These Commercial Terms and Conditions (these "Terms and Conditions") shall govern the provision of services by Kapow Events, Inc. ("Kapow") hereunder, which services may include connecting a client (each a "Client") with venues (each a "Venue") where an event (each an "Event") will be held, providing an event marketplace, (the "Marketplace"), and facilitating the organization, planning and managing of events for Clients, with each event as is expressly set forth in the Event Details (defined below) (collectively, the "Services").
Client may select from event packages on the Marketplace which provide all relevant event details, including, as applicable, pricing, venue information, menus, minimum and maximum number of event guests, event times, entertainment and any other relevant event details (the "Event Details"). Once Client has completed the checkout process such Event shall become subject to such Event Details and these Terms and Conditions (collectively, these Terms and Conditions and the Event Details are referenced herein as the "Terms").
During the checkout process Client shall provide Kapow with the number of event guests (the "Event Guests"). Each Event will have a minimum number of Event Guests and a maximum number of Event Guests. Client will be charged for at least the number of Event Guests provided at checkout, regardless of the actual number of Event Guests who attend the Event. A decrease in the number of Event Guests post-checkout is subject to the cancellation terms set forth in Section 6 below. Kapow shall use commercially reasonable efforts to accommodate post-checkout requests to increase the number of Event Guests, if such request is received at least eight (8) days prior to the Event, but cannot guarantee the same. If Kapow agree to any increase in the number of Event Guests, such increase is not be confirmed until Kapow receives payment for such increase. Kapow's inability to accommodate an increase in the number of Event Guests is not grounds for a termination or cancellation of the Event. Client shall pay the Venue directly (i) for any increase in the number of Event Guests requested on the day of or at the Event (provided the Venue can accommodate the same) and (ii) any other post-checkout adjustments to the Event Details requested by Client and accommodated by the Venue, as determined by the Venue in its sole discretion, on the day of or during the Event (collectively, "Incidentals"). Such Incidentals may include, but are not limited to, additional food items, event duration, beverages not included in the Event Details and use of onsite AV. Kapow will not accept any changes to the Event Details of an Event, other than (x) a change in the number of Event Guests as provided in this section and (y) only to the extent the Venue agrees to accommodate the same. Notwithstanding the foregoing, an Event time or date may only be rescheduled in accordance with Section 7 below.
In connection with its booking of an Event, Client acknowledges that it has reviewed and therefore agrees to these Terms. Client agrees to bring a valid credit card to the Event to present to the Venue for any charges related to Incidentals incurred by Client at the Event. Client is solely responsible and liable for its actions and the actions of its Event Guests at the Event and for its compliance and compliance by its Event Guests with: (a) all Venue rules, restrictions and requirements, including any applicable dress code, date and time, audiovisual, loading and unloading, and security restrictions and requirements, and (b) all applicable laws, including but not limited to laws relating to the sale or serving of alcohol and laws related to the use of music at any Event. If the Venue, any caterer or any other person stops serving alcohol because in their sole judgment they have reasonably determined that it is not responsible to continue such service, such stoppage does not necessitate or obligate any refund. If Kapow will be managing invitations for the Event, Client shall provide Kapow with such information as is reasonably required by Kapow in connection with such invitation management. All invitations and any related promotional materials with respect to the Event shall be subject to any applicable Venue, entertainer or any other similar requirements or restrictions. At the conclusion of an Event, Client shall, and Client shall cause its Event Guests to, leave the Venue where the Event occurred on or before the Event ending time or if no ending time is set forth in the Event Details, promptly after the conclusion of the Event. Any media coverage of the Event is subject to the advance written approval of the Venue. Kapow is not responsible for any packages sent to any Venue for use at an Event and delivery of such packages shall be subject to any applicable Venue requirements and restrictions. Neither the Venue nor Kapow makes any representation or warranty regarding use of any portion of the Venue not reserved for the Event (which may be used by any person or entity regardless of the nature of the use and whether such other use may involve music, audio visual presentations, or other elements). The occurrence of other events at the Venue (unless Client has exclusively reserved the entire Venue) are not suitable grounds for cancellation or non-payment and does not necessitate or obligate any refund. The Venue where the Event is occurring may take any actions necessary in their reasonable judgment to protect the health, safety and welfare of their employees, agents, Event Guests and other Venue guests, customers and the public, including, asking guests who do not follow applicable rules to leave the Event, restricting access to the Event, and monitoring the Event room for capacity and crowd control and no such actions entitle Client to any form of reimbursement, refund or compensation. Client and its Event Guests must follow all instructions and requests issued by Venue security and staff. Neither the Venue nor Kapow is responsible for personal items and other articles lost, stolen, damaged prior to, during, or following the Event, or personal items and other articles left over night at the Venue. Client shall not sell tickets for admission to the Event. Client shall not operate any equipment or materials belonging to the Venue or any service providers. No signage is allowed at or around the Venue, without written advance approval from the Venue.
