APPLESEED EVENTS LLC TERMS AND CONDITIONS OF SALE

  1. Appleseed Events Terms and Conditions Control the Agreement.
    1. These terms and conditions are incorporated into and made a part of the agreement or proposal (“Agreement”) by Appleseed Events LLC and any of its affiliates (“Appleseed Events”) to sell to the named Client the goods referenced in the form of a Statement of Work, Proposal, and/or invoice (“Goods”) and services (including, without limitation, any management, assembly, design, planning and delivery services (whether performed by Appleseed Events or a subcontractor)) referenced on the Statement of Work, Proposal, and/or invoice (“Services”).  The Agreement expressly limits Client’s acceptance to these terms and conditions.  Client may reject the Agreement by not ordering or receiving any Goods or Services.  The Agreement does not constitute an acceptance by Appleseed Events of any offer or counteroffer of Client, and Appleseed Events hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Client that already have been or hereafter may be presented to Appleseed Events with respect to the Agreement.
    2. If Client has submitted or will submit additional and/or different terms and conditions to Appleseed Events, or submit a counteroffer to Appleseed Events, Appleseed Events subsequent performance will not be construed as either acceptance of Client’s additional and/or different terms and conditions or Client’s counteroffer, nor will Appleseed Events subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof.  
  2. Prices.
    1. Unless otherwise agreed to by Appleseed Events in writing, Appleseed Events prices for the Goods and Services will be the prices stated on the Statement of Work, Proposal and/or invoice or Appleseed Events standard prices for such Goods and Services as of the date hereof; provided, however, that Appleseed Events may change the price for the Goods and Services in accordance with any change to its standard pricing for such Goods and Services prior to the date of delivery of Goods or performance of Services, as the case may be.
    2. The prices of any and all Goods and Services shall be confidential, and Client shall not disclose such prices to any unrelated third party.  Appleseed Events and Client acknowledge and agree that money damages for any and all breaches of Client’s obligation not to disclose the price of any Goods or Services is both incalculable and insufficient and that any such breach would irreparably harm Appleseed Events.  Therefore, in the event of an actual or prospective breach of the obligation of Client not to disclose the prices of any Goods and Services, Appleseed Events shall be entitled to a permanent and/or a preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Agreement against Client in addition to any other remedies to which Appleseed Events may be entitled at law or in equity.
    3. Any change to the agreed-to Statement of Work, will be described in a written change order prepared by Appleseed Events which describes with reasonable specificity the proposed increase or decrease, if any, in the fees and the extension or contraction, if any, in the time schedule resulting from the implementation of the proposed change order, and any other material impact the proposed change order would have to the Statement of Work.  No change order shall be effective unless agreed to in writing by Appleseed Events.
  3. Managers.
    1. Appleseed Events will designate owners, employees or representatives that it determines, in its sole discretion, to be a primary contact to act as its authorized representative with respect to all matters pertaining to the Statement of Work (the “Appleseed Events Manager”).
    2. Client will designate one of its owners, employees or representatives to serve as its primary contact with respect to the Statement of Work and to act as its authorized representative with respect to matters pertaining to the Statement of Work (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed.
    3. Any change in Board positions or leadership requires, within 5 days, confirmation or a new designation of the Client Contract Manager.
    4. Client Contract Manager is required to respond promptly to any reasonable requests from Appleseed Events for instructions, information, or approvals required by Appleseed Events to provide the Services.
    5. Client Contract Manager is required cooperate with Appleseed Events in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable Appleseed Events to provide the Services.
  4. Specifications.
    1. Unless Appleseed Events has expressly agreed otherwise in writing, it is Client’s responsibility to ensure that the Goods and Services are the ones that it has requested and that all specifications and quantities are correct.  APPLESEED EVENTS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT GOODS AND SERVICES CONFORM TO ANY SPECIFICATIONS, DRAWINGS, OR PLANS.
    2. All prices and services provided are subject to availability and limited quantities.  In the event of an item described by Appleseed Events being unavailable or unsuitable, Appleseed Events reserves the right to substitute while maintaining the integrity of the planning.
    3. In the event of a typographical error relating to price or quantity of an item described by Appleseed Events, Appleseed Events reserves the right to refuse to fill any order(s) that rely on such typographical error.  All prices and services provided are subject to availability and limited quantities.
  5. Submissions.
    1. If Client makes, or allows any third party to make, materially available including, without limitation, text, names, graphics, designs, colors, logos, trademarks, files and any such material (“Submissions”), Client is entirely responsible for the content of, and any harm resulting from, such Submissions.  By submitting any Submissions, Client represents and warrants that (i) Client has the full right and authority to submit such Submissions, and that no such Submissions are subject to any trademark, copyright or other proprietary right of a third party.  By submitting Submissions, Client grants Appleseed Events a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Submissions. 
