EmeraldCon, LLCNBA Con Barter Agreement  
Terms and Conditions 

1. Defined Terms: “Agreement” means, collectively, (i) the NBA Con Barter Agreement for the Event and any ancillary documents associated therewith and (ii) these Terms and Conditions for the NBA Con Barter Agreement. In the event of any conflict among the terms of such documents, the terms of these Terms and Conditions shall prevail. “Event” means the event or events organized by EmeraldCon, LLC (“Emerald”) and identified in the NBA Con Barter Agreement. “Facility” means the venue where the Event is held. “Company” means the company or person entering into this Agreement, as listed on the NBA Con Barter Agreement. “NBA” means the National Basketball Association and its teams. “NBAP” means NBA Properties, Inc. “NBPA” means National Basketball Players’ Association. “NBA Parties” means, collectively, NBA, NBAP and NBPA. 

2. Agreement Acceptance, Eligibility, and Payment: This Agreement becomes binding and effective only when the NBA Con Barter Agreement has been signed by Company and accepted in writing by a duly authorized representative of Emerald. Emerald may refuse acceptance of any NBA Con Barter Agreement for any or no reason. Emerald, and its respective successors and assigns, shall be authorized to rely upon the signature of Company on NBA Con Barter Agreement which is delivered by facsimile, PDF, or other electronic means as constituting a duly authorized, irrevocable, actual, current delivery of the NBA Con Barter Agreement  with original ink signatures of each person and entity. 

3. Term: This Agreement commences effective the date it is accepted by Emerald and shall terminate upon the conclusion of the Event, unless earlier terminated as stated herein. 

4. Termination by Emerald: Notwithstanding anything herein to the contrary, Emerald may (a) terminate this Agreement at any time, including during the Event, for any reason without a refund or liability to Company of any sort, and (b) without limiting any other remedy Emerald may otherwise have, terminate this Agreement: (i) upon any breach or threatened breach of this Agreement by Company; (ii) if Emerald, in its sole discretion, believes the Company’s content is inappropriate for any reason, including, but not limited to, if Emerald reasonably believes that Company’s content infringes the proprietary rights of a third party, (iii) if Company, in Emerald’s opinion, behaves poorly, disrupts the Event or detracts from the general character of the Event or interferes in any way with another Event participant; (v) if Company uses the NBA Con name or logo or any other names, logos, or other proprietary designations or any other intellectual property, materials,  or proprietary rights of the NBA Parties (collectively, “NBA IP”) without the NBAP’s and Emerald’s prior written consent or otherwise in violation of any brand guidelines concerning the NBAP IP (“Brand Guidelines”); (vi) if Company has a direct or indirect partnership or other agreement with the NBA Parties, and such agreement expires or is terminated for any reason; or (vii) if Company becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code, or any similar statute.  

5. Termination by Company: Company may terminate this Agreement without liability to Emerald (i) upon any breach or threatened breach of this Agreement by Emerald that is not cured within 30 days following Company giving written notice to Emerald of such breach or threatened breach, or (ii) if Emerald becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code, or any similar statute.  

6. Effect of Termination: Upon any termination of this Agreement, Company shall immediately take down all NBA IP, including, but not limited to any NBA trademarks and content from any signage and website owned or controlled by Company. This section shall survive any termination of this Agreement. 

6. Cancellation of Event: Emerald, in its sole discretion and without incurring any liability, may cancel, postpone, rename or relocate the Event or change the Event dates. 

