Exhibitor Agreement Terms
In this Agreement unless the context otherwise requires or the contrary intention appears, the following terms have the meanings respectively assigned to them:
Agreement means this agreement and any and all schedules, annexures and attachments;
Area means the designated for the use of the Event in accordance with the terms of this Agreement. The Area includes the Booth Location.
Booth Location means the specific location in the Area which RACQ assigns for the use of the Exhibitor in accordance with this Agreement.
Business Day means any weekday, excluding gazetted public holidays in Brisbane, Queensland.
Claim is any action, claim, suit, demand, loss, damage, liability, cost, expense, tax, outgoing or payment of whatsoever nature including legal expenses on a full indemnity basis and damages and other compensation paid on advice of legal advisers to compromise or settle any claim, whether of the parties or another person.
Consequential Loss means any financial, economic or consequential loss (whether direct or indirect).
Design means the design of the use of the Booth Location as prepared by the Exhibitor and submitted to RACQ in accordance with clause 3 of this Agreement.
Design Submission Date means the date on which the Exhibitor must provide a copy of its Design to RACQ as specified in the Particulars
Event means the event detailed in the Particulars of this Agreement.
Exhibitor Guidelines means the guidelines outlined in Schedule 3 of this Agreement.
Fee means the amount payable by the Exhibitor to RACQ as specified in the Particulars, including any deposit.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world and whether created before or after the date of this Agreement.
Moral Rights has the meaning given in the Copyright Amendment (Moral Rights) Act 2000 (Cth).
Personnel are any directors, officers, employees, professional advisers, agents or Subcontractors of a party.
RACQ Property means any property owned, leased or operated by RACQ or any Related Body Corporate.
Related Body Corporate has the meaning given to the term in the Corporations Act 2001 (Cth).
RNA Showgrounds means the showgrounds located at 600 Gregory Terrace, Bowen Hills, Queensland.
Site Owner means the Royal National Agricultural and Industrial Association of Queensland ABN 41 417 513 726.
- In this Agreement (including the recitals and the schedules) unless the context otherwise requires:
(a) any term defined in the statement of the names and descriptions of the parties has the meaning there defined;
(b) where any word or phrase is given a definite meaning in this Agreement any part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning;
(c) reference to any legislation or any provision of any legislation includes any modification or re-enactment of the legislation or any legislative provision substituted for, and all legislation and statutory instruments and regulations issued under, the legislation;
(d) words denoting the singular include the plural and vice versa;
(e) words denoting individuals or persons include bodies corporate, unincorporated body, trusts and vice versa;
(f) reference to a person includes the legal personal representatives, executors, administrators, successors, permitted assigns and substitutes including but not limited to a person to whom this Agreement is novated;
(g) headings are for convenience only and will not affect the interpretation;
(h) reference to a clause, paragraph, schedule, attachment or party is a reference to a clause, paragraph, schedule, attachment or party of or to this Agreement and a reference to this Agreement includes any schedules and attachments;
(i) reference to any document or Agreement, including this Agreement, includes reference to such document or Agreement as amended, novated, supplemented, varied or replaced from time to time;
(j) words denoting any gender include all genders;
(k) a provision of this Agreement must not be construed adversely to a party on the grounds that the party drafted that provision;
(l) reference to a time and date in connection with the performance of an obligation by a party is a reference to the time and date in the State of Queensland notwithstanding the obligation is to be performed elsewhere;
(m) if a period of time runs to or from a given date, act or event, then the time is calculated exclusive of the date, act or event;
(n) if the date on which a thing must be done is not a Business Day, then that thing must be done on the following Business Day; and
(o) a reference to “includes” means includes without limitation.
- RACQ Obligations
- RACQ will provide to the Exhibitor a Booth Location within the Area and inclusions in accordance with the Selected Exhibitor Option for use during the Term.
- The exact Booth Location will be at the sole discretion of RACQ and will be provided to the Exhibitor in accordance with the date outlined in the Particulars.
- If agreed between the parties, RACQ will also provide the Additional Branding Opportunities as outlined in the Particulars. Additional Branding Opportunities may be subject to an additional Fee, at the sole discretion of RACQ.
- If agreed between the parties, RACQ will also honour any Special Conditions as outlined in the Particulars.
- Exhibitor obligations
- The Exhibitor must submit to RACQ, for approval, the Design on or before the Design Submission Date. RACQ may, in its absolute discretion, reject the Design and require the Exhibitor to submit an alternative Design.
