- AGREEMENT: Each exhibitor (each such party an "Exhibitor") at the 2016 Shoptalk event (the "Event") hereby agrees to abide by the terms and conditions of this agreement (this "Agreement"), together with such additional terms and conditions as may be adopted by Shoptalk Commerce, LLC, a Delaware limited liability company, with an address at 622 Third Avenue, 35th Floor, New York, NY, 10017 ("Shoptalk") and provided to Exhibitor from time to time.
- This Agreement shall remain in force from the date entered into by the parties until the last day of the Event (the "Term") unless terminated earlier in accordance with the provisions of this Agreement.
- Without prejudice to the termination rights set out in Section 6 or 7 below, either party has the right at any time to terminate this Agreement immediately by giving written notice to the other in the event that the other: (i) has committed a material breach of any of its obligations under this Agreement (including a failure to pay any amounts due under this Agreement) and has not remedied any such breach (if capable of remedy) within fourteen (14) days of being required to do so by written notice; or (ii) files a voluntary petition in bankruptcy or a petition seeking any reorganization, liquidation, dissolution, or similar relief under any applicable law relating to bankruptcy, insolvency, or relief for debtors, or the admission by such other party of its inability to pay debts as they mature, or the making by such other party of an assignment for the benefit of creditors or the taking of similar action for the benefit of creditors, or (iii) suffers the entry by a court of competent jurisdiction of an order, judgment, or decree approving a petition filed against such other party seeking any reorganization, liquidation, dissolution, or similar relief under any applicable law relating to bankruptcy, insolvency, or other relief for debtors and the expiration of the period, if any, allowed by applicable law in which to appeal therefrom.
- If this Agreement is terminated by Shoptalk in accordance with Section 2.2: (i) where such termination occurs prior to commencement of the Event, Exhibitor shall be obliged to pay the Exhibit Fees and any sums outstanding as at the date of termination shall be payable by Exhibitor within fourteen (14) days of the date of Shoptalk's notice of termination; (ii) Shoptalk shall be entitled to re-sell the exhibit space assigned to Exhibitor to a third party; (iii) there shall be no obligation on Shoptalk to refund any sums paid by Exhibitor pursuant to Section 5; and (iv) if applicable, any of the Exhibitor's property at the Event shall be removed by Exhibitor immediately, failing which the property shall be removed by Shoptalk at the Exhibitor's expense.
- Termination of this Agreement by either party for any reason shall be without prejudice to any rights or obligations that may have accrued as at the date of such termination.
- ASSIGNMENT OF EXHIBIT SPACE AND EVENT RIGHTS: In exchange for a stand-alone exhibit fee or for an exhibit fee included as part of sponsorship fee (in either case, referred to herein as the "Exhibit Fee"), Shoptalk shall provide Exhibitor with an assigned exhibit space for certain hours defined by Shoptalk during the Event. Where the Exhibitor informs Shoptalk prior to entering into the Agreement, that there is a specific exhibit space that is desired, Shoptalk shall use commercially reasonable efforts to allocate that specific exhibit space to the Exhibitor. However, Exhibitor acknowledges and agrees that Shoptalk cannot guarantee availability of any preferred exhibit space. Shoptalk reserves the right to assign, or relocate, exhibit areas or reconfigure the exhibition area for the betterment of the Event or otherwise in its sole discretion with no liability to you provided the exhibit area continues to be similar to the exhibit area as originally presented to the Exhibitor. Without limiting any of the foregoing, exhibit space assignments may be revoked by Shoptalk at any time, including onsite during the Event, upon breach of the terms and conditions of this Agreement. Exhibit space assignment shall be conditional on payment in full of all amounts due hereunder or under any other contract with Shoptalk. The exhibit space assigned to Exhibitor is for the use of the named Exhibitor only. Exhibit space sharing in whole or in part with any third party is expressly prohibited.