7. Assumption of Risks; Release: Company expressly assumes all risks associated with, resulting from or arising in connection with Company’s participation or presence at the Event, including, without limitation, all risks of theft, loss, harm, damage or injury to or of any person (including death), property, business or profits of Company. Company has sole responsibility for its property and any theft, damage or other loss to that property (whether or not stored in any courtesy storage area), including any subrogation claims by its insurer. Neither Emerald, the NBA Parties nor Facility accepts any responsibility, nor is a bailment created, for property delivered by or to Company. None of the Indemnitees (as defined below) shall be liable for, and Company hereby releases all of them from, and covenants not to sue any of them with respect to, any and all risks, losses, damages and liabilities, whether described in this Agreement or not, unless due to the gross negligence or willful misconduct of Emerald, the NBA Parties or Facility. Company understands and agrees that the Event stages “Rain or Shine” and Company receives no allowance of any sort in the event of bad weather. Emerald makes no representations or warranties, express or implied, regarding the success of the Event, including but not limited to the condition of the Facility, noise levels or other inconveniences or disruptions in or around the Facility, the number of persons who will attend the Event, or any other matter, except as explicitly set forth herein. Company hereby accepts the Facility AS IS, with all faults, and without any implied warranties of merchantability or fitness for a particular purpose. Company will comply, and will cause its personnel to comply, with Emerald’s safety, security, health, and other regulations and policies as they may be updated from time to time by Emerald in its sole discretion. To the extent Company’s personnel are on site at an Event venue or facility, such personnel may be required to execute a release and waiver as provided by Emerald, and Company shall require such personnel to execute that release and waiver if so required by Emerald. If such personnel fail to execute that release and waiver, they may not be permitted at entry to the Facility. This section shall survive any termination of this Agreement. 

8. Indemnification: To the fullest extent permitted by law, Company shall indemnify, defend (with legal counsel satisfactory to Emerald) and hold Emerald, the NBA Parties and Facility, and any of their respective affiliates or directors, officers, employees, shareholders, agents or representatives, owners, governors, officials, successors and assigns (the “Indemnitees”) harmless from and against any and all claims, demands, suits, liabilities, damages, losses, costs, fees, judgments (including reasonable attorneys’ fees and collection costs) and expenses of any kind or nature, which result from or arise out of or in connection with: (i) Company’s participation or presence in or at the Event and its activities in connection with the Event; (ii) any breach by Company of any agreements, covenants, promises or other obligations under this Agreement or any other contract, arrangement or agreement related to the Event, including the Brand Guidelines; (iii) any matter for which Company is otherwise responsible under the terms of this Agreement or any other contract, arrangement or agreement related to the Event; (iv) any violation or infringement (or claim of violation or infringement) by Company of any law or ordinance or of the rights of any party under any patent, copyright, trademark, trade secret or other proprietary right of any third party (including NBAP IP); (v) any libel, slander, defamation or similar claims arising out of or relating to Company’s actions; (vi) Company’s acts or omissions that result in damage, harm or injury (including death) to anyone or their property at the Event; and (vii) any and all loss of or damage to property or the business or profits of Company. This section shall survive any termination of this Agreement. 

9. Insurance: Company shall, at its own expense, secure and maintain throughout the term of this Agreement, including move-in and move-out days, the following insurance with responsible third party insurance carriers (with an A.M. Best rating of at least A-/VII for companies insured with a domestic insurance carrier authorized to do business in the state where the Event is located, and with a carrier approved in advance by Emerald for companies insured with an international insurance carrier): (i) Workers’ compensation insurance in an amount as required by applicable law; (ii) Comprehensive general liability insurance with limits not less than $1,000,000 per occurrence, $2,000,000 in the aggregate, combined single limit for broad form bodily injury and property damage, including coverage for personal injury, contractual liability coverage with respect to this Agreement, and operation of mobile equipment, premises, products/completed operations liability coverage, liquor liability (if applicable), and personal/advertising injury liability coverage; (iii) Automobile liability insurance with limits not less than $1,000,000 per occurrence, combined single limit for bodily injury and property damage, including coverage for owned, non-owned and hired vehicles, including loading and unloading operators (if applicable); (iv) Umbrella Liability Insurance, with limits of at least $1,000,000 per occurrence and in the aggregate; and (v) Employers Liability/Stop Gap Liability Insurance with limits of at least $500,000 for each occurrence. The aforementioned insurance policies shall (a) name as additional insureds the Indemnitees and (b) be primary to any other valid and collectible insurance of Sponsor and/or Emerald or Facility and shall be written on an occurrence basis. Claims-made policies are not acceptable and do not constitute compliance with Company’s obligations under this paragraph. The coverage provided to the additional insureds shall not be limited to the negligence of Company.  The insurance carrier shall have no right of recovery or subrogation against any additional insured.  Copies of certificates of insurance, satisfactory to Emerald, shall be furnished to Emerald 30 days before the Event. Certified copies of the certificates of insurance shall provide that if any of the above-described policies are cancelled before the expiration date thereof, notice will be delivered to Emerald in accordance with policy provisions. 