Client shall pay Kapow in the amounts, at the rates, and on the terms set forth in the relevant Event Details, as supplemented by the charges related to any change in headcount or other post-checkout adjustment pursuant to Section 3 hereof, if any. If not otherwise specified in the Event Details or on a particular invoice, then 100% of the total Event cost is due at checkout. Until such payment or any deposit described in the Event Details or on a particular invoice has been received there can be no assurance that the Event date or Venue has been secured or reserved. Until payment in full has been received there can be no assurance that the Event will occur. Any invoices not paid when due shall be subject to a late fee of 1.5% per month or the maximum rate permitted by law, whichever is less. If Client fails to make any required payments (each a "Payment Failure"), Kapow shall have the right to suspend or terminate the Services, cancel the Event, and/or forfeit the planned Event date until such payment is made, including seeking collection of all amounts due, including Legal Costs (as defined below). A Payment Failure shall be treated as a Cancellation (as defined below). If Client makes a late payment, Kapow will use commercially reasonable efforts to provide Client with the Event as set forth in the Event Details, but will not guaranty the same. If there are multiple Clients making payments for an Event, 100% of the total Event costs must be paid before the Event date or Venue has been secured or reserved. Any funds provided to Kapow for the purpose of creating a retainer for Client are non-refundable and shall remain in Client's Kapow account until such funds are used.
If Client provides written notice to Kapow that it intends to cancel an Event or as provided in Section 5 fails to rectify a Payment Failure (each a "Cancellation"), Client shall not be entitled to a refund of any amounts paid by Client for such Event. Unless the Event Details provide that an Event is non-cancellable or final sale, following a Cancellation Client shall be entitled to a credit for a future Kapow Event (a "Kapow Credit") in an amount equal to: (a) if Client notifies Kapow of the Cancellation and Kapow receives a Cancellation Confirmation (as defined below) at least 30 days before the date of a scheduled Event, and Client has paid more than 50% of the total Event cost prior to the Cancellation, a Kapow Credit equal to the amount paid by Client that exceeds 50% of the total Event cost, and (b) if Client notifies Kapow of the Cancellation and Kapow receives a Cancellation Confirmation less than 30 days but more than 14 days before the date of a scheduled Event, and Client has paid more than 75% of the total Event cost prior to the Cancellation, a Kapow Credit equal to the amount paid by Client that exceeds 75% of the total Event cost. No Kapow Credit shall be issued other than in accordance with the preceding sentence, including, without limitation, if (i) Client notifies Kapow of the Cancellation 14 days or less before the date of the scheduled Event or (ii) the Event Details provide that an Event is non-cancellable, final sale or subject to the Kapow's Ticket Policy. The amount of any cancellation fee is not a penalty and represents a reasonable estimate of the damages sustained by Kapow in connection with the Cancellation, which actual damages would be uncertain in amount and difficult to determine. An Event is considered canceled only after Client has received a written cancellation confirmation (including by email) from Kapow or, as provided in Section 5, in the case where Client fails to rectify a Payment Failure (each a "Cancellation Confirmation"). Kapow may apply any funds previously paid to it by Client or on deposit or retainer with Kapow (whether for the specific Event or any other events purchased by such Client) to offset any cancellation fee or any fees, costs and expenses due to Kapow or any Venue. If Kapow provides Client notice that it is unable to proceed with the Event because of an event of force majeure, including any reason or circumstance beyond Kapow's reasonable control, Kapow shall not be deemed to be in breach in its performance of any obligation under these Terms and shall, at Kapow's option, either: (1) refund to Client any fees for Services yet to be performed hereunder which were prepaid by Client or if no fees were paid, allow Client to cancel the Event without payment of any cancellation fee hereunder, subject to any special conditions agreed to by the Client for specific Event requests, or (2) reschedule such Event or subject to Client’s approval, provide a comparable substitute event to the Event (provided that Client shall pay any increased costs arising out of such comparable substitute event).
