradeshow facility, which is referred to as "drayage". The Drayage Contractor may serve a dual role as Official Show Contractor.
E. "Exhibit" means certain tangible personal property or materials that can be assembled or installed in designated display or booth space at the Show.
F. "Official Show Contractor" means the organization chosen by Show Management to coordinate all necessary Services required by Customer, as detailed in this Agreement and any Change Order or Show Site Service Order.
G. "Services" means collectively the services provided and tangible personal property rented by Unique to the Customer as set forth in the Unique Services.
H. "Show" means the event, tradeshow or convention identified in the Unique Services.
I. "Show Management" means the organization responsible for the producing, directing, and managing the Show.
J. "Total Quotation" means the estimate, corresponding to the applicable "Sign By Date" for "Standard Price," "Incentive Price," or "Last Price," as set forth in the Unique Proposal or estimate.
2. CUSTOMER'S EXHIBIT -- INSTALL AND DISMANTLE
Subject to the terms and conditions of this Agreement, Customer shall be responsible for ensuring that all component parts of the Exhibit are available to Unique on a timely basis in order for Unique to adequately provide the installation and dismantling Services. Further, it is acknowledged and agreed that the Services are to be performed during the prescribed dates set by the Official Show Contractor and/or Show Management. Upon Customer’s use of the Exhibit, satisfactory set-up shall be deemed to have occurred. Upon Unique’ delivery of the Exhibit to the Drayage Contractor or its designate, satisfactory dismantling and delivery to Customer shall be deemed to have occurred. Unless otherwise indicated in the Unique Services, shipping arrangements and costs related to material handling or transportation of Customer’s Property or Exhibit Property shall be Customer’s sole and absolute responsibility. Customer is responsible for ensuring its own Customer Property and any Unique rental property, including any Exhibits, Audio Visual, or rental furniture, against any loss or damage during the term of this Agreement, including the period in which such property is in transit or storage.
3. DRAYAGE AND NON-UNIQUE RENTAL PROPERTIES
Unless indicated otherwise in this Agreement, drayage charges for Customer Property, Exhibit, or rental materials from Unique are not included in this Agreement and will be billed to Customer at published show rates by the Official Show Contractor.
4. PRICES AND PAYMENT TERMS
A. Price Quotations. Work quoted on a "time and material" basis (also referred to as "T/M" in this Agreement) is an estimate and is provided to Customer for budget and planning purposes only and shall not bind Unique or limit the amount finally charged to Customer based upon actual labor and materials used.
B. Electrical Services are billed separately and are estimated in advance. Actual charges are based upon actual usage and Customer shall pay directly to Show service provider upon completion. These charges, services and labor will be billed to Customer at published show rates by the Official Show Contractor.
C. Payment Terms. Customer shall pay Unique 100% of the Total Quotation at the time of signing this Agreement, unless Unique extends Different terms to Customer hereunder. In addition, Customer shall pay at the end of the Show, upon receipt of invoice, any and all “time and material” charges not already included in the Total Quotation. If credit terms apply to this Agreement, Customer shall pay any and all fees and charges not included in the advance deposit at the end of the Show, unless a different date is explicitly stated in this Agreement. All charges are automatically charged to the credit card on file as of that date. Any amounts not paid when due shall bear interest at the rate of 1½% per month, or the maximum legal rate, whichever is less. If Customer disputes a charge, Customer shall pay for all charges not in dispute and the parties will first attempt to resolve the amounts in dispute through negotiations.
D. Cancellation. This contract is non-cancelable for any reason after execution of this contract. If Customer cancels an order after this Agreement is signed by both parties, Customer agrees to pay 100% of the Total Quotation, and any applicable T/M and electrical service charges not already included in the Total Quotation, and any additional Services ordered after this Agreement is signed by the parties. Any conduct constituting a breach of this Agreement, including but not limited to, failure to make an advance deposit or to obtain a timely letter of credit as required, may at Unique’ s option be deemed a cancellation by Customer.
E. Taxes. Any taxes, government charges or fees which Unique may be required to pay or collect under any law upon or with respect to the Services provided under this Agreement are the sole responsibility of the Customer and shall be remitted by the Customer to Unique upon payment, invoicing, or demand (except taxes based or assessed on Unique's net income).
