This Agreement is made on the date in the Exhibition Booking Form.
Between
GaP Solutions Pty Ltd ABN 84 057 892 538 (GaP)
AND
the exhibitor entity named in the Exhibition Booking Form (Exhibitor);
together the Parties, and each a Party.
Background
A. GaP plans to hold the South Australian Food Bev, and Tech Trade Show 2022 (Trade Show) in which the Exhibitor plans to participate,
B. The Exhibitor has signed the Exhibition Booking Form in
acknowledgment that the terms contained in the Exhibition Booking Form, in the Prospectus and in this Agreement constitute a binding agreement between the Parties with regard to the Exhibitor’s
participation in the Trade Show.
1. Definitions and Interpretation
1.1 Defined Terms in this Agreement, unless the contrary
intention appears:
‘Agreement’ means this Agreement and the Exhibition Booking Form and the Trade Show Terms and Conditions to which they relate;
‘Benefits’ means the benefits for the Exhibitor outlined in the
Prospectus;
‘Contribution’ means all fees, charges and other, listed in the Exhibition Booking Form and payable by the Exhibitor;
‘Exhibitor’ means the person or entity as described in the Exhibition Booking Form.
‘Exhibition Booking Form’ means the application document to exhibit at the Trade Show detailing pricing, the Agreement and other Terms and Conditions signed and accepted by the Exhibitor and accepted and approved by GaP with the production of an invoice to the Exhibitor;
‘Indirect or Consequential Loss’ includes any loss of opportunity, profit, anticipated profit, business, business opportunities or revenue or any failure to realise anticipated savings;
‘Intellectual Property’ means all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including copyright, future copyright and analogous rights, inventions (including patents and innovation patents), registered and unregistered trademarks or name, registered and registrable designs, confidential information, trade secrets, technical data and know how, circuit layout rights, and all other protected rights of intellectual property defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation dated 14 July 1967 (as amended from time to time),
including any application or right to apply for registration of any of these rights and includes all Moral Rights of a Party’s Personnel which come into existence in producing the Materials;
‘Law’ means:
a) the common law of and all statutes of the Commonwealth and the State or Territory in which the Benefits are to be provided; and
b) all regulations, orders, rules, subordinate legislation, approvals, codes, standards and requirements of organisations enforceable under those Statutes;
‘Materials’ means all materials and information in any medium or form provided by the Exhibitor to GaP including materials and information intended for publication by GaP or for provision by GaP to Trade Show registrants and includes all materials and information in any medium or form provided by the Exhibitor directly to any person who attended, or registered to attend, the Trade Show;
‘Moral Rights’ means rights of integrity of authorship, rights of
attribution of authorship, rights not to have authorship falsely
attributed, and rights of a similar nature conferred by statute, that exist, or that may come to exist, anywhere in the world;
‘Personnel’ means:
a) employees, agents, consultants, suppliers and subcontractors of a Party; and
b) employees, agents, consultants, suppliers and subcontractors of those subcontractors;
‘Prospectus’ means the Exhibitor Prospectus relating to the Trade Show;
‘Related Body Corporate’ has the meaning given in section 9 of the Corporations Act 2001 (Cth); and
‘Site Organisation’ means the Royal Agricultural and Horticultural Society of SA Inc.
‘Trade Show’ means the South Australian Food Bev, and Tech Trade Show 2022 identified in the Prospectus;
1.2 Interpretation in this Agreement, unless the contrary intention appears:
a) headings are for ease of reference only and do not affect the meaning;
b) the singular includes the plural and vice versa;
c) a reference to a party, clause, schedule or annexure is to a Party, clause, schedule or annexure to this Agreement;
d) a reference to a person includes a company, partnership, joint venture, association, corporation, government, governmental or local authority or agency or owners corporation;
e) a reference to any statute, regulation, ordinance or by-law includes a variation to, consolidation of, replacement to and delegated legislation under that statute, and a reference to a statute includes regulations, proclamations, ordinances and by-laws issued in relation to the subject matter of that statute;
f) a reference to a day is a calendar day;
g) a reference to a Party in any agreement includes that Party’s
executors, administrators, successors and permitted assigns;
h) a reference to an agreement or contract includes any undertaking, deed, agreement or legally enforceable arrangement or understanding, whether or not in writing;
i) no provision of this Agreement will be construed adversely to a Party solely on the grounds that the Party was responsible for the preparation of this Agreement or that provision;
j) a reference to an agreement, including this Agreement, includes a reference to that agreement as novated, altered or replaced from time to time;
k) the meaning of general words is not limited by the word “including”;
l) a reference to currency, $, AUD or A$ is a reference to the currency of the Commonwealth of Australia; and;
m) if there is any inconsistency between the Exhibition Booking Form or the Prospectus and this Agreement, the provisions of this Agreement take precedence over those of the Exhibition Booking Form or Prospectus, to the extent of the inconsistency
2. Trade Show Benefits and Payments
2.1 Trade Show Benefits
Subject to the receipt of the payment in full by GaP of the Contribution, GaP will facilitate the provision of the Benefits to the Exhibitor.