- The Exhibitor must:
(a) Use the Area and all facilities to which is given access for the purpose of conducting the Event and only for that purpose;
(b) Must comply with any directions, policies prescribed from time to time by or on behalf of RACQ;
(c) Not damage or destroy any part of the Area or RACQ Property other than reasonable wear and tear expected;
(d) Keep the Area in a clean and safe condition;
(e) Not bring animals or plants to the Event unless express written consent is provided by RACQ;
(f) Not disrupt any other event occurring at the RNA Showgrounds;
(g) Not install any equipment, displays, cabling or services without the prior written approval by RACQ;
(h) Not use or attempt to use any facilities or equipment, including electronic equipment, without consent of RACQ unless the equipment is specified in the Schedule to be for the use of the Exhibitor;
(i) Not occupy any space outside of the Area unless express approval is provided by RACQ;
(j) Give RACQ immediate oral notice of any circumstances likely to be or cause a danger, risk or hazard to the Area or to RACQ Property;
(k) Comply with all laws relating to the use of the Area by the Exhibitor; and
(l) During the Event, comply with any directions given by RACQ or any direction provided by RNA Staff.
(m) Adhere to the Exhibitor Guidelines provided in Schedule 3 of this Agreement.
- The Exhibitor accepts the Area and the RACQ Property is provided on an ‘as is, where is’ basis and RACQ gives no warranty that the Area or RACQ’s Property are fit or suitable for any purpose to which the Exhibitor intends to put them.
- The Exhibitor must pay the Fee in the amounts and times detailed in the Particulars.
- The Fee must be paid in full by the Exhibitor without set off, deduction, counterclaim or withholding.
- If the Exhibitor fails to pay the Fee prior to the event outlined in the Particulars,
(a) The Exhibitor will pay interest at the rate of 3% per month on all overdue amounts, including unpaid interest;
(b) RACQ may terminate the Agreement by giving written notice in accordance with clause 5 of this Agreement.
- All amounts referred to in this Agreement, including the Fee are inclusive of GST unless expressly excluded.
- RACQ may terminate this Agreement for any reason by giving 10 Business Days written notice prior to the event to the Exhibitor.
- The Exhibitor may terminate this Agreement for any reason by giving 30 days written notice prior to the event to RACQ.
- If RACQ terminates this Agreement in accordance with this clause 5, any payment made by the Exhibitor will be refundable by RACQ.
- All warranties, exclusions of liability, indemnities, terms with respect to intellectual property and Confidential Information on the part of a party in this Agreement will remain valid and binding upon that party following expiry or termination of this Agreement. This clause does not prevent the survival of any provision which, in the absence of this clause, would be deemed to survive expiry or termination of this document.
- The Exhibitor is liable for and indemnifies RACQ and its Personnel and its Related Body Corporate from and against, all losses, liabilities, claims or damage (including legal costs and expenses) incurred or suffered by RACQ in connection with:
(a) Any breach of this Agreement by the Exhibitor or its Personnel;
(b) Any negligence, errors or omissions, breach of duty or other fault of the Exhibitor or its Personnel;
(c) Any breach of law by the Exhibitor or its Personnel in connection with this Agreement, the use of the Area or the Event;
(d) Personal injury (including death) or property damage caused or contributed to by the Exhibitor or its Personnel; or
(e) A claim by a third party that the Design provided by the Exhibitor or its Personnel infringe any third party Intellectual Property Rights or Moral Rights.
- Limitation of liability
- Nothing in this Agreement is or should be interpreted as an attempt to modify, limit or exclude terms or warranties which are imposed by statute and which cannot be modified, limited or excluded.
- Despite any other provision of this Agreement, RACQ’s aggregate liability under this Agreement for loss or damage (however caused and including by the negligence by RACQ) sustained by the Exhibitor under or in connection with this Agreement is limited to the Fees paid or payable under this Agreement. RACQ will not be liable to the Exhibitor for any Consequential Loss.
- Despite any other provision of this Agreement, RACQ will not be liable under any circumstances for any Claim, injury, or any other liability whatsoever to the extent that such liabilities are consequential, indirect or special in nature (including any loss of profit, loss of revenue, loss of use, loss of opportunity or chance, loss of contract, loss of goodwill or substitution cost).
- confidential information
- Where, in furtherance of or in connection with this Agreement, one party (the Discloser) provides to another party (the Recipient) Confidential Information the Recipient must keep confidential that Confidential Information during the Term, and for 3 years thereafter.
