These Commercial Terms and Conditions are between Kapow Events, Inc. ("Kapow") and the client purchasing services from Kapow as identified on the Event checkout page ("Client"). The parties agree as follows:
Kapow connects its clients with venues, vendors, merchants and other event related service and product providers (each a "Merchant"), provides an event marketplace, (the "Marketplace"), and facilitates the organization, planning and management of events (each, an “Event”) for its clients (collectively, "Services").
Client may select from Event packages on the Marketplace which provide all of the 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"). For Event packages not list on the Marketplace, the Event Details are those provided by Kapow in writing related to the Event. Once Client has completed the checkout process, the Event is subject to the Event Details and these Commercial Terms and Conditions (collectively, the "Terms").
During the checkout process Client shall provide Kapow with the number of 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 or other post-checkout adjustments may, at Kapow’s sole discretion, be subject to the cancellation and rescheduling terms set forth in Section 6 and Section 7 below. Kapow shall use commercially reasonable efforts to accommodate post-checkout requests to increase the number of event guests, but cannot guarantee the same. If Kapow agree to any increase in the number of event guests, such increase will 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 cancellation of the Event. Client shall pay the Merchant directly (i) for any increase in the number of event guests requested on the day of or at the Event (provided the Merchant can accommodate the same) and (ii) any other post-checkout adjustments to the Event Details requested by Client and accommodated by the Merchant, as determined by the Merchant 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. Notwithstanding anything to the contrary, 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 the Terms. Client agrees to bring a valid credit card to the Event to present to the Merchant 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 and for its compliance and compliance by its event guests with: (a) all Merchant 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 Merchant, 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 Merchant, entertainer or any other similar requirements or restrictions. Unless otherwise agreed to by the venue Merchant, 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 Merchant. Kapow is not responsible for any packages sent to any Merchant for use at an Event and delivery of such packages shall be subject to any applicable Merchant requirements and restrictions. Neither the Merchant nor Kapow makes any representation or warranty regarding use of any portion of the Merchant 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 Merchant (unless Client has exclusively reserved the entire Merchant) are not suitable grounds for cancellation or non-payment and does not necessitate or obligate any refund. The Merchant 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 Merchant guests, customers and the public, including, asking event 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 Merchant security and staff. Neither the Merchant 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 Merchant. Client shall not sell tickets for admission to the Event. Client shall not operate any equipment or materials belonging to the Merchant or any service providers. No signage is allowed at or around the Merchant, without written advance approval from the Merchant.
Client shall pay Kapow in the amounts, at the rates, and on the terms set forth in the relevant Event Details and invoices, as supplemented by the charges related to any change in headcount or other post-checkout adjustment pursuant to Section 3. Except as otherwise agreed by the parties in a signed writing or in the Event Details, payment for the Event is due at checkout and any amounts specified by Kapow as not yet due at checkout are due no later than 14 days prior to the Event date. Notwithstanding any partial prepayment, retainer or deposit, an Event is deemed reserved and secured, and will remain reserved and secured, only if full Event cost payments are made by the dates they are due. If any amount is not paid by the date it is due (each, a "Payment Failure"), then such amount is subject to a late fee of 2% per month or the maximum rate permitted by law, whichever is less, and Kapow may, at Kapow’s sole option: (i) suspend or terminate the Services, (ii) cancel the Event, (iii) forfeit the planned Event date, and (iii) seek collection of all amounts due, including but not limited to Legal Costs (as defined below).
Refunds. Unless the Event Details provide that an Event is non-cancellable, final sale or subject to the Kapow's Ticket Policy, by 11:59 PM Central Time on the next business day following the purchase of an Event, provided that the booking was made at least 7 days prior to the date of the Event, Client may request to cancel an Event and receive a refund by emailing Client’s Kapow representative, and if Kapow approves the cancellation and refund in writing to Client, then Client will receive a 100% refund of the total price paid for the Event, in the original form of payment. Except for the foregoing, all prepaid amounts, including but not limited to partial payments, retainers and deposits, are non-refundable.