10. Limitation of Liability: To the fullest extent permitted by law, under no circumstances shall the Indemnitees be liable for any lost profits or any indirect or consequential damages, including, but not limited to, incidental, special, or punitive damages whatsoever, whether or not such damages were reasonably foreseeable or whether or not a party has been advised of the possibility thereof. To the fullest extent permitted by law, in no event shall Emerald’s maximum liability to Sponsor, under any circumstance, and regardless of the form of action, exceed the value of the goods or services provided by Emerald to Company in connection with this Agreement. The NBA Parties will have no liability to Company under this Agreement. This section shall survive any termination of this Agreement. 

11. Compliance with Laws; Taxes and Licenses: Company agrees to abide by and observe all applicable federal, state and local laws, codes, ordinances, rules and regulations, and all rules and regulations of the Facility (including any union labor work rules), the Event, and the NBA Parties, including any health and safety rules and regulations. Company shall be solely responsible for obtaining all licenses, permits or approvals under federal, state or local laws applicable to its activities at the Event and otherwise in connection with its activities under this Agreement. Company shall be solely responsible for obtaining any necessary tax identification numbers and permits and for paying all taxes, license fees, use fees, royalties or other fees, charges, levies or penalties that become due to any governmental authority in connection its activities hereunder (and will provides copies thereof to Emerald upon Emerald’s request). If advised by Emerald to ship products or materials to a specific location, Company will do so and will not permit the delivery of products or materials to the Facility. 

12. Licenses; Communications: Company grants to Emerald and the NBA Parties a fully paid, perpetual, non-exclusive license to use, display and reproduce the name, trade names, product names, and other proprietary property of Company as necessary to fulfill Emerald’s obligations and exercise Emerald’s rights under this Agreement and in any directory (print, electronic or other media) or participating organizations at the Event, and to use those items in Emerald’s and the NBA Parties’ promotional materials. Neither Emerald nor the NBA Parties shall  be liable for any errors in any listings or descriptions or for omitting Company from any directory or other lists or materials. Company understands and agrees that Emerald, the NBAP and representatives from various media may visit the Event and televise, videotape, photograph, write about or otherwise record the Event (including preparations therefore, products used in the connection with the Event and any participants at the Event) (“Recordings”) and use any such Recordings at any time for commercial, promotional or any other purpose without compensation. Company authorizes Emerald, the NBAP and such media representatives, including their licensees and assigns (collectively, the “Authorized Persons”) to make such Recordings and to create, reproduce, distribute, create derivative works, publicly perform, publicly display and otherwise use and permit others to use in any manner, the likeness of Company and its representatives (collectively, “Company Representatives”) appearing in any such Recordings, and all materials created by or on behalf of the Authorized Persons that incorporate the Recordings (or any portion thereof) on a perpetual basis throughout the world and in all forms, formats and media (which now or hereafter may exist) without any further approval required. Company, on behalf of itself and the Company  Representatives, hereby (a) waives all rights to review or approve the Authorized Persons’ use of the Recordings and agrees that the Authorized Persons may exploit, edit or otherwise modify the Recordings, and combine the Recordings with materials furnished or created by others, without further approval or liability and (b) releases the Authorized Persons from any and all claims and demands arising out of the use of the Recordings, including claims for defamation, infringement of moral rights, copyright or trademark, violation of rights of privacy or publicity, intrusion, false light, public disclosure of private facts, physical or emotional injury or distress, or any similar claim or cause of action, in tort, contract or otherwise, now or hereafter known in any jurisdiction throughout the world. Company acknowledges that it is not authorized to telecast, radio broadcast or otherwise distribute accounts and descriptions of the Event, and the use of cameras and video camera on the exhibit floor is strictly prohibited without the prior written consent of Emerald. By entering into this Agreement and providing contact information, including a telephone number, Company and its affiliates explicitly consent (to the extent such consent is required by law) to being contacted by or on behalf of Emerald or the NBA Parties for any purposes, including but not limited to, sales, marketing, promotional offers, and customer care, and by any means, including by using pre-recorded voices or an automated dialing or texting system, regardless of whether the phone number appears on the National Do-Not-Call Registry (or state equivalent).  Company agrees to participate in any reasonable surveys and assessments with respect to the Event conduct by or behalf of Emerald. For clarity, Company does not need to enter into this Agreement to purchase any goods or services from Emerald.  

