Applicability

These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by ABS CONSULTANTS, LLC dba Next Generation Expo (“NGE”) to pursuant to an estimate, order confirmation or similar document (the “Order Document”). The party receiving such services is identified in the applicable Order Document and is referred to in these Terms as the “Customer.” The Order Document and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Document, these Terms shall govern unless the Order Document expressly states that the terms and conditions of the Order Document shall control. These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

Services

NGE shall provide the services to Customer as described in the Order Document (the “Services”) in accordance with these Terms.

Customer’s Obligations

Customer shall:

• Provide such Customer materials or information as NGE may request or as may be needed for NGE to perform the Services, ensure that such Customer materials or information are complete and accurate in all respects, and otherwise generally cooperate with NGE in all matters relating to the Services;
• Respond promptly to any NGE request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for NGE to perform Services in accordance with the requirements of this Agreement; and
• Ensure that all materials are delivered where and when agreed upon (“Targets”).

If NGE’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, NGE shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer. Without limiting the foregoing, if Customer does not meet the Targets, Customer shall nevertheless be liable for any labor and others costs incurred by NGE during such delay.

Fees and Payment; Interest on Late Payments; Taxes.

• In consideration of the provision of the Services by NGE and the rights granted to Customer under this Agreement, Customer shall pay the fees, costs and expenses including, without limitation, the cost of labor and materials, as further described in the Order Document. Notwithstanding the foregoing, amounts set for in the Order Documents are estimates only. While NGE shall use good faith efforts to estimate how long it will take to perform the Services and how many workers it will take to do so, NGE does not guarantee such estimates and actual amounts owed will be based on services provided.
• Customer shall pay any deposit specified in the Order Document or otherwise requested by NGE prior to NGE performing the Services or taking any actions necessary to perform the Services. Until such deposit is paid, NGE shall have no obligation to perform the Services.
• Unless otherwise specifically stated in the Order Document, Customer shall pay all invoiced amounts due to NGE (other than any deposit required under Section 4(b) above) within 30 days from the date of NGE’s invoice. Customer shall make all payments hereunder in US dollars. In the event payments are not received by NGE when due, NGE may charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid.
• Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.

Warranty; Remedies; Disclaimer of Warranties.

• NGE represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. In the event of a breach of such warranty, NGE shall, in its sole discretion, either (i) repair or re-perform such Services (or the defective portion); or (ii) credit or refund the price of such Services or portion thereof. SUCH REMEDIES SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND NGE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 5(a).
• EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 5(a), NGE MAKES NO (AND HEREBY DISCLAIMS ANY) WARRANTY WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

Limitation of Liability.

• IN NO EVENT SHALL NGE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
• IN NO EVENT SHALL NGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID TO NGE UNDER THE APPLICABLE ORDER DOCUMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM

Termination.

• NGE may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Upon such termination Customer shall pay to NGE any amounts owed for Services performed plus the amount of any nonrefundable or other unrecoverable costs already incurred by NGE in connection with the Services.
• Customer may terminate this Agreement at any time upon written notice to NGE; provided, however, Customer shall be responsible for paying to NGE any nonrefundable or other unrecoverable costs already incurred or committed to by NGE in connection with the Services. In addition, in the event that Customer terminates this Agreement within 72 hours of the planned start date of the Services, Customer shall also pay to NGE 10% of the total fees set forth in the Order Document.
• Provisions of these Terms, which by their nature should apply beyond the term of the Agreement, will remain in force after any termination or expiration of this Agreement.

Amendment, Waiver and Severability.

Unless otherwise stated, this Agreement may not be amended or supplemented except by written instrument signed by the parties. No waiver of any default or breach of any agreement or provision herein contained shall be deemed a waiver of any other default or breach thereof or of any other agreement or provision herein contained. If any provision or portion of a provision of this Agreement is declared void and/or unenforceable, such provision or portion shall be deemed severed from this Agreement, which shall otherwise remain in full force and effect.

Governing Law, Jurisdiction and Venue.

This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado applicable to contracts to be performed solely within such state. The District Court of the City and County of Denver, State of Colorado, shall have exclusive jurisdiction, including in personam jurisdiction, and shall be the exclusive venue for any and all controversies and claims arising out of or relating to this Agreement.

Force Majeure

If NGE shall be unable to perform hereunder by reason of the occurrence of any contingency beyond its control, or if such performance has been made commercially impracticable for any reason, performance shall be excused and NGE shall not be liable therefore. Contingencies beyond NGE’s control include but are not limited to, acts of God, epidemics, pandemics, fires, floods, wars, civil commotion, sabotage, accidents, labor disputes or shortages, government order, law, or action, and inability to obtain material, equipment, employees or transportation.

Assignment.

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of NGE. Any purported assignment or delegation in violation of this Section is null and void.

Attorneys’ Fees and Costs.

In the event any suit or other action is commenced to construe or enforce any provision of the Agreement, the prevailing party shall be awarded reasonable attorneys’ fees and court costs, in addition to all other relief to which such party shall be entitled.

Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Document or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of delivery) or certified or registered mail (in each case, return receipt requested, postage prepaid).

Entire Agreement and Binding Effect.

The Agreement is the final integration of the agreement between the parties with respect to the matters covered by it and supersedes any prior understandings or agreements, oral or written, with respect thereto. The provisions of this Agreement shall inure to the benefit of, and be binding on, the parties and their successors, assigns, employees, legal representatives, heirs, distributees, and transferees.