5. INTELLECTUAL PROPERTY AND CUSTOMER WARRANTY AND INDEMNITY
A. Work Product. All Exhibit concepts or designs and related developments, discoveries, inventions, improvements, drawings, plans, sketches, specifications and other documents, data, works, or materials made, created, or acquired by Unique pursuant to this Agreement (“Work Product”), together with the patent, copyright, trade secret and all other intellectual property rights therein, are and shall remain the sole property of Unique, and Customer shall have no rights therein. All items of Work Product and the information contained therein COMPRISE TRADE SECRETS OF UNIQUE AND ARE PROTECTED AS UNPUBLISHED WORKS UNDER COPYRIGHT LAW. Upon payment in full by Customer to Unique of all amounts due under this Agreement, Customer shall have the non-exclusive right to use the Work Product at the Show but shall not have the right to make or distribute copies thereof nor the right to make derivative works based thereon.
B. Customer Work. In the event that Customer provides to Unique any exhibit, design, development, discovery, invention, improvement, drawing, plan, sketch, specification, document, data or work made or created by Customer or any third party (“Customer Work”):
(i) Customer represents that Customer has the right to provide the Customer Work to Unique; and
(ii) Customer warrants that the Customer Work is original, and does not include any material that will infringe, nor will any building, fabrication, extension, modification or adaptation of the Customer Work infringe any patent, copyright, industrial design, trade secret or any other intellectual property right of any third party; and
(iii) Customer shall indemnify, defend, and hold harmless Unique, its associates, affiliates, and subsidiaries, from and against any and all losses, damages, claims, lawsuits, judgments, liabilities, or expenses (including attorney’s fees) which in any manner arise out of or relate to the building, fabrication, extension, modification, or adaptation of such Customer Work. In the event that Unique provides designs, drawings, plans, sketches, or other works created by Unique which Customer or a third-party build, fabricates, modifies or adapts, then
(a) Customer shall assume sole risk, liability and legal exposure in connection therewith; and
(b) Customer shall indemnify and hold harmless Unique, its associates, affiliates, and subsidiaries, from and against any and all losses, damages, claims, lawsuits, judgments, liabilities or expenses (including attorney’s fees) which in any manner arise out of or are connected therewith.
Customer is responsible for any damage or modification to rental properties of Unique or any other equipment rented from Unique as part of this Agreement, except for normal wear and tear.
7. CHANGE ORDERS & SHOW-SITE SERVICES
A. Changes to Services Pre-Show. After this Agreement is signed by Customer, any pre-Show changes to the Services as provided in this Agreement will be itemized in a change order ("Change Order") and must be signed by Customer.
B. Services Ordered at Show Site. For Services ordered at the Show site (“Show Site Service Orders”), the following shall apply: (1) Show Site Service Orders are governed by the terms and conditions of the Show management provider contract set forth in the exhibitor kit; (2) Show Site Service Orders will be billed at the prevailing floor order rate; (3) a coordination fee will be paid by Customer on non-Unique services ordered on Customer’s behalf by Unique at a rate mark up of 22%; and (4) full payment is due and owing to Unique prior to the end of the Show.
8. FORCED FREIGHT
Unique is not liable for Customer Property left on the show floor after the show closing deadline, with or without a Material Handling Services/Straight Bill of Lading signed by Customer. It is Customer’s responsibility to complete accurate paperwork for shipping and to ensure Customer Property is properly labeled. If Customer Property remains on the floor after the show closing deadline, Unique has the right to remove the Customer Property. Unique is authorized by Customer to proceed in the manner chosen by Customer on the Order for Material Handling Services/Straight Bill of Lading, if one has been completed, or otherwise to ship Customer Property at the discretion of Unique and at Customer’s expense. Unique shall incur no liability for such shipment. Unique retains the right to dispose of Customer Property without liability if left on the show floor unattended, without labels or not correctly labeled unless notified in writing ahead of show close that customer would like unique to manage and ship said property. An additional fee and 22% markup will be added to any incurred costs by Unique for said materials.
9. INDEPENDENT CONTRACTOR
This Agreement is not intended to create an agency or joint venture relationship between Unique and Customer. Neither party shall have any authority to bind the other to any obligation with respect to any third parties, unless specifically provided for in this Agreement or otherwise agreed to in writing by the parties.