2.2 Exhibitor’s obligations and commitments
a) The Exhibitor will pay the Contribution together with all applicable GST to
i) GaP, if invoiced by GaP; or
ii) Food SA, if supplied the Exhibition Booking Form and invoiced by Food SA.
b) The Exhibitor agrees to and will abide by this Agreement and any
additional Terms and Conditions detailed in the Exhibition Booking Form;
c) The Exhibitor will undertake any inductions, complete any forms and comply with any further requirements of the Site Organisation;
d) The Exhibitor will ensure that all registrants nominated by the
Exhibitor to attend the Trade Show will attend all sessions, social
functions and networking sessions for which they are nominated;
e) The Exhibitor will ensure that any exhibition of the Exhibitor
identified in the Application is attended by an adequate number of suitably experienced Exhibitor’s Personnel throughout the Trade Show open hours;
f) All Exhibitor’s Personnel attending the Trade Show will wear their own Trade Show name tags at all times and will not transfer name tags to any other person at any time;
g) The Exhibitor’s exhibition stand and area and all Exhibitor’s Personnel will comply with all Laws at all times;
h) The Exhibitor will hold relevant current valid insurances with a
reputable and solvent insurer at all times during the period of this Agreement and, at a minimum, for the categories of risks and in the amounts, if any, stated in the Prospectus;
i) The Exhibitor will erect and dismantle the Exhibitor’s exhibition in
accordance with all applicable Laws and in the manner and in
accordance with the guidelines, if any, specified in the Prospectus;
j) The Exhibitor will not conduct any competition or promotion with or offer prizes or incentives to registrants at the Trade Show without the prior written approval of GaP and then only in accordance with
applicable Laws; and
k) The Exhibitor will not conduct any social or networking functions or workshops for Trade Show registrants, nor collect any registrant data during the Trade Show without the prior written approval of GaP and then only in accordance with applicable Laws.
3. Warranty and Indemnity
3.1 Warranty by Exhibitor
The Exhibitor, warrants to GaP;
a) all information contained in or to be reasonably inferred from the Materials is accurate in every respect, is not misleading or deceptive in any respect and otherwise complies with all applicable Laws;
b) all Intellectual Property in the Materials is owned by or licenced to the Exhibitor and the Exhibitor is legally entitled to provide that information to GaP for distribution by GaP in relation to and at the Trade Show;
c) The Exhibitor and all its Personnel engaged in the Trade Show will, at all times before termination of this Agreement, comply with all
applicable Laws, and;
d) the Materials do not contain any confidential information of the Exhibitor or of any other person.
3.2 Indemnity by the Exhibitor
The Exhibitor indemnifies GaP against all costs, damages or other
incurred by GaP as a result of any negligence or breach of this
agreement by the Exhibitor or its subcontractors.
4. Co-operation, Approvals and Other Considerations
4.1 Co-operation
a) Each Party will endeavour to ensure that all its Personnel and all third-party personnel and contractors who are engaged in relation to the Trade Show, liaise, co-operate and confer with the Parties as
necessary to enable GaP to provide the Benefits.
b) Each Party will endeavour to carefully co-ordinate and integrate its activities with the activities carried out by the other Party and its Personnel and with the activities of all other Trade Show Exhibitors and registrants and of all third party personnel and contractors engaged in relation to the Trade Show.
4.2 Necessary Approvals
Each Party will use all reasonable endeavours to obtain all necessary approvals, authorities, licences and permits which are required from governmental, municipal or other responsible authorities, or otherwise required at Law, to enable the Benefits to be provided at the Trade Show.
4.3 Intellectual Property
Subject to any express written licence, this Agreement does not:
a) Licence, transfer or assign any interest in either Party’s Intellectual Property to the other Party or to any other person; or
b) Otherwise affect the ownership of the other Party’s Intellectual Property rights.