If Client provides written notice to Kapow that it intends to cancel an Event ("Cancelled Event") and indicates at the time of cancellation that it desires to reschedule the Event with the same Venue as the Cancelled Event at a different time and/or date ("Rescheduled Event"), the Kapow Credits provided to Client in connection with the Cancelled Event, if any, may be used for the Rescheduled Event. In certain circumstances, Kapow may issue additional credits to Client in connection with rescheduling of a Cancelled Event ("Additional Kapow Credits") apart from the Kapow Credits Client may be eligible to receive for the Cancellation as provided in Section 6, if any. Additional Kapow Credits are tied to the Cancelled Event for which they were issued and may only be applied to the cost of a Rescheduled Event for that Cancelled Event. Any Additional Kapow Credits will be issued in Kapow’s sole discretion and the availability and amount of Additional Kapow Credits, if any, may depend on the policies of the Venue for the Cancelled Event, among other things. Client acknowledges and agrees that Client is not entitled to, and Kapow is not obligated to provide, any Additional Kapow Credits in connection with Client rescheduling any Cancelled Event. Any Rescheduled Event will be subject to the following conditions ("Rescheduling Conditions"): (a) the date and time of the Rescheduled Event will be subject to the availability and approval of the Venue; (b) Client and the Venue must prior to the date that is thirty (30) days after the date of the Cancelled Event, agree upon a date and time for the Rescheduled Event; and (c) the date of the Rescheduled Event must be at least seven (7) days after the date of the Cancelled Event and no more than ninety (90) days after the date of the Cancelled Event. Each time an Event is rescheduled by Client, other than first time an Event is rescheduled, Client shall be charged a rescheduling fee equal to an amount that is 20% of the total Event cost not including taxes and gratuity ("Rescheduling Fee"). The Rescheduling Fee will become due upon Client’s booking of the Rescheduled Event. The amount of any Rescheduling Fee is not a penalty and represents a reasonable estimate of the damages sustained by Kapow in connection with rescheduling an Event, which actual damages would be uncertain in amount and difficult to determine. In the event that any of the Rescheduling Conditions are not met with respect to rescheduling an Event, any Additional Kapow Credits issued for Client’s use in connection with such Event rescheduling will automatically expire. For the avoidance of doubt, any Event that may not be cancelled also may not be rescheduled, including, without limitation, if the Event Details provide that an Event is non-cancellable, final sale or subject to the Kapow Ticket Policy.
Kapow and Client each represent, warrant and covenant to each other that: (a) the person agreeing to the Terms on behalf of such party is authorized to cause such party to be bound to the Terms, and (b) these Terms are duly authorized, executed and delivered and constitute a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws of general application relating to or affecting creditors' rights and general principles of equity.
By placing a telephone order through a Kapow representative, Client shall be bound by the Terms, including the representations and warranties set forth in Section 8.
All ideas, proposals, concepts, content, materials, works and deliverables presented by Kapow or otherwise developed or produced by Kapow hereunder, including any works that might be deemed to be derivative works of works owned by Client, but specifically excluding any Client owned intellectual property (collectively, the "Kapow Content") are and shall remain the exclusive property of Kapow and Kapow retains all rights regarding the same, including, the sole right to implement, use, publish, perform and/or publicly disseminate the Kapow Content. Without Kapow's prior written consent, Client shall not use any Kapow Content.
EXCEPT AS EXPRESSLY STATED HEREIN, KAPOW MAKES NO REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY OF THE SERVICES AND THE KAPOW CONTENT. WITHOUT LIMITING THE FOREGOING, NOTHING IN THESE TERMS SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY KAPOW OF THE SAFETY, SUITABILITY, FUNCTIONALITY OR USEFULNESS OF ANY OF THE SERVICES OR THE KAPOW CONTENT.