13.  Representations and Warranties. Company represents and warrants that, (a) any goods or services to be provided to Emerald and the NBA Parties by Company (including, but not limited to, materials or elements created or produced by Company) or otherwise distributed at an Event do not and will not violate or infringe any right of any person or entity; (b) Company will perform its activities related to each Event in a professional and diligent manner and will avoid any conflicts of interest in connection therewith; (c) none of by Company or its affiliates is subject to any investigation or sanctions initiated, conducted or enacted by any government or regulatory entity that would reasonably be expected to interfere with or limit its ability to participate in an Event or perform its obligations as set forth herein; and (d) neither it nor  any of its affiliates (i) is owned, controlled or managed by, and does not employ (A) any employee of an NBA Party, or (B) an immediate family member (defined as a spouse, romantic partner, or blood relative) of any employee of an NBA Party and (ii) has offered or provided and will not offer or provide a financial or other personal benefit to an employee of NBA Party in connection with this Agreement.  EMERALD IS NOT MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES IT IS PROVIDING IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY BE OTHERWISE IMPLIED FROM ANY COURSE OF DEALING, PERFORMANCE OR USAGE. 

14.  Intellectual Property.  If Company is approved by Emerald to develop, use or manufacture any materials, content, goods or services bearing any NBA IP, Sponsor must comply with the Brand Guidelines and all other directions or guidelines provided by Emerald. For clarity, all uses of the NBA IP must be approved in writing in advance. All goodwill arising out of Company’s use of NBA IP inures to the benefit of NBAP. Company hereby agrees that any and all creative materials, plans, specifications and other materials, data or documents prepared, purchased or furnished by or on behalf of Company specifically in connection with the Event (excluding any materials that Company may incorporate therein that were developed, prepared, or purchased other than specifically in connection with the Event or that are otherwise owned by third parties) (collectively, the “Properties”) are, as between the parties, the sole and exclusive property of Emerald and, as between the parties, Emerald shall own all rights, titles and interests in and to such Properties and to each part thereof.  Emerald and its designees shall have the worldwide right in perpetuity to use and exploit all or any part of the Properties, in any format or version, by any means and in any media, whether or not used therein, whether now known or hereafter developed, without the necessity of further consideration (and, for clarity, with respect to any materials that Company incorporates within Properties and that were developed, prepared, or purchased other than specifically in connection with the Events or that are otherwise owned by third parties, Company hereby licenses all such materials to Emerald and its designees for worldwide, perpetual use and re-use in its and their sole discretion, in each case, subject to any restrictions imposed by any licensors of which Company notifies Emerald in writing).  The Properties shall be deemed “works made for hire” as defined under the U.S. Copyright Act of 1976, and for all other purposes.  To the extent Properties are not a work made for hire, Company hereby grants, transfers and assigns, and shall cause its personnel to grant, transfer and assign, to Emerald or its designee all rights, titles, interests and other incidents of ownership, including copyright, in and to such Properties, and this Agreement shall be deemed an agreement to transfer all such rights from Company to Emerald. Any NBAP IP provided or otherwise made available to Company by or on behalf of Emerald hereunder shall be used by Company solely for the purposes of performing its obligations under the Agreement, and solely in accordance with the terms governing such NBAP IP as established by Emerald and NBAP. Company agrees that during and after the term of the Agreement, to the extent Sponsor has been authorized to use any NBA IP, Company shall cease using (and, as applicable, take down) any NBA IP and other information about the Events promptly within 24 hours after a request by Emerald or NBAP.  Except as otherwise agreed to by the parties in writing, Company is responsible for the proper clearance of any thirdparty photos, footage, music or other content used by or on behalf of Company in connection with the Agreement.  