- OPERATION OF EXHIBITS: Displays in exhibit spaces must be designed and operated in a manner that respects the rights of other Exhibitors and attendees. Displays shall not (x) block or obstruct the view of or (y) create noise or other disturbance for a neighboring or other Exhibitor. All lighting within the exhibit space must be arranged and operated so as not to be distracting to adjacent Exhibitors. Exhibitor, together with any employee, agent or independent contractor of Exhibitor, will conduct itself/himself/herself in a manner lending proper dignity, decorum and professionalism to the Event. Shoptalk may, in its sole discretion, remove Exhibitor, or any employee, agent or independent contractor of Exhibitor, from the premises for behavior that Shoptalk determines in its sole discretion to be inappropriate. Without limiting the foregoing, the following activities are expressly prohibited in exhibit spaces: preparation of food or beverages, promotional contests that require physical skill, unauthorized taking of photographs, derogatory advertisements of other Exhibitors, competitive or like-mannered businesses, or activities (including, but not limited to, materials promoting Exhibitor's attendance at the Event) which would be deemed inaccurate, defamatory, abusive, profane or offensive by a reasonable person. Exhibitor warrants to Shoptalk that it is legally entitled by ownership or license to use the items exhibited or materials relating to the activities carried out in exhibit space, and that the same shall not infringe the rights of any third party, or otherwise be unlawful, or be detrimental to Shoptalk or its general commercial interests. Exhibitor indemnifies Shoptalk against all costs, expenses, damages, claims, losses and liabilities suffered or incurred by Shoptalk as a result of the Exhibitor carrying out any of the aforementioned prohibited activities or breaching the aforementioned warranty. Shoptalk reserves the right, in its sole discretion, to exclude the showing of any products in the exhibit area that are deemed objectionable. Exhibitor is responsible for payment of fees, royalties or fines for use of any third-party work that is protected by copyright, patent or trademark. Exhibit space must be staffed by at least one member of the Exhibitor's employees at all times during scheduled exhibit hours. Unless prior written permission is received from Shoptalk, all Exhibitor personnel must be 21 years of age or older. Exhibitor personnel must be dressed appropriately and confine their activities on behalf of Exhibitor to the exhibit space of Exhibitor. Any food or beverage that is distributed at exhibit spaces may be subject to additional fees from the Event venue. Distribution of certain food and beverage items may be prohibited and advance approval is required. Operation of exhibit spaces is subject to any applicable rules and regulations of the Event venue and Exhibitor hereby acknowledges and agrees with the terms thereof, a copy of which has been made available to Exhibitor. The Exhibitor shall ensure that the exhibit space is left in good order and in a clean condition at the end of the Event and in accordance with the aforementioned rules and regulations, provided that in the event of any failure to do so, Shoptalk may elect to carry out these obligations and has sole discretion to dispose of any items remaining at the exhibit space and Exhibitor shall be liable to Shoptalk for any costs so incurred in doing so.
- TERMS OF PAYMENT: Payment of the Exhibit Fee is due in accordance with and as stated in the applicable invoice sent by Shoptalk to Exhibitor.
- CANCELLATION BY EXHIBITOR: Exhibitor acknowledges and agrees that actual occupancy of the exhibit space reserved by the Exhibitor is of the essence of this Agreement during and throughout the Event. In the event that Exhibitor does not occupy its allocated exhibit space by the opening time on the first day of the Event, Shoptalk may occupy, re-allocate to a third party or cause said space to be occupied in its sole discretion without in any way releasing the Exhibitor from any liability hereunder. Furthermore, if Exhibitor does not occupy and staff its allocated exhibit space in accordance with the terms of this Agreement, all rights of Exhibitor to such exhibit space shall terminate and Exhibitor shall be obliged to pay the full Exhibit Fee, with any outstanding sums payable by the Exhibitor within fourteen (14) days. Exhibitor acknowledges and agrees that Shoptalk will likely sustain losses if Exhibitor cancels its commitment for some or all of its assigned exhibit space. Accordingly, Exhibitor shall forfeit the full amount of its Exhibit Fee in the event that Exhibitor cancels its commitment for some or all of its assigned exhibit space. Each party acknowledges and agrees, after taking into account the terms of this Agreement and all relevant circumstances at the date hereof, that the forfeiting of such Exhibit Fee represents a reasonable and genuine pre-estimate of the damages which would be suffered by Shoptalk in the event of Exhibitor's cancellation and does not constitute a penalty. In addition, any fees included within the Exhibit Fee (or any sponsorship fee) for any attendees of Exhibitor who do not attend the Event, for any reason, are not reimbursable, in whole or in part.
- CANCELLATION OF EXHIBIT SPACE BY SHOPTALK: Exhibit space may be canceled by Shoptalk for failure to make payments when due or failure by Exhibitor to comply with the applicable terms and conditions of this Agreement. If exhibit space is so canceled by Shoptalk, Exhibitor shall forfeit all payments made and Shoptalk shall have the right to reassign such canceled space to another exhibitor in its sole discretion without mitigation of such forfeited amounts.
- ALTERATION OR CANCELATION OF EVENT BY SHOPTALK: It may be necessary for Shoptalk to alter the advertised content, timing, date and/or location of the Event. Shoptalk reserves the right to do this at any time during the Term and without liability to Exhibitor, provided that the Event, as altered, is substantially similar to the Event as originally advertised. Shoptalk will provide Exhibitor with notice of any alterations as soon as is reasonably practicable. In the event that Shoptalk cancel the Event (pursuant to this Section 8) or materially alter the advertised content, timing, date and/or location of the Event, Shoptalk shall notify the Exhibitor thereof as soon as reasonably practicable and the Exhibitor shall be entitled to either: (i) a credit for a future event held by Shoptalk of your choice (up to the value of the Exhibit Fee paid by Exhibitor in respect of the Event); or (ii) terminate this Agreement with immediate effect and obtain a refund (calculated by Shoptalk in good faith) of an amount that reflects the total sums paid by Exhibitor at the date of cancellation minus the value of any rights received by Exhibitor prior to the date of cancellation (e.g. in relation to marketing and promotions). Any such refund shall be paid by Shoptalk within 60 days upon written request.