Both parties shall maintain during the performance of Unique’ Services the following insurance coverages: (1) workers’ compensation, at a minimum of the statutory limits; (2) commercial general liability, at $2 million; and (3) auto liability including coverage for all owned, hired and non-owned vehicles, at $1 million. Customer shall name Unique as an additional insured on these policies (except workers’ compensation) and shall provide Unique with a Certificate of Insurance evidencing this coverage upon execution of this Agreement.
A. Warranty. Unique warrants that its Services will be provided in a workmanlike manner. This warranty shall expire upon the completion of the Services. Unique does not warrant, and is not responsible for, services provided by contractors appointed by the facility or 3rd party Services.
B. Remedy. Upon written notice to Unique that the Services have not been performed as warranted ("Defect"), Unique will, in the event Unique reasonably agrees that a Defect exists, undertake reasonable efforts to correct the Defect if practicable. This remedy is the SOLE and EXCLUSIVE remedy on which Customer may rely. If this remedy is ultimately adjudged to have failed of its essential purpose, Unique's sole liability shall be to refund only that portion of the cost related to the Defect in Service.
C. Notice. Notice of any Defect in the Services must be given to Unique in writing promptly, but in no event later than the end of the Show.
D. Disclaimer. UNIQUE GIVES NO OTHER WARRANTIES EXCEPT THOSE EXPRESSLY CONTAINED HEREIN. UNIQUE DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS IMPLIED BY OPERATION OF LAW OR OTHERWISE, USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY AND FITNESS FOR PARTICULAR PURPOSE.
E. Suitability. It shall be Customer’s responsibility to provide Unique with accurate, complete, and detailed instruction related to the Services and/or Exhibit. Customer represents and warrants that it alone has determined that the Services and/or the Exhibit shall suitably meet any safety requirements and the requirements of their intended function including, but not limited to, the specific Show requirements. It is expressly understood that any advice furnished by Unique with respect thereto, or the condition of the Exhibit is given without charge, and Unique assumes no obligation or liability for the advice given, alterations to the Exhibit made at Customer’s request or results obtained, all such advice being given and accepted at Customer’s risk.
12. PERSONAL DATA
13. LIMITATIONS OF LIABILITY
The following limitations of Unique's liability are acknowledged by the parties to be fair and reasonable:
A. Disclaimer and Limitation of Damages. IN NO EVENT SHALL UNIQUE BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR ANY OTHER THEORY OF LIABILITY. Such damages include, but are not limited to, loss of profits, loss of business opportunity, loss of use of the Exhibit, Cancellation of show, damage to property, or claims of third parties. The total liability of Unique to Customer from any cause whatsoever, except liability related to transportation services as limited below, will be limited to the lesser of Customer’s actual damages or the purchase price for the Services that are the subject to Customer’s loss or damage.
B. Transportation Services Liability. In the event that transportation services are provided by Unique, as specifically set forth and detailed in the Unique Estimated Services, and a loss or damage to Customer's properties results there from, then Unique' liability is limited to the following:
(i) Unique shall be liable for loss or damage to Customer's properties only if such loss or damage is caused by the sole negligence or willful misconduct of Unique and, in that event, Unique liability is limited to the lesser of 1) the depreciated value of the properties; 2) the repair cost; or 3) the limitation of liability which is the lesser of $.50 (fifty cents) per pound per package, $100.00 (one hundred dollars) per package or $1500.00 (one thousand five hundred dollars) per occurrence.
(ii) Unique IS NOT AN INSURANCE COMPANY AND DOES NOT OFFER OR PROVIDE INSURANCE. Unique will not be liable or responsible for loss or damage to Customer Goods unless such loss or damage is caused by Unique's negligence. Unique's liability in all circumstances shall be limited to the amount of this cap. Notwithstanding the foregoing, all shipments containing the following items of extraordinary value are limited to the maximum declared value of $500.00 (USD). 1. Clocks, jewelry, including costume jewelry, furs or items trimmed in fur; 2. Coins, money, currency, gift certificates, gift cards, debit cards or credit cards; 3. Personal effects including without limitation, clothing, paper and documents or any other items of extraordinary value. In addition, any Declared Value in excess of the maximum stated above is null and void and the acceptance by Unique for carriage of any shipment with a declared value in excess of the allowed maximums does not constitute a waiver of these maximums. Under no circumstance will Unique be responsible for any incidental, consequential or punitive damages due to loss, damage, theft or delay of Goods or any other causes.