    2. Without limiting any of those representations or warranties, Appleseed Events has the right (though not the obligation) to, in Appleseed Events sole discretion to refuse any Submission that, in Appleseed Events reasonable opinion, violates any Appleseed Events policy or is in any way harmful or objectionable.  Appleseed Events will have no obligation to provide a refund of any amounts previously paid.
    3. Appleseed Events will be entitled to use, edit, reproduce, publish, translate, sublicense, copy and distribute, and/or incorporate into other works in any form, Submissions for any commercial or other purpose whatsoever without compensation or other accounting to Client or any other person sending the Submissions, and will not incur any liability as a result of any similarities that may appear in our future operations. Client will continue to be responsible for the substance of the Submissions including, without limitation, any indemnification obligations related to such Submissions.  Appleseed Events is not required to treat any Submissions as confidential.
    4. By commissioning Appleseed Events to design and create a plan for the event, Client entrusts Appleseed Events to utilize its skills and capabilities to use the goods and services which will best showcase the Goods and Services as described in the Statement of Work.
  6. Permitting, Guest Count, Access and Photography.
    1. Client must provide Appleseed Events with accurate and complete information, documentation, and materials necessary for Appleseed Events to complete the Services, including, without limitation, planning criteria, artwork, logos, color samples, material samples, permits, plans, and information regarding the event, businesses, sponsors and guests, and all applicable information.  Compliance with rules, codes or regulations shall be the responsibility of Client, unless otherwise agreed.
    2. Client is responsible for final proofreading of the Statement of Work and Proposal before their release for creation.  In the event that Client has approved work containing errors or omissions, Client shall incur the cost of correcting such errors.
    3. Client must provide a final count of the number of guests, registered or not registered, to be in attendance at the event 7 calendar days prior to the date of the event.  Based on Appleseed Events’ ability to adjust and the availability of supplies, additional guests may or may not be accepted, and number of guest variations will result in additional fees which must be paid on the date of the event.
    4. Client must provide unobstructed access to the site of delivery.
    5. Client grants Appleseed Events permission to take photographs at the event and authorizes Appleseed Events LLC and its assigns and transferees to use and to copyright Client’s likeness in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its publications, illustrations, and advertising, including web-based publications.  Client understands and agrees that all Photos will become the property of the Appleseed Events and may not be returned.  Client irrevocably authorizes Appleseed Events to edit, alter, copy, exhibit, publish, or distribute these Photos for any lawful purpose for which Client waives any right to inspect or approve the publication wherein Client’s likeness appears.  Client understands that no payment, royalty, fee or other compensation shall become payable to Client by use of the Photos.  Client affirms the consent of parent or guardian if necessary.
  7. Shipment and Delivery of Goods, Licensing, and Performance of Services.
    1. Client shall bear the risk of loss and damage to Goods after delivery to the point of shipment or delivery.
    2. Shipment of all Goods shall be made F.O.B. point of shipment.  
    3. Any shipping and delivery dates for Goods or performance dates for Services given in advance of actual shipment or delivery of Goods, or performance of Services are Appleseed Events best estimates for informational purposes only, and deliveries of Goods and performance of Services will be made subject to prior orders on file with Appleseed Events.  Unless otherwise agreed to by Appleseed Events in writing, Appleseed Events may, in its sole discretion, use any commercial carriers for shipment of the Goods.  Appleseed Events will use its reasonable efforts to comply with Client’s requests as to method and route of transportation, but Appleseed Events reserves the right to use an alternate method or route of transportation, whether or not at a higher rate.
    4. Unless otherwise agreed to by Appleseed Events in writing, Client will pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss of, or damage to, Goods in transit.
    5. Client is responsible for obtaining at its sole cost and expense any and all necessary licenses and permits for the Goods and Services, including, without limitation, any licenses and permits for transportation.
    6. If Client is unable to receive the Goods when they are tendered, Client will be liable to Appleseed Events for any losses, damages, or additional expenses incurred or suffered by Appleseed Events as a result of Client’s inability to receive the Goods.
    7. Client immediately will inspect all Goods upon its receipt of them and will be deemed to accept the Goods upon receipt.
  8. Payment.
    1. All payments for Goods and Services must be made in United States currency unless specified in writing by Appleseed Events.  Payments for Goods and Services will be made by such means as Appleseed Events may specify, such as by cash, check, credit card or wire transfer provided that Appleseed Events may refuse, in its sole discretion, payment by any means.