- ATTENDANCE: Shoptalk shall use its commercially reasonable efforts to market the Event and attract attendees, but does not guarantee specific levels of attendance at the Event or any particular exhibit space location. Shoptalk makes no representations or warranties, express or implied, regarding attendance levels at the Event.
- INSURANCE: Exhibitor and its independent contractors each agree to obtain and maintain appropriate commercial liability insurance, with minimum coverage of $1,000,000 per incident and $3,000,000 in the aggregate, and other appropriate insurance during the Event. Such insurance shall name each of Shoptalk Commerce, LLC and the Event venue as additional insureds, and shall be endorsed to require not less than thirty (30) days' prior written notice of termination or modification to Shoptalk. Upon request by Shoptalk, Exhibitor shall provide certificates of insurance evidencing such coverage and amounts. Failure to provide evidence of satisfactory insurance upon such request shall be deemed a material breach of this Agreement and Shoptalk shall be entitled to terminate this Agreement and forthwith re-allocate the exhibit space to a third party.
- SECURITY: In no case will Shoptalk be responsible for theft, loss or damage to Exhibitor's products or exhibit space or display. Exhibitor agrees that it is wholly responsible for protecting its property on and off the Event premises. Exhibitor is encouraged to have guards or security cages and should insure their property (from the time it leaves their warehouse or place of business until it returns) at their own expense.
- TAXES AND LICENSES: Exhibitor agrees to be responsible for obtaining any licenses, permits, or approvals required under federal, state or local law applicable to its activities at the Event. Exhibitor shall be responsible for obtaining any tax identification numbers and paying all taxes, license fees or other charges that are due or payable to any governmental authority in connection with its activities at the Event. Exhibitor is responsible for all applicable ASCAP/BMI music licensing fees.
- INDEMNIFICATION Without prejudice to the indemnity given by Exhibitor in Section 4 above or Section 14 below, Exhibitor shall indemnify, defend and hold harmless Shoptalk, its affiliates and each of their respective officers, directors, managers, employees, agents, representatives and invitees, and their respective successors, assigns and heirs, from and against any and all losses, liabilities, costs, damages, claims, or expenses, including without limitation attorneys' fees, resulting from any claims, demands, suits or other actions arising from or out of or by reason of Exhibitor's participation in the Event, occupancy and use of the exhibit space or by virtue of any other actions or omissions by or on behalf of the Exhibitor at the Event venue or any part thereof. Shoptalk reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Exhibitor, which action shall not be deemed to excuse Exhibitor's indemnification obligations hereunder.
- COMPLIANCE WITH LAWS Exhibitor must be in full compliance with all applicable laws and regulations, including, without limitation, the Americans with Disabilities Act, Bribery Act 2010 and the Foreign Corrupt Practices Act 1977. Exhibitor warrants to comply with Shoptalk's anti-bribery and anti-corruption policies as notified of from time to time and to report to Shoptalk any request or demand for any undue financial, or other advantage of any kind, received by or on behalf of the Exhibitor in connection with the performance of this Agreement. Breach of this Section 14 shall be deemed a material breach of this Agreement. Exhibitor indemnifies Shoptalk against all costs, expenses, damages, claims, losses and liabilities suffered or incurred by Shoptalk as a result of the Exhibitor breaching this Section 14.
- FORCE MAJEURE: Shoptalk shall not be liable for any performance delay or failure, loss, or damage due to any event or series of connected events outside its reasonable control including without limitation fire, explosion, power blackout, earthquake, flood, storm, tsunami, volcanic ashcloud, extreme adverse weather conditions, pandemic, strikes or other industrial disputes, failure of a utility service or transport network, breakdown of plant or machinery, embargo, labor disputes, acts, omissions or failures of vendors, suppliers or independent contractors outside the control of Shoptalk, acts of terrorism, acts of civil or military authority, acts of regulatory or governmental authorities, acts of God, or other similar events (each such event, a "Force Majeure Event"). Shoptalk's performance under this Agreement shall be deemed to be suspended for the period that a Force Majeure Event continues, and Exhibitor agrees that Shoptalk may have an extension of time for performance for the duration of that period, including where appropriate by an extension to the Term. Shoptalk will use commercially reasonable efforts to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event. It is further agreed that should a Force Majeure Event makes it impossible or inadvisable for Shoptalk to hold the Event or portion thereof at the date, time, and place agreed: (i) Shoptalk shall have the right to cancel all or a portion of the Event; (ii) this Agreement shall terminate with immediate effect on written notification thereof by Shoptalk; (iii) Exhibitor shall and does hereby waive any claim for property or other damage or compensation; and (iv) there shall be no further liability on the part of either party to the other.