C. Risk of Loss. UNIQUE DOES NOT PROVIDE ON-SITE SECURITY. AT NO TIME SHALL UNIQUE BE LIABLE FOR FIRE, WATER DAMAGE, THEFT, LOSS OF PROPERTY OR OTHER RISKS OR DAMAGES TO THE EXHIBIT OR CUSTOMER'S PROPERTY WITHIN THE EXHIBIT. Unique is not responsible or liable for any Customer owned property or equipment while on the Show floor or while awaiting transportation. Customer is responsible for obtaining or providing its own insurance and for taking adequate security measures to protect its properties at Show site. Where Unique arranges for security for Customer through the Official Show Contractor, Customer shall look solely to that party in the event of any loss or damage.
D. Indemnification. Except as otherwise provided herein, each party agrees to indemnify and hold the other party harmless from and against any and all claims, demands, costs and expenses, including reasonable attorney's fees for the defense thereof, arising from
(i) the indemnifying parties, or its employee's, agent's, or representative's wrongful or negligent act or omission or
(ii) the indemnifying party’s breach of any representation, warranty, or obligation under this Agreement.
In case of any action or proceeding brought against either party by reason of any such claim, upon notice from such party, the indemnifying party covenants to defend such action or proceeding (by counsel reasonably satisfactory to the other party), unless such action or proceeding alleges the joint or concurring wrongful or negligent act, or omission, of both parties.
E. Release of Liability. While Unique strives to ensure a safe workplace, should Customer or any invitee of Customer enter the exhibit space, or Unique's office and warehouse premises, while Unique is providing Services, Customer and such invitees assume the risk of injury and responsibility for their actions and Customer agrees to indemnify and hold Unique harmless for and defend it against any harm caused to persons and/or damage to properties resulting there from. Unique shall have the right to request such persons leave until the area is considered safe, request and receive a written release of liability from Customer with respect to such persons, cease provision of Services without liability to Customer or any combination of actions thereof. When Customer acts as supervisor of Unique, Customer releases Unique from liability for acts arising out of or injury caused by work under the control of Customer or in accordance with the Customer’s instructions.
F. Concealed Damage: Unique shall not be liable for concealed loss or damage including but not limited to; glass, electronic equipment, prototypes, original art, uncrated Goods, or improperly packaged or labeled Goods.
13A STORAGE SERVICES AND WAREHOUSEMAN’S LIEN
A. Unless otherwise stated in the Proposal, Client will be charged for in/out handling of Client Property at Unique's then prevailing local market rate. Local rates vary depending on location and market conditions. In the event Client requests the final or permanent removal of any Client Property from a Unique facility, Client shall pay Unique its then prevailing local rate to conduct a final inventory and full inspection of such goods prior to removal.
B. Client will be charged for storage of Client Property at the applicable local rate based upon the total number of cubic feet that Client Property occupies. Unless otherwise stated in the Proposal, storage charges will be computed on a monthly basis and billed quarterly to Client. Warehouse services are intended for Client Property being actively used in trade show programs. Notwithstanding the storage charges provided in the Proposal, during such periods that Client Property in storage with Unique is inactive for more than twelve months or more, Unique reserves the right from time-to-time to increase warehouse fees on Client Property upon thirty (30) days written notice to Client.
C. Client acknowledges that Unique shall have a warehouse (or storer’s) lien upon Client Property in accordance with the terms of this Agreement and the Uniform Commercial Code of the State where the properties are stored. This lien applies to, but is not limited to, Client Property presently stored or hereafter stored with Unique. This warehouse lien shall apply to all charges owed by Client to Unique including, but not limited to, charges for storage, storage related services, maintenance, repair, construction, transportation, transportation related services, show services, and final inventory and inspection, all as permitted by UCC § 7-209, as enacted in the State where the property is located. If such charges are not paid when due, Unique may, after due notice in writing to the Client, sell or dispose of any Client Property at public or private sale to pay such charges and all expenses, costs of collection, court costs and reasonable attorneys’ fees incurred in collection efforts or enforcing this lien and/or any other security interest, as permitted by UCC § 7-210 as enacted in the State where the property is located. Unique will release Client Property according to Client’s instructions upon receipt of payment, without liability to Unique, of all charges and other amounts owed to Unique.