4.4 Trade Marks
a) The Exhibitor licences GaP to use all of the Exhibitor’s registered and unregistered trade marks, logos, symbols and other identifications for any purpose in relation to the Trade Show, including the distribution of the Materials at the Trade Show, without the Exhibitor’s further approval or consent.
b) The Exhibitor will not use any of GaP’s registered or unregistered trade marks, logos, symbols or other identifications for any purpose without GaP’s prior written consent which, in GaP’s absolute discretion, may be withheld or granted subject to any conditions.
4.5 Services from Others
The Exhibitor may, at its own expense, obtain advice, services or
assistance from others in connection with the Benefits but will ensure that all others assisting in that regard comply with all obligations
imposed on the Exhibitor under this Agreement.
5. Assignment and Subcontracting
5.1 Assignment
a) Subject to clause 5.1(b), the Exhibitor may not assign any part of this Agreement without the prior written consent of GaP.
b) The Exhibitor may assign this Agreement to its Related Body Corporate without GaP’s consent but will notify GaP of the assignment before the change takes effect and meet GaP’s associated costs of transferring the Benefits as a consequence of the assignment.
5.2 Subcontracting
a) Each Party will:
i) co-ordinate the work of all its subcontractors;
ii) provide and direct all necessary Personnel to administer, supervise, inspect, co-ordinate and control its subcontractors; and
iii) at all times co-ordinate its activities and ensure execution and completion of the work is carried out by its subcontractors in a proper and workmanlike manner according to the relevant requirements of each activity.
6. Payments
6.1 Shared Expenses and Set Off
Any payments by one Party to the other Party, contemplated by this Agreement as shared expenses will be made upon presentation of a tax invoice in accordance with applicable GST Law by the other Party.
6.2 Set Off
Neither may deduct from any amount otherwise payable to the other Party any amount due or alleged to be due from the other Party in connection with the Trade Show.
7. GaP’s Liability
7.1 Exclusion from liability
To the fullest extent permitted by law, GaP is not liable to the Exhibitor in respect of GaP’s acts or omissions in any way related to the Trade Show other than for breach by GaP of its obligations under this Agreement.
7.2 No warranty by GaP
The Exhibitor acknowledges that GaP has given the Exhibitor no express or implied warranties whatsoever (including as to fitness for purpose of the Benefits, tax deductibility of the Contribution or expenses associated with attendance at the Trade Show, or otherwise) in relation to the Benefits or the Trade Show.
7.3 Exclusion of Statutory Warranties
To the fullest extent permitted by law, GaP hereby excludes all warranties implied by law that can be excluded and GaP hereby limits the remedies for any warranties implied by law that cannot be excluded to the minimum remedies required by law in relation to any breach of those warranties.
7.4 No Consequential Loss
To the fullest extent permitted by law, GaP will not be liable to the Exhibitor for any Indirect or Consequential Loss suffered by the Exhibitor or by any third party.
7.5 Force Majeure
GaP shall not be liable in damages or otherwise for failure to carry out the terms of this Agreement in whole or in part if this failure were caused directly or indirectly by or in consequence of, lock down, fire, flood, storm, war, rebellion, insurrection, riot, strike or any other cause whatever beyond the control of GaP whether similar or dissimilar from the causes enumerated herein.
7.6 Limitation of Liability
In all circumstances where GaP is liable to the Exhibitor, GaP’s liability:
a) is reduced to the extent that the loss suffered is a direct or indirect consequence of the act or omission of the Exhibitor or any other person;
b) is limited to the lesser of:
(i) any amount recovered by GaP from insurance in respect of the relevant liability;
(ii) an amount equal to the total Contribution paid to GaP by the Exhibitor; and
(iii) $5,000 (inclusive of GST); and;
c) is recoverable only in respect of a claim by the Exhibitor on GaP made within 12 months after the expiration of the Term.
8. Expiry and Termination
8.1 Expiry
Unless terminated earlier, this Agreement terminates at the conclusion of 12 months after the last day of the Trade Show stated in the
Prospectus (Term).
8.2 Termination by either Party
Subject to the provisions of this clause 8, neither Party may terminate this Agreement other than for breach by the other Party of a material obligation under this Agreement.
8.3 Cancellation or Postponement of Trade Show
In the event that GaP elects to cancel or postpone the Trade Show for any reason (including for reasons of pandemic or epidemic, default by third party, threat to security, severe weather conditions, fire or any other cause), GaP may elect, in its unfettered discretion, to:
a) provide the Benefits at a Trade Show held at a later date within twelve months of the proposed Trade Show date at a venue in Australia chosen by GaP;
or
b) cancel the Trade Show altogether and refund to the Contribution made less an amount reflective, in GaP’s reasonable opinion, of the costs to GaP expended to that time.