- For the purposes of this clause 8“Confidential Information” includes, but is not limited to:
(a) the terms of this Agreement;
(b) any related negotiations;
(c) any information, data, document, communication, transmission, idea, know-how, trade secret, process, technique, software, intellectual property, financial and business information, and any and all other commercially valuable or sensitive information of the Discloser (whether in writing or otherwise), which the Discloser reasonably regards as confidential or sensitive, and which is disclosed (whether directly or indirectly) to the Recipient, and to all copies, notes, and records and all related information generated by the Recipient based upon or arising out of any such disclosure, or upon the Recipient’s observations, deductions, reasoning, inspection or overhearing of any such disclosure; and
(d) If the Recipient is uncertain as to whether any information is Confidential Information of the Discloser, then the Recipient must treat the information as if it is Confidential Information, and as not being in the public domain, unless and until the Discloser agrees in writing that the information is not Confidential Information.
- The Recipient undertakes that it will, within ten (10) Business Days of receiving a written request from the Discloser return to the Discloser all of the Discloser’s Confidential Information in its possession or control.
- The Recipient indemnifies and agrees for a period of 3 years from the date of disclosure, to keep the Discloser indemnified from and against any loss or damage suffered by the Discloser, costs, expenses, actions or Claims arising out of any unauthorised use or disclosure of any of the Confidential Information by:
(a) the Recipient;
(b) any person in respect to whom the Discloser consents to the Recipient making a disclosure of the Confidential Information; or
(c) any person whose awareness of the Confidential Information originated with the Recipient.
- The Exhibitor must at all times from the date of the Agreement until the end of the Event hold the following:
(a) Public liability insurance for an amount of no less than $10million for each and every occurrence; and
(b) Worker’s compensation insurance as required by law.
- Upon RACQ’s request, the Exhibitor must provide evidence to RACQ of the insurance held.
- force majeure
- For the purposes of this clause, Force Majeure means an act, omission, cause or circumstances outside a party’s reasonable control including without limitation, fire, storm, earthquake, epidemic, explosion, accident, enemy acts, war, sabotage, labour dispute and act or omission of a third party which directly affects that party’s ability to perform its obligations arising under this Agreement and cannot be mitigated by undertaking reasonable commercial endeavours.
- For the avoidance of doubt, any act, omission, cause or circumstance arising in relation to the COVID-19 global pandemic is agreed between the parties to be a Force Majeure event (except the failure of the Exhibitor to comply with clause 11of this Agreement). This includes the cancellation of the event by the RNA on the basis of COVID-19 related matter.
- Neither party shall be liable for any delay or failure to perform its obligations under this Agreement if such failure or delay is due to Force Majeure.
- The affected party shall:
(a) notify the other party as soon as practicable of any anticipated delay due to Force Majeure and take all reasonable steps to minimise any disruption to and resume the performance of its affected obligations; and
(b) ensure that the suspension of performance of its obligations under this Agreement is of no greater scope and no longer duration than is reasonably required by the event of Force Majeure.
(c) RACQ will not be liable to pay the Exhibitor for any obligation under this Agreement that are not performed due to a Force Majeure event.
- COVID Safe Compliance
- The Exhibitor must comply with and meet all legislated obligations, directions and similar concerning matters (COVID Safe Matters) relating to the COVID-19 pandemic owing in respect of the Event for the Term of the Agreement.
- Without limiting the generality and application of clause 11.1, the Exhibitor must acknowledge and comply at all times with the following (as updated and approved by the Queensland Government from time to time):
(a) the Industry Framework for COVID Safe Events in Queensland;
(b) the Site Owner’s COVID Safety Site Specific Plan;
(c) the COVID Safe Event Checklist;
(d) the Site Owner’s COVID Safe Event Plan;
(e) RACQ’s COVID Safety Site Specific Plan; and
(f) any other similar or ancillary document and policies in place from time to time pertaining to the Event or the Site.
- If the Exhibitor is required to have its own plan in place with regard to COVID Safe Matters (Exhibitor COVID Plan), it must:
(a) prepare, and have approved by the Queensland Government, the Exhibitor COVID Plan;
(b) submit a copy of the Exhibitor COVID Plan to RACQ and to the Site Owner; and
(c) comply with the Exhibitor COVID Plan. If there is any inconsistency between the Exhibitor COVID Plan and the documents set out in Clause 11.2, the documents set out in Clause 11.2 will prevail to the extent of the inconsistency.