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, KAPOW SHALL NOT HAVE ANY LIABILITY TO CLIENT, ANY EVENT GUEST OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY CLAIMS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, JUDGMENTS, INTEREST, FINES, PENALTIES, COSTS AND EXPENSES OF ANY KIND OR NATURE (COLLECTIVELY, "LOSSES") SUSTAINED OR INCURRED BY OR ASSESSED OR ASSERTED AGAINST OR IMPOSED UPON CLIENT, ANY EVENT GUEST OR ANY OTHER PERSON, INCLUDING FOR LOSSES ARISING OUT OF OR CAUSED BY ANY VENDOR OR OTHER SERVICE PROVIDER AT OR IN CONNECTION WITH AN EVENT, UNLESS SUCH LOSSES ARE SOLELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A KAPOW EMPLOYEE AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER. IF, FOR ANY REASON, THE FOREGOING LIMITATION IS FOUND TO BE INVALID OR UNENFORCEABLE, CLIENT, EVENT GUEST AND EACH OTHER PERSON AGREES THAT THE SOLE AND TOTAL LIABILITY OF KAPOW SHALL BE LIMITED, IN THE AGGREGATE, TO THE LESSER OF: (1) THE NET AMOUNT RETAINED BY KAPOW WITH RESPECT TO THE EVENT; OR (2) ONE THOUSAND DOLLARS ($1,000). NEITHER PARTY TO THIS AGREEMENT SHALL HAVE ANY LIABILITY TO THE OTHER PARTY WITH RESPECT TO ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER SUCH CLAIM OR ACTION IS BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE. EACH PARTY AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FAIR AND REASONABLE UNDER THE CIRCUMSTANCES.
THE PARTICIPATION OF CLIENT AND ITS EVENT GUESTS IN THE EVENT IS VOLUNTARY AND FOR THEIR SOCIAL ENJOYMENT. CLIENT RECOGNIZES AND HAS INFORMED ITS EVENT GUEST THAT PARTICIPATION IN THE EVENT MAY INVOLVE RISKS AND DANGERS, INCLUDING, RISKS OF PERSONAL INJURY OR DEATH, PROPERTY LOSS, RISKS RELATED TO CONSUMMATION OF FOOD OR DRINK AND FIRST AID AND EMERGENCY TREATMENT, AND CLIENT FREELY ASSUMES ALL SUCH RISKS, INCLUDING ANY UNFORESEEN RISKS. TO THE FULLEST EXTENT PERMITTED BY LAW, CLIENT WAIVES ALL CLAIMS, FOREVER RELEASES AND PROMISES NOT TO SUE KAPOW FOR ANY AND ALL LOSSES RELATED TO OR ARISING FROM ITS PARTICIPATION IN THE EVENT BY CLIENT, ANY EVENT GUESTS AND ANY OTHER PERSONS AND INTENDS THAT THIS RELEASE IS INTENDED TO BE A COMPLETE AND UNCONDITIONAL RELEASE. CLIENT HAS READ THIS ASSUMPTION OF RISK AND RELEASE PROVISION, FULLY UNDERSTANDS ITS TERMS AND AGREES THAT IT HAS FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE AGREED TO THIS RELEASE PURSUANT TO WHICH IT HAS GIVEN UP SUBSTANTIAL RIGHTS.
To the fullest extent not prohibited by applicable law: (a) Client agrees to indemnify, hold harmless and defend Kapow and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns (collectively, "Kapow Indemnified Persons") from and against any and all Losses and costs and expenses (including reasonable attorneys' fees and all other expenses of investigation and defense (collectively, "Legal Costs")), arising out of, relating to, resulting from or in connection with: (i) any breach or violation of any term, condition, obligation, duty, representation, warranty or covenant of Client set forth herein and (ii) any acts or omissions of Client or any Event Guest hereunder, including the death of or any injury to any person or any damage to any real or personal property (all of the foregoing collectively, "Claims") and (b) Kapow agrees to indemnify, hold harmless and defend Client and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns (collectively, "Client Indemnified Persons") from and against any and all Losses, arising out of, relating to, resulting from or in connection with: (1) any breach or violation of any term, condition, obligation, duty, representation, warranty or covenant of Kapow set forth herein, and (2) any acts or omissions of any Kapow employee hereunder, including the death of or any injury to any person or any damage to any real or personal property (all of the foregoing collectively, "Client Claims"). If any third party notifies any party hereunder (the "Indemnified Party") with respect to any Claim or Client Claim, as the case may be (each, a "Third-Party Claim") that gives rise to a claim for indemnification hereunder (the "Indemnifying Party"), then the Indemnified Party shall promptly notify the Indemnifying Party in writing and the Indemnifying Party has the right to assume the defense of such claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 30 days after the Indemnified Party has given notice of such claim. The Indemnifying Party must actively and diligently conduct the defense of the Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and participate in the defense of the Third-Party Claim. If the Indemnifying Party has assumed and is conducting the defense of the Third-Party Claim in accordance with the provisions hereof, the Indemnifying Party will not consent to the entry of any judgment or any settlement without the consent of the Indemnified Party, not to be unreasonably withheld. If the Indemnifying Party does not assume and conduct the defense, the Indemnified Party may defend the claim in any manner it deems appropriate and the Indemnifying Party will be responsible for any Losses of the Indemnified Party hereunder.