    2. Payment for Services as a non-refundable Retainer is due at the time of order and required to hold an event date.
    3. Payment for Goods and Services in full is due within 15 days from the date of Appleseed Events invoice or the date of the delivery or the date of the event, whichever comes first; provided, however, that Appleseed Events reserves the right, in its sole discretion, to require full payment in cash before order entry, date of event, shipment, or delivery.
    4. Appleseed Events shall have the right to offset any and all amounts due and owing from Appleseed Events to Client under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Client to Appleseed Events under this Agreement.
    5. If Client defaults in payment, Client will be liable for all collection costs incurred by Appleseed Events including, without limitation, attorneys’ and collection agency fees, and all related disbursements.
    6. If Client does not pay when payment is due, past due amounts are subject to service charges of one and a half percent (1 ½%) per month or the maximum percentage rate permitted by law, whichever is less.  
  9. Cancellation.  
    1. Client may cancel its order for Goods and/or Services, but only if notice is provided by Client in writing and Appleseed Events agrees to such cancellation in writing and only after Client pays reasonable charges for expenses already incurred and commitments made by Appleseed Events in connection with the placement of such order(s).
    2. Cancellations made less than 21 days in advance of date of event, shipment, or delivery require payment in full for Goods and Services as ordered.
    3. Retainers and planning fees are non-refundable.
    4. Appleseed Events may cancel in whole or in part any order for Goods or Services under the Agreement at any time.
  10. Disclaimer of Warranties.
    1. Appleseed Events shall use commercially reasonable efforts to ensure the suitability and conformance of the Goods and Services.  Appleseed Events warrants that the Services will be performed in a professional and workman-like manner.
    2. APPLESEED EVENTS HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING, WITHOUT LIMITATION,  ANY WARRANTY OF MERCHANTABILITY, ANY WARRANY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS.  Appleseed Events shall, however, if given prompt written notice by Client of any claim of alleged patent, trademark or copyright infringement with respect to any Goods use its reasonable efforts to secure for Client such indemnity rights as the manufacturer may offer with respect to such Goods.
  11. Exclusive Remedy.
    1. Client’s EXCLUSIVE remedy against Appleseed Events for any claim for, or arising out of, any defect in a Good tendered to Client is the repair or replacement of the Good, or alternatively, at Appleseed Events sole election, a refund of the purchase price of the Good.
    2. Client’s EXCLUSIVE remedy against Appleseed Events arising out of, or in connection with, any Service provided hereunder is the re-performance of that Service or, at Appleseed Events sole election, a refund of the purchase price of the Service.
    3. Client must provide notice and evidence of a defect in a Good or any Service in writing with photos clearly depicting such defect.
    4. These remedies only will only be available to Client for 30-days after the Good is tendered or Service is provided to Client, and Appleseed Events obligations under this Section will be void unless Client provides Appleseed Events with notice of the defect in the Good or Service within 48 hours of discovery of the defect.
  12. Limitation of Liability.  NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL: (A) APPLESEED EVENTS BE LIABLE TO CLIENT FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR COST OF REPLACEMENT GOODS, OR ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT, THE GOODS OR THE SERVICES (EVEN IF APPLESEED EVENTS IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES); AND (B) APPLESEED EVENTS TOTAL LIABILITY RELATED TO ANY GOOD OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOOD OR SERVICE.
  13. Indemnification.   Client will indemnify, defend and hold harmless Appleseed Events, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement, the Goods, or the Services (including, without limitation, Losses arising in connection with the performance of Services on Client’s premises by Appleseed Events employees, representatives, agents, or subcontractors), regardless of whether such Losses are suffered directly by Client or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Appleseed Events or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Client need not indemnify Appleseed Events for Appleseed Events obligation, if any, to Client under the remedies described herein.  For the avoidance of doubt and without limitation, this indemnification obligation requires Client to pay any judgments against Appleseed Events or any other indemnified party resulting from any Claim, any court costs of Appleseed Events or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Appleseed Events or any other indemnified party in Appleseed Events defense of any Claim.  Appleseed Events will have the sole and exclusive right to conduct the defense of any Claim at Client’s sole and exclusive cost and expense.  Client’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Appleseed Events, Client or any third party.
  14. Insurance. During the term of this Agreement and for a period of 1 year after the date of the Event, Client shall, at its own expense, maintain and carry insurance, in full force and effect that includes, but is not limited to, commercial general liability, and other applicable liability policies, each in a sum no less than $5 Million per occurrence with financially sound and reputable insurers. Upon Appleseed Events’ request, Client shall provide Appleseed Events with certificates of insurance from Client’s insurer(s) evidencing the insurance coverage specified. The certificates of insurance shall name Appleseed Events as an additional insured. Client shall provide Appleseed Events with 60 days’ advance written notice in the event of a cancellation or material change in any Client’s insurance policy.  The Parties shall assess and adjust insurance needs and requirements every 6 months or as frequently as the Parties agree.