- The Exhibitor must:
(a) follow all directions given to it by RACQ concerning the COVID Safe Matters;
(b) cooperate with any monitoring or auditing of COVID Safe Matters, as directed by RACQ, arising in respect of the subject matter of this agreement;
(c) immediately report to RACQ any concerns that the Exhibitor may have concerning COVID Safe Matters arising in respect of the subject matter of this Agreement.
- The Exhibitor must indemnify and keep RACQ indemnified, against all loss incurred or sustained by RACQ arising directly or indirectly from the Exhibitor’s failure to comply with the provisions of this Clause 11 except to the extent it is directly caused by the negligence of RACQ or its officers, employees or agents.
- Dispute Resolution
- Except where a party seeks an urgent interlocutory relief, if a dispute arises in relation to the rights and obligations of the parties under this Agreement (Dispute), the parties must follow the procedures set out in this clause before escalating the Dispute to litigation or arbitration.
- The dispute resolution procedures in this clause will arise upon a party notifying the other Party in writing providing reasonable details as to the existence and nature of the Dispute and setting out the reasons for its dissatisfaction or claim of breach of the Agreement (Dispute Notice).
- The parties must use their best endeavours to settle the Dispute within 10 Business Days after service and receipt of a Dispute Notice. If the Dispute remains unresolved after this time, the respective parties must authorise a person or persons holding the required level of authority to meet within five Business Days to attempt to resolve the Dispute.
- Form and delivery
All legal communications (including notices, consents, approvals, requests and demands) under or in connection with this Agreement:
(a) must be in writing in legible English;
(b) must be addressed to the Key Personnel as set out in the Particulars section of this Agreement;
(c) must be signed by the party making the communication or (on its behalf) by the solicitor for, or any attorney, director, secretary or authorised agent of, that party;
(d) must be delivered or posted by prepaid post to the address, or sent by email to the addressee email address as set out in the Particulars section of this Agreement.
Communications referred to in clause 13.1 are taken to be received by the addressee:
(a) (in the case of prepaid post) on the Business Day (which, in this clause, means a day not being a Saturday, Sunday or public holiday, on which banks are generally open for business in the place of receipt of the communication) that is the third Business Day after the date of posting to an address within Australia, and on the fifth Business Day after the date of posting by airmail to an address outside Australia;
(b) (in the case of delivery by electronic mail) at the time shown in the delivery confirmation report generated by the sender’s email system unless an answerback code is received by the sender which indicates the email transmission has not been successful; and
(c) (in the case of delivery by hand) on delivery at the address of the addressee as provided in clause 13.1(b).
- Notice received after business hours
A notice delivered or received other than on a Business Day or after 4.00pm (recipient’s time) is regarded as received at 9.00am on the following Business Day and a notice delivered or received before 9.00am (recipient’s time) is regarded as received at 9.00am.
- General information
- Entire Agreement
To the extent permitted by law in relation to its subject matter, and subject to any other overriding provisions of this Agreement, this Agreement:
(a) embodies the entire understanding of the parties, and constitutes the entire terms agreed by the parties; and
(b) supersedes any prior written or other agreement of the parties relating to the subject matter of this Agreement.
- Governing Law
This Agreement will be construed in accordance with laws in force in Queensland and the parties submitted to the jurisdiction of the courts of Queensland.
- Reference to a party
Any reference to a party in this Exhibitor Agreement includes, and any obligation or benefit under this Agreement will bind or take effect for the benefit of, that party’s executors, administrators, successors in title and assigns.
- Further Assurances
Each party will sign and complete all further documents and do anything else that may be reasonably necessary to effect, perfect or complete the provisions of this Agreement and the transactions to which it relates.
If any provision (or part of a provision) of this Agreement or the performance of, or compliance with, any obligation under this Agreement:
(a) is or becomes illegal or void or otherwise unenforceable; or
(b) necessarily exposes either party to prosecution under any law, then, that provision (or part provision) or performance or compliance, as the case may be, is severable from this Agreement and the remainder of this Agreement will remain on foot.
The Exhibitor cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of RACQ.
This Agreement may only be varied by a written document signed by each party.
- No waiver
(a) Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under this Agreement by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this Agreement.
(b) A waiver or consent given by a party under this Agreement is only effective and binding on that party if it is given or confirmed in writing by that party.
(c) No waiver of a breach of a term of this Agreement operates as a waiver of another breach of that term or of a breach of any other term of this Agreement.
This Agreement may be signed in any number of counterparts, and all those counterparts together make one instrument.