Except as is otherwise provided in the Event Details, Client is responsible for payment of any taxes with respect to any Event, including any amusement or similar taxes. If Client is a not for profit organization and is exempt from sale, use or any similar taxes and has furnished to Kapow evidence of the same, including its tax exempt certificate, then and only then shall Client be exempt from such sale, use or any similar taxes as permitted by applicable law. Until Kapow has received such evidence as is reasonably requested by Kapow with respect to such exemption, Client shall be responsible for the payment of all sale, use or any similar taxes.
All prior understandings and agreements, oral or written, between the parties in connection with the subject matter of these Terms are merged into these Terms, which Terms fully and completely express the agreement between the parties. Any terms contained in any document which has been or may in the future be supplied by Client which are in addition to, different from, or inconsistent with the terms hereof are null and void unless mutually agreed to in writing, whether such terms are set forth in Client's terms, invoices, acknowledgments or otherwise. Neither these Terms nor any of the covenants, terms or conditions of these Terms, shall be waived, modified, or abandoned, except by a written instrument, duly signed, acknowledged and delivered by the party against which such waiver, modification or abandonment is being asserted. No terms, provisions or conditions or any ambiguity of these Terms shall be construed against Kapow because it drafted these Terms. These Terms have been and are made solely for the benefit of Client, Kapow, the parties indemnified hereunder, and their respective successors and assigns and without limiting the foregoing, the Venue and/or merchant actually providing the Services are intended third party beneficiaries of Sections 12 (Limitation of Liability), 13 (Assumption of Risk and Release) and 14 (Indemnification) of these Terms and shall have the right to enforce the same with regard to Client or its Event Guests as if they were a party to these Terms. Nothing herein shall be construed so as to constitute a party a partner, joint venturer, agent or representative of the other party for any purpose whatsoever. If any provision of these Terms shall be declared invalid or unenforceable, such provisions shall be enforced to the maximum extent possible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. All sections of these Terms shall survive the termination of these Terms. The delay, default or failure of either party to enforce or to require performance by the other party of any of the provisions of these Terms, shall not be construed to be a present or future waiver or affect the ability of either party to enforce any such provision thereafter. The rights and obligations of Client under these Terms may not be assigned without the prior written consent of Kapow. Kapow shall have the right and power to assign, transfer, sublicense or delegate any rights or obligations hereunder without notice to or consent of Client. Any notices or other communications required or permitted hereunder shall be in writing and delivered to a party personally, by e-mail (provided that a copy of such notice is also sent on the same date by overnight mail), or by overnight mail, addressed to such party as provided in these Terms. Any notice to Kapow shall be sent to: Kapow Events, Inc., 205 West Wacker Drive, Suite 1200, Chicago, Illinois 60606, Attention: Chief Financial Officer and any notice to Client shall be sent to the address provided in the Event Details. Each party may specify a different address by delivering notice as aforesaid to the other party. Any ticket sales shall be subject to Kapow's Ticket Policy, and any rewards offered by Kapow arising out of or in connection with any Event shall be subject to Kapow's Reward Terms, each as the same is amended, supplemented, and modified from time to time.
This Agreement and all matters arising out of, relating to or in connection with this Agreement or the relationship of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any choice of law or conflict of law rules or provisions. If either party institutes a suit against the other party to enforce or declare any of its rights under this Agreement, the prevailing party in such action shall be entitled to recover from the other party all Legal Costs thereof. As used herein, the term "prevailing party" means that party whose position is substantially upheld in a final judgment rendered in any litigation, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY DISPUTES ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THESE TERMS OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
Last Revised: May 4, 2017