- ASSIGNMENT This Agreement may not be assigned, re-sold, transferred or otherwise disposed of by Exhibitor without the prior written consent of Shoptalk, which consent may be granted or withheld at the sole discretion of Shoptalk.
- PUBLICITY Shoptalk shall have the right, but not the obligation, to make, or cause to be made, any press release or public announcement including but not limited to announcements on social media regarding, or to otherwise publicize and announce in marketing materials or otherwise, Exhibitor's participation in the Event, and to use Exhibitor Marks (as defined below) in connection therewith, without the prior consent of Exhibitor. Such announcements shall not be disparaging or otherwise adverse to your business.
- NOTICES All notices required or permitted to be given under this Agreement shall be deemed delivered on receipt if delivered by hand, nationally recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, or confirmed fax, at the information on file for the parties first listed above, or to such other address as may be designated by either party by notice given as provided by this Section.
- ADDITIONAL TERMS AND CONDITIONS: Exhibitor acknowledges and agrees that any additional terms and conditions for the Event adopted from time to time by Shoptalk are made a part hereof as though fully incorporated herein. Shoptalk shall have full and exclusive power in the matter of the interpretation, amendment and enforcement of all said terms and conditions. If a dispute or disagreement shall arise between the parties concerning the allotment or permitted use of exhibit space or concerning interpretation of any of the terms and conditions hereof, the decision of Shoptalk shall be final and the Exhibitor hereby agrees to abide by such decision.
- GOVERNING LAW; VENUE: This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State New York, without regard to its conflict of law principles. The parties agree that the state and federal courts in the City of New York, State of New York shall have exclusive jurisdiction over any dispute arising out of this Agreement or any other aspect of the parties' business relationship, irrevocably submit to the personal jurisdiction of said courts, and waive any claim that the City of New York, State of New York is an inconvenient forum or that such courts lack jurisdiction for such actions.
INTELLECTUAL PROPERTY RIGHTS
- Exhibitor grants to Shoptalk a worldwide, non-exclusive, royalty free, sub-licensable license to use their logos and trademarks (the "Exhibitor Marks") provided to Shoptalk in accordance with the terms of this Agreement, during the Term, on the Event website and other marketing and publicity materials. Exhibitor shall provide Shoptalk with samples of the Exhibitor Marks in a suitable format within five days of this Agreement being entered into (or within one day where this Agreement is entered into less than ten days before the start of the Event). Any changes to the Exhibitor Marks for subsequent Events shall be notified to Shoptalk no later than ten days before the start of the Event.
- Shoptalk grants to Exhibitor a non-transferable, non-exclusive, royalty free license to use the Shoptalk logos and trademarks (the "Shoptalk Marks"), during the Term, solely to promote Exhibitors attendance at the Event. Exhibitor acknowledges that all intellectual property and similar and related rights (including, without limitation, trademarks, copyright, design rights, know-how, confidential information and goodwill) in and relating to the Event and any materials provided by or produced by Shoptalk in relation to the Event shall be owned by Shoptalk (or the applicable third party licensor) and Exhibitor undertakes not to use any such rights without prior written consent from Shoptalk.
This Agreement contains the entire agreement of the parties hereto and supersedes all prior discussions, agreements and undertakings, both written and oral, between the parties hereto with respect to the subject matter hereof, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns and legal representatives. This Agreement shall not create, nor shall it be construed as creating, any partnership or agency relationship between the parties. The waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any prior or subsequent breach thereof, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. No amendment or alteration of the terms of this Agreement shall be valid unless made in a writing signed by each of the parties hereto and specifically referencing this Agreement. The holding of any provision of this Agreement to be invalid or unenforceable by a court of competent jurisdiction shall not affect any other provision of this Agreement, which shall remain in full force and effect. Shoptalk's liability in connection with this Agreement will not exceed the amounts paid by Exhibitor under this Agreement. Shoptalk, its employees, representatives and agents shall not be liable to Exhibitor or any third party for any indirect, incidental, special, punitive, or consequential damages, even if advised of the possibility of such damages. Any cause of action of Exhibitor against Shoptalk in connection with this Agreement must be commenced within six (6) months after the completion of the Event or Exhibitor shall be deemed to have released such claim and it shall be barred, notwithstanding any provision of any statute of limitations to the contrary.