TERMS & CONDITIONS

These Terms and Conditions (“Terms”), together with the relevant Festival application and any invoices, attachments, exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or issued in connection therewith, constitutes the entire agreement (the “Agreement”) between The Florida International University Board of Trustees, as administrator and co-producer of the Food Network South Beach Wine & Food Festival presented by Capital One (the “Festival”) and the exhibitor, restaurant, talent, supplier, or participant identified in the application (the “Participant”). The Festival’s acceptance of Participant’s application is conditioned upon Participant’s assent that any terms different from or in addition to these Terms, whether communicated orally or contained in any confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Agreement, even if Participant purports to condition its acceptance of these Terms on the Festival’s agreement to such different or additional terms. These Terms and Conditions may be updated and changed from time to time and are effective immediately upon posting such changes on the website.  Participant’s electronic acceptance, payment, receipt of payment, acknowledgement of these Terms, or commencement of performance, constitutes Participant’s acceptance of these Terms, and Participant’s initial and continued permission to participate in the Event (as defined in the application) is subject to these Terms:

1. Activation. ALL ACTIVATION DETAILS MUST BE SUBMITTED TO THE FESTIVAL BY FRIDAY, NOVEMBER 18, 2022 or fifteen (15) days after execution of the Agreement (whichever date is earlier).  FAILURE TO TIMELY SUBMIT ACTIVATION DETAILS FOR APPROVAL MAY RESULT IN PLANS BEING ALTERED OR DENIED AND MAY REQUIRE PARTICIPANT TO INSTEAD USE THE FESTIVAL’S STANDARD ACTIVATION.  Participants must offer adequate quantities of food and/or beverage tastings to Event attendees, as determined by the Festival, to be served at no additional cost to Event attendees.  Festival shall reject any elements of Participant’s activation that utilizes a product or brand that is in direct conflict with a Festival sponsor with exclusivity; Festival shall notify Participant of any exclusive sponsorships that may be applicable to Participant’s activation as early as practicable. Festival policy does NOT permit the solicitation of onsite sales by Participants – no cash and carry activity will be permitted at any time.  Any sales at the Event location will result in the Participant’s immediate removal from the Event. The Festival shall supply Participant with additional operational terms and conditions prior to the start of the 2023 Festival.
2. Licensing Rights. The Festival shall have the limited right to use Participant’s trademarks and logos, as provided to the Festival by Participant (“Participant’s Marks”) on a royalty-free basis for the exclusive purpose of implementing the various sponsorship benefits set forth in the Agreement, such as providing Participant with logo recognition on certain Festival-related mater The Festival will not use Participant’s Marks for any purpose other than those set forth in the Agreement. Participant must complete an “Brand Marketing Form” (found here: https://corporate.sobewff.org/forms/2023-sobewff-sponsor-brand-marketing-form/) upon execution of the Agreement in order to receive any such benefits which are still available to Participant. Should Participant desire to use the Festival’s marks and/or logos (“Festival Marks”) for the purpose of leveraging its relationship with the Festival, Participant should contact the Festival for access to the Festival Marks. Any Festival Marks provided to Participant will be provided on a limited, non-exclusive, revocable, unassignable, royalty-free basis for the duration of the 2023 Festival, and all rights and privileges granted shall immediately expire by July 1, 2023, or upon the termination of the Agreement, whichever is earlier.
3. Acknowledgement Guidelines. Participant shall be entitled to acknowledge its relationship with the Festival, provided that the acknowledgement does not contain comparative or qualitative descriptions of Participant’s products or services or any descriptions, depictions or displays which are not value-neutral.  Pre-approved acknowledgments include: (a) “A proud participant at the 2023 Grand Tasting Village for the Food Network South Beach Wine & Food Festival presented by Capital One”; (b) “[Participant] is honored to exhibit at the 2023 Grand Tasting Village for the Food Network South Beach Wine & Food Festival presented by Capital One”; (c) “[Participant] is honored to support SOBEWFF®”; or (d) “[Participant] is honored to support the 2023 Food Network South Beach Wine & Food Festival®”.  Participant must get pre-approval from the Festival to use any other acknowledgements.
4. Payment. All payments due from Participant shall be in the form of wire transfer, check, credit card or other charge card payments and shall be due within thirty (30) days of execution of the Agreement (the “Due Date”). If paying by check, the check should be made payable to “Florida International University” and mailed to the address provided in the Notices section hereof, with “SOBEWFF Participant” in the memo line.  If Participant fails to make payment by the Due Date, Participant shall be immediately obligated to pay, in addition to the Participant fee, a late fee in the amount of three percent (3%) of the Participant fee in order to retain any Participant rights; alternatively, Festival shall be entitled, in its sole discretion, to cancel the Agreement.  Participant shall not be permitted to access the 2023 Festival or the Event(s) unless and until full payment is received by the Festival.  NO REFUNDS WILL BE GRANTED FOR ANY REASON.  If the Festival is paying Participant, Festival will make payment in accordance with FIU Regulation 2202 entitled “Prompt Payment.”  Participant shall submit bills for compensation in sufficient detail for a pre-and post-audit.  The Festival’s performance and obligation to pay under the Agreement is contingent upon the legislature’s annual appropriation.  Contractors experiencing payment problems may contact the Vendor Ombudsman at (305) 627-1266.  The Festival may require Participant to accept payments due to it via the Festival’s EFT/ACH payment process.  The Festival cannot make deposits or prepay any amounts; any deposits made by Festival are refundable.
5. Loss/Theft. Participant is solely responsible for the security of all goods, property, equipment, materials, product or any other items (“Participant’s Property”) that it or its contractors, agents, or other representatives bring to the F The Festival shall have no obligation or liability whatsoever for any loss, misplacement or theft of Participant’s Property unless such loss, misplacement or theft directly arises from the Festival’s willful misconduct.