15. Character of Displays; Use of Aisles and Common Areas; Safety: Unless approved in advance by Emerald in writing, distribution of samples, printed matter of any kind, and any promotional material is restricted to the areas specifically designated by Emerald where Company may distribute such samples, matter, or materials and is subject to the Brand Guidelines. Strolling entertainment or moving advertisements outside of Company’s designated areas are prohibited. Company shall display content in a tasteful manner. The Event aisles, passageways and overhead spaces remain strictly under the control of Emerald and no signs, decorations, banners, advertising material or special exhibits will be permitted in such areas except by written permission of Emerald. Balloons and stickers are prohibited in the Facility; handouts with gummed backing that adhere or cause adhesion are considered stickers. No weapons or drones are permitted at the Event. No hazardous materials (e.g. open flames) are allowed except as permitted by/consented to by Emerald in writing and in designated areas. Violators may be reported to local authorities.  

16. Outside Exhibits/Hospitality Suites: Company is prohibited, without Emerald’s prior written approval, from displaying products, services, advertising material and other content in areas outside the areas specifically designated by Emerald where Company may display such products, services, material and content, such as, but not limited to, parking lots, hotel lobbies, lounges, corridors, sleeping rooms, etc. Company is also prohibited from conducting unauthorized facility tours. Company shall not operate hospitality suites during hours in which the Event is open or when any Emerald-sponsored or NBA Party-sponsored activities are being held. Company is prohibited from hosting hospitality functions during official Event hours. All requests for a hospitality suite or public function space must be made through Emerald. 

17. Admission Badges: Admission to the Event is permitted only with official registration badges. Badges must be worn at all times, including during set-up and teardown. Badges are the property of Emerald and are non-transferable. Company badges will be issued in the quantity provided on the NBA Con Barter Agreement only. Company badges may not be ordered for or transferred to buyers or non-employees. Lost badges may incur a reprinting fee.  

18. Freight Shipment: If applicable, Company should use the shipping labels provided by Emerald for the Event to ensure proper shipment and identification of freight to the Event. 

19. Governing Law: This Agreement is governed by and construed in accordance with the laws of the State of New York as applied to contracts entered into and to be performed within New York. Company hereby submits to the jurisdiction of the federal and state courts located in New York County, NY, which shall constitute the exclusive venue for the resolution of any and all disputes involving the parties or arising out of, connected with or related to this Agreement or the breach of any provision of this Agreement. Company waives all objections to venue in the New York courts and all inconvenient forum objections, and any right to assert lack of personal jurisdiction. This section shall survive any termination of this Agreement. 

20. Miscellaneous: This Agreement does not create any joint venture, partnership, agency or employment relationship between the parties. Emerald and Company are independent contractors with respect to one another under the terms of this Agreement. Neither party shall have the authority to legally bind the other party to any contract, proposal or commitment or to incur any debt or create any liability on behalf of the other.  Company shall not assign or otherwise transfer this Agreement or any right or obligation hereunder to any other party without the prior written consent of Emerald; any attempted assignment in violation of this provision is null and void. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of Emerald and a signed waiver shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of Emerald to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.  Failure or delay by Emerald to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement represents the entire agreement between Emerald and Company relating to the subject matter hereof and supersedes any prior written or oral understandings, agreements or representations by or between Emerald and Company relating to the subject matter hereof. Any amendment to this Agreement must be in writing and signed by an authorized representative of Emerald. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the parties as of the Effective Date. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. Company represents and warrants that the party executing this Agreement on behalf of Company is duly authorized to act on behalf of Company and to execute this Agreement and legally bind Company to the terms contained herein. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email of scanned copies or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. The parties intend this statement of their agreement to constitute the final, complete, exclusive and fully integrated statement of the parties’ agreement. This section shall survive any termination of this Agreement.