  15. Product Suitability.  Goods sold by Appleseed Events are designed to meet stated U.S. safety standards and regulations.  Because local safety standards and regulations may vary significantly, Appleseed Events cannot guarantee that the Goods meet all applicable requirements in each locality.  Client assumes responsibility for compliance with such safety standards and regulations in the localities in which the Goods will be shipped, delivered, and used.  Before purchase and use of any Goods, Client should review the national and local codes and regulations, and verify that the use of the Goods will comply with them.
  16. Ownership.  Appleseed Events shall have and retain all right, title, and interest in and to any and all trade secrets, methodologies, techniques, designs, molds, tools, samples, systems, know-how, expertise and other proprietary information that it may use pursuant to or in connection with any Services, and Client shall not obtain a license to, or any other property rights in, any such Appleseed Events property pursuant to or in connection with this Agreement.  
  17. Laws.  Client hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Goods and Services.  For purposes hereof, “Laws” means any national, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies or guidances having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
  18. Interpretation of the Agreement.  None of Appleseed Events’ or Client’s members, shareholders, directors, officers, partners, managers, employees, agents or representatives have any authority to orally modify or alter in any way the terms and conditions of the Agreement.  The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Appleseed Events or by language included on the Statement of Work, Proposal and/or invoice.  Regardless of how many times Client purchases, or has purchased, goods and services from Appleseed Events by whatever means, each time Client accepts the Agreement, Client and Appleseed Events enter into a separate agreement that will be interpreted without reference to any other agreement between Client and Appleseed Events, or what Client may claim to be a course of dealing or course of performance that has arisen between Client and Appleseed Events.  No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain or serve to interpret any of the terms, conditions and limitations of the Agreement.  The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Goods and Services hereunder, (except for any contemporaneous writing agreed to in writing by Appleseed Events expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters.  Failure by Appleseed Events to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Appleseed Events to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Client’s default under the Agreement will not constitute a waiver of that right or any other rights.
  19. Force Majeure.  Appleseed Events will not be liable for its failure to perform under the Agreement (including, without limitation, the failure to deliver any Goods or perform any Services) due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, severe weather, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond Appleseed Events reasonable control, including, without limitation, any delay caused by Client (each, a “Force Majeure Event”).  If any Force Majeure Event prevents Appleseed Events performance of any of its obligations under the Agreement, Appleseed Events will have the right to (a) change, terminate or cancel the Agreement, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Goods or Services deliverable during that period.  If Appleseed Events is unable to supply the total demands for any Goods or Services to be delivered under the Agreement due to a Force Majeure Event, Appleseed Events will have the right to allocate its available supply among its customers in whatever manner Appleseed Events deems to be fair and equitable.  In no event will Appleseed Events be obligated to purchase services or materials from other than its regular sources of supply in order to enable it to supply Goods or Services to Client under the Agreement.  No change, cancellation or proration by Appleseed Events will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
  20. Electronic Consent.  Client acknowledges that Clients electronic submissions constitute Client’s agreement and intent to be bound by this Agreements.  Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”), the Pennsylvania Electronic Transactions Act, or other similar statutes, CLIENT HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH APPLESEED EVENTS. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Client may obtain a copy of this Agreement by printing it now at no additional cost to Client or by contacting Appleseed Events.
  21. Choice of Law; Choice of Venue.  The negotiation, execution, performance, termination, interpretation and construction of the Agreement will be governed by the law of the Commonwealth of Pennsylvania, except for Pennsylvania’s choice of law rules.  If either Appleseed Events or Client brings a lawsuit or any other action arising out of the Agreement against the other party, such party must file its lawsuit or other action in a state or federal court located in Pittsburgh, Pennsylvania.  Appleseed Events and Client expressly submit to the exclusive jurisdiction of those courts and consent to venue in those courts, and Appleseed Events and Client consent to extra-territorial service of process on Appleseed Events and Client.  In the event of litigation pertaining to any matter covered by the Agreement, each of Appleseed Events and Client hereby agree to waive any right that it may have to a jury trial of any or all issues that may be raised in such litigation.  Nothing contained in the Agreement will be construed to limit or waive any rights of Appleseed Events under applicable United States federal, state, or local laws.  Any provision of the Agreement held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof.
  22. Binding Authority.  Any director, officer, employee, representative, or agent of Client signing or otherwise entering into this Agreement hereby represents and warrants that he or she is duly authorized to execute and enter into this Agreement on behalf of Client.