6. Recordings. Participant hereby grants the Festival the right and license to publish, print, display, record and use (by photograph, film, tape, aural devices and any other method or device) the Participant’s, and all of its credentialed employees’ and guests’, name, voice, image and likeness while at the Festival (the “Recordings”), and use such Recordings for any and all purposes, in any and all media now known or hereafter devised.  No cameras or recording devices are permitted at the Festival, except as approved in advance by the Festival.
7. Compliance. The parties shall comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all other governmental requirements, in performing under the Agreem  Participant acknowledges and agrees that Participant has and will at all times maintain all applicable governmental permits, licenses, consents, and approvals necessary to perform its obligations under the Agreement.  If Participant is exhibiting/serving/supplying alcohol, Participant warrants and represents that: (a) the Agreement is entered into solely for the marketing and promotional rights described herein and that Participant’s rights hereunder are in no way conditioned on any agreement or understanding that any person, firm or company affiliated with or otherwise related to the Festival will be required to purchase or sell any alcohol beverage produced, sold, offered for sale or served by Participant or refrain from purchasing, selling or serving any competing products; (b) Participant does not agree, expect, or intend to induce the purchase of any alcohol beverage produced, sold or offered for sale by Participant; (c) that Participant has no agreement with any alcohol beverage retail licensee related to or respecting the Agreement; and (d) all tickets sold to as set forth in the Agreement to the various events are for the benefit of the Festival only.  Participant acknowledges that any and all alcohol beverages donated in connection with the Event(s) that remain unused at the end of the Event(s) shall be immediately disposed of by Participant and/or removed from the Event Location(s) within Participant’s assigned breakdown time. Absolutely no alcohol beverages may remain at the Event Location after the assigned breakdown time.  Should the Participant wish to keep any unused product at the conclusion of the Event, it is the responsibility of the Participant to make arrangements in advance for any unused product to be removed from the site within the assigned breakdown time, and to clear those prior arrangements on site with the Festival’s Supplier Coordinator.  The Festival has no responsibility or liability to the Participant for any unused product once the Event has concluded. Festival policy does NOT permit the solicitation of on-site sales by any and all Festival Participants; no cash and carry activity will be permitted at any time.
8. Weapons-Free Policy. Possession of any dangerous article, including but not limited to, firearms, destructive devices, explosives, slingshots, weapons, tear gas guns, electric weapons or devices and fireworks, are expressly prohibited at the Festival in accordance with Florida Statutes Section 790.115, except as provided by Florida law. Participant agrees that this policy is in force, and agrees to comply with the policy, regardless of whether signs prohibiting weapons are posted on the premises of any official Festival Event.
9. Event Changes; Force Majeure. The parties agree that if the Festival or any of its event(s) is postponed or canceled by the Festival due to public health and/or safety concerns or if either party is delayed or unable  to fulfill or perform any of the terms or obligations under this Agreement (except for Participant’s payment obligations) when and to the extent such failure or delay is caused by or results from the force majeure events, as defined herein (“Force Majeure Events”), neither party shall be liable or responsible to the other, nor be deemed to have defaulted under or breached this Agreement for any such delays, suspensions, damages, or failure to fulfill or perform any of the terms or obligations under this Agreement.  Force Majeure Events shall mean any circumstance or event beyond the reasonable control of the party unable to perform and which could not have been prevented or avoided by the exercise of due diligence, prudence, or the adoption of reasonable precautions, such as, including but not limited to: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) any federal, state or local government law, order, or regulation, order of any court or jurisdiction, (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) public health emergencies, including,  but not limited to, as a result of epidemics and pandemics; and (j) other events beyond the reasonable control of the party impacted by the Force Majeure Event. The party affected by the events outlined herein (the “Impacted Party”) shall give a written notice of such event to the other party. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party is unable to fully perform under this Agreement as a result of the Force Majeure Event or other event as outlined herein (even through alternate means), the parties shall first negotiate changes to this Agreement in good faith to address the changes in circumstances in a fair and equitable manner. In the event that the parties cannot agree to new terms during negotiations, either party may terminate this Agreement upon written notice to the other party. Notwithstanding anything to the contrary stated herein, the parties agree that should the Agreement be terminated, the Festival shall be under no obligation to provide a refund or pay to the Participant, and any payments made to the Participant shall be returned to the Festival within 10 business days after the receipt of request from the Festival.
10. 1. Risk, Indemnification & Insurance. Participant assumes all risk with respect to the willful or negligent acts or omissions of Participant and its subcontractors, agents, or persons otherwise acting or engaged to act at the instance of Participant.  Participant shall indemnify, defend and hold harmless the Festival, FIU, the Florida Board of Governors, the State of Florida, and their respective directors, officers, agents and employees, from and against any and all damages, losses and all claims, counterclaims, suits, demands, actions, causes of action, setoffs, liens, attachments, debts, judgments, liabilities or expenses including, without limitation, attorney’s fees and legal costs, by reason of any claim, suit or judgment arising or alleged to arise from, or relating to: (1) any breach by Participant of any term or