Neither party shall be liable for any damages sustained from delay or non-performance due to events beyond its reasonable control, including without limitation, strikes or other labor disputes, weather, earthquakes, fires, floods, war, riots, civil disorder, acts of terrorism, Environmental issues, world or national pandemics, Acts of God, failure of power or utilities and government acts. If an occurrence over which neither party has reasonable control arises which would prevent, postpone, interrupt, or require cancellation of the Show, Customer shall reimburse Unique for its direct expenses in pursuing or providing Services until the date of this occurrence. Notwithstanding the foregoing, this Section 14 shall not apply to the financial inability of a party to perform hereunder, or to any changes in the economy or marketplace.
15. DISPUTE RESOLUTION: APPLICABLE LAW & JURISDICTION
Any dispute arising out of or related to this Agreement shall be resolved in accordance with the laws of the State of New York, without reference to its choice of law provisions. Except as provided in this Section 15, all disputes arising hereunder shall be resolved by binding arbitration in New York, NY in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Where injunctions or other equitable or similar relief is sought, the parties may pursue any such action in any court of competent jurisdiction. For a dispute of nonpayment, Unique may pursue resolution in any court of competent jurisdiction or through collection procedures.
16. LIMITATION PERIOD
All causes of action against Unique arising out of the performance or non-performance of the terms of this Agreement must be filed no later than one (1) year after the cause of action accrues.
A holding that any term or condition hereof is void or unenforceable shall not render void or unenforceable any other terms or condition unless such invalidity materially impairs the ability of the parties to consummate the transaction contemplated by this Agreement.
18. Warehousing/Temporary Storage/Long Term Storage:
All terms and conditions relative in Warehousing/Temporary Storage/Long Term Storage are contained in separate agreements titled “Storage Agreement”. In the event that a Storage Agreement is not executed between the parties, the following shall apply with respect to Unique’ liability for Customer Goods. The responsibility of Unique with respect to Customer Goods is limited to the exercise of ordinary care and diligence in handling and storing of Customer Goods. Unique shall be liable only for loss or damage to Goods caused by Unique’ sole negligence. Unique’ liability is limited to $.50 (USD) per pound with a maximum liability of $100.00 (USD) per container, or $1,500.00 (USD) per shipment whichever is less. In case of partial loss or damage, the maximum liability shall be prorated based on weight. Unique is not responsible for any loss or damage to Goods caused by, but not limited to fire, theft, the elements, vandalism, moisture, vermin, mechanical breakdown, or failure, freezing or changes in temperature, as well as any other causes beyond Unique immediate control. Unique is not responsible for the marring, scratching or breakage of glass or other fragile items. Unique is not liable for the mechanical functions of instruments or appliances even if such articles are packed or unpacked by Unique. In no event shall Unique be liable for special, incidental, indirect or consequential damages, including business loss of any kind, resulting from any damage to or loss of the Goods or from any act or failure to act. Customer pays storage fees or costs for warehousing for use of the space only. There is no guarantee of security or representations made by unique as to appropriateness of the conditions for Customer Goods. The risk of loss remains Customers alone and Unique recommends the Customer carry and maintain insurance in amounts sufficient to cover its risk.
19. ENTIRE AGREEMENT
This Agreement evidences the final, complete, and entire agreement between the parties and supersedes all prior and contemporary written or oral representations or agreements with respect thereto. This Agreement may be modified ONLY by express written agreement signed by the party against whom enforcement is sought and may not be altered, modified, or waived orally, by course of performance, course of dealing or usage of trade. If this writing differs in any way from the terms and conditions of Customers order or if this writing is construed as an acceptance or as a confirmation acting as an acceptance, then UNIQUES ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL ON CUSTOMERS ASSENT TO ANY TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN CUSTOMER’S WRITING.
Further, this writing shall be deemed notice of obligation to Customer of such terms and conditions. If this writing is construed as the offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. In any event, the Customers acceptance of the Exhibit Services shall manifest Customers assent to the terms and conditions set forth in this Agreement.
Sections 4.C., 4.E., 5, 6, 12, 13, 15, 16 and 19 shall survive the termination of this Agreement.
Both parties agree that this Agreement may be executed in counterparts (including, without limitation, electronic signatures) delivered by .PDF, facsimile, original or otherwise, and together shall constitute a single binding agreement. Unique performance is expressly conditioned on Customer's acceptance of this Agreement and the parties hereto agree to be bound hereby as indicated by the signature of each party's authorized representative.