8.4 Survival
The rights and obligations contained in clauses 1, 3, 4.4, 7, 8.4, 9, 10 and 11 continue to bind the Parties notwithstanding the termination or expiry of this Agreement.
9. Dispute Resolution
9.1 Procedure for resolving disputes
a) A Party to this Agreement claiming that a dispute (Claimant) has
arisen under this Agreement will give notice to the other Party
(Defendant) stating the matters in dispute and naming as the Claimant’s representative a person with authority to negotiate and to settle the dispute (Dispute Notice).
b) Within 10 Business Days of receiving the Dispute Notice, the
Defendant will give the Claimant notice stating the Defendant’s response to the matters in dispute and naming as the Defendant’s representative a person with authority to negotiate and to settle the dispute (Reply Notice).
c) Within 5 Business Days of the service of the Reply Notice the Party’s named representatives will meet to seek to resolve the dispute. The terms of any settlement will be recorded in writing signed by both representatives.
d) If the dispute is not resolved within 10 Business Days of the service of the Reply Notice (or within such further period as the representatives may agree in writing as appropriate), the Parties will proceed to
mediate in accordance with the Institute of Arbitrators & Mediators Australian Mediation Rules.
e) If the matter is not resolved through mediation, within 40 Business Days of the Reply Notice, either Party may take such action as it sees fit.
9.2 Urgent interlocutory relief
Nothing in this clause 9 prevents a party from seeking and obtaining urgent interlocutory relief in a Court of appropriate jurisdiction.
9.3 Continue to perform
Notwithstanding the existence of a dispute, each Party will continue to perform its obligations under this Agreement.
10. Confidentiality
Unless compelled by Law to disclose that information, each Party will keep confidential the other Party’s confidential information.
11. General
11.1 GST
a) Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the same meaning in this clause.
b) Any consideration to be paid or provided for a supply made under or in connection with this Agreement unless specifically described in this Agreement as “GST inclusive” does not include an amount on account of the tax payable on taxable supplies under the GST Act (GST).
c) Despite any other provision in this Agreement, if a Party (Supplier) makes a supply on which GST is imposed, under or in connection with this Agreement:
(i) the consideration payable or to be provided for that supply under this Agreement (GST exclusive consideration) is increased by, and the
recipient of the supply (Recipient) will also pay to the Supplier, an amount equal to the GST exclusive consideration multiplied the
prevailing rate of GST; and
(ii) the amount by which the GST exclusive consideration is increased will be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
d) Any payment or amount to be made under this Agreement which is calculated as a percentage of any other amount or revenue stream, will be calculated as a percentage of that other amount or revenue stream net of GST.
11.2 Notices
All notices under this Agreement required to be given will be delivered by hand or sent by certified mail to the address of the Party set out in the Application, or the most recent address notified in writing by one Party to the other.
11.3 Relationship of the Parties
Neither Party:
a) will, in any circumstances by virtue of this Agreement be deemed to be a partner, employee, legal representative or agent of the other Party; and
b) has any right or authority to assume or create, in writing or
otherwise, any obligation of any kind expressed or implied or give any release, discharge or waiver in the name of or on behalf of the other Party or to otherwise act or purport to act in any capacity whatsoever on the other Party’s behalf.
11.4 Governing law and jurisdiction
a) This Agreement is governed by the Law applicable in the State of South Australia.
b) Each Party irrevocably and unconditionally submits to the
jurisdiction of the courts of the State of South Australia.
11.5 Severability
If any provision of this Agreement is in conflict with any rule of Law, statute, ordinance, regulation or is otherwise found to be invalid or unenforceable, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
11.6 Entire agreement
This Agreement constitutes the entire agreement between the Parties as to its subject matter and in relation to that subject matter, supersedes any prior understanding or agreement between the Parties and any prior condition, warranty, indemnity or representation imposed, given or made by a Party, other than as set in this Agreement.
11.7 Changes to this Agreement
Any modification or amendment to this Agreement will be in writing signed by each of the Parties.
11.8 No waiver
The failure of a Party to enforce any of the provisions of this
Agreement or the granting at any time of any other indulgence is not to be construed as a waiver of that provision or of the right of such Party to enforce that or any other provision at a later date.
11.9 Costs
Each Party will bear its own costs for the preparation and execution of this Agreement.