    provision of this Agreement; (2) any negligent acts or willful misconduct of Participant, its employees, agents, representatives, contractors or subcontractors; (3) Participant’s participation with the Festival;

    or (4) any claim or liability involving fraud, misrepresentation, copyright or trademark infringement in connection with Participant’s Marks and/or name displayed pursuant to the Agreement.  Participant shall, at minimum, have and maintain the types and amounts of insurance that cover the Participant, and if applicable, its subcontractor(s)’ exposure in performing the Agreement.  The Festival is not liable for the acts of third parties or the consequences of the acts of third parties.  These obligations shall survive the expiration or earlier termination of the Agreement.

11. Notices. Any notices to be made hereunder shall be made in writing and shall be sent by hand delivery, email, courier or certified United States mail, with postage pr  Notices to the Participant shall be sent to the address on the application.  Notices to the Festival shall be sent to: Florida International University c/o South Beach Wine & Food Festival HQ, 2105 N. Miami Avenue, Miami, FL 33127; Attn: Ashley Shapiro, Associate Director.
12. Drafting. No provision of this Agreement shall be interpreted for or against any party on the basis that such party was the draftsman of such provision, 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.
13. Law; Representations. The Agreement shall be construed and governed in accordance with the laws of the State of Florida and any dispute arising hereunder shall be resolved in the state courts located in Miami-Dade County, Florida. Nothing shall be construed as the Festival’s indemnification of Participant or as a waiver of sovereign immunity.  Participant is an independent contractor and neither Participant or Participant’s employees, agents or other representatives shall be considered Festival employees or agents.  The Agreement does not and is not intended to confer any rights or remedies to any party other than the parties to the Agreement.  Participant acknowledges that no branding or benefits relating to the Festival shall be made available to any entity other than Participant, except upon the Festival’s advance written approval.
14. Entire Agreement. The Agreement sets forth the entire understanding between the parties and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof.  The Agreement may not be waived, modified or amended except by the mutual written agreement of the parties hereto.  The Agreement may be signed electronically and such electronic signatures shall be deemed an original for all purposes.  The parties represent and warrant that any person signing the Agreement has the authority to do so and that such signature shall be sufficient to bind the respective party under the Agreement.  The Agreement may not be executed in counterparts. Facsimile signatures hereon shall be deemed original for all purposes. In the event that any provision of the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be ineffective as to such jurisdiction solely to the extent necessary to render such provision valid, legal and enforceable, and without invalidating or affecting the remaining provisions hereof or affecting the validity, legality or enforceability of such provisions in any other jurisdiction.  The Festival is subject to applicable public records laws as provided by provisions of Florida Statutes Chapter 119.  The Agreement and/or correspondences and any related records Participant submits to the Festival shall become a public record subject to the Public Records Law.  The Agreement shall continue through and including July 1, 2023, unless otherwise terminated pursuant to the terms of the Agreement.
15. E-Verify. All terms defined in §448.095, Fla. Stat., are adopted and incorporated into this provision. Pursuant to §448.095, Fla. Stat., Participant certifies that it is registered with and uses the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the Participant during the term of this Agreement. If Participant enters into a contract with a subcontractor to perform work or provide services pursuant to this Agreement, Participant shall likewise require the subcontractor to comply with the requirements of §448.095, Fla. Stat., and the subcontractor shall provide to Participant an affidavit stating that the subcontractor does not employ, contract with or subcontract with an unauthorized alien. Participant shall maintain a copy of such affidavit for the duration of the Agreement. The Festival may terminate this Agreement immediately upon notice to Participant for any violation of this provision.