Kapow Credits. Unless the Event Details provide that an Event is non-cancellable, final sale or subject to the Kapow's Ticket Policy, Kapow will use its reasonable best efforts to mitigate Client’s out-of-pocket prepaid costs for a cancelled Event, including but not limited to deposits, by seeking refunds of all amounts prepaid to Merchants by Kapow for Client’s cancelled Event, and remitting those prepaid amounts to Client in the form of a credit to be used towards future Kapow Events (“Kapow Credit”). Kapow Credit is equal to the amount Kapow recovered from the Venue for the cancelled Event, minus the cancellation fee owed to Kapow for the provision of Kapow’s preparation Services, which is 20% of the total price of the cancelled Event excluding taxes and gratuity, plus any remaining amounts paid by Client for the Event (the “Cancellation Fee”). Kapow Credits expire twelve (12) months from the date of issuance. Client acknowledges that each Merchant maintains its own cancellation policy, amounts paid for Events cancelled closer to Event dates are less likely to be recoverable, some Merchants may not allow any refunds regardless of cancellation dates, and Kapow does not guarantee any prepaid amounts will be recovered. If the amount Client prepaid for a cancelled Event is less than the Cancellation Fee owed, then Client will pay Kapow for the remaining Cancellation Fee amounts owed, due upon receipt of invoice. Kapow may apply any prepaid amounts, including but not limited to partial payments, retainers and deposits, whether for the cancelled Event or any other Event purchased by Client, to offset Cancellation Fees owed to Kapow.
Force Majeure. If Kapow provides Client notice that it is unable to proceed with the Event because of an event of force majeure, including but not limited to if a Merchant is double booked or otherwise unavailable at the time of Client booking, or any other reason or circumstance beyond Kapow's reasonable control, including any act of God, criminal acts, Distributed Denial of Service, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by Client, its employees, agents, or contractors, then Kapow will 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 amounts prepaid by Client for the Event, or (2) reschedule the Event or, subject to Client’s approval, provide a comparable substitute Event (provided Client pays any increased costs arising out of such comparable substitute Event).
Unless the Event Details provide that an Event is non-cancellable, final sale or subject to the Kapow's Ticket Policy, if Client provides written notice to Kapow that it intends to cancel an Event and indicates at the time of cancellation that it desires to reschedule the Event with the same Merchant as the cancelled Event, but at a different time and/or date ("Rescheduled Event"), then Kapow may reschedule the Event without Client incurring a Cancellation Fee, subject to the following conditions: (a) the date and time of the Rescheduled Event is subject to the availability and approval of the Merchant; (b) Client and the Merchant, within thirty (30) days after the date of the cancelled Event, agree upon a date and time for the Rescheduled Event; (c) the date of the Rescheduled Event is within ninety (90) days of the date of the cancelled Event; and (d) the Event was not already a Rescheduled Event. Any reschedule request for an already Rescheduled Event is deemed a cancelled Event, and is subject to the Cancellation Fee.
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) the 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.
Client represents and warrants that it is not and will not utilize the Services for any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and Kapow may immediately terminate this Agreement.
By placing a telephone order through a Kapow representative, Client is bound by the Terms, including but not limited to 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.
Client shall not disclose to anyone any proprietary or confidential information of Kapow which it may receive through the Services, and it will not use any such information to compete against Kapow or reverse engineer our product offerings.
Client agrees that it will not copy, record, publish, compile, reproduce, republish, use or resell for any competing commercial purpose any Kapow Content. In addition, Client agrees to pay all reasonable attorney's fees and costs incurred in enforcing these provisions.
Client understands that Kapow is not the Merchant and the only warranties offered with respect to the Event Details are those of the Merchant, not Kapow. Kapow, as part of the facilitation Services it provides to Client, will utilize commercially reasonable efforts to enforce the warranties contained in the Event Details from the Merchant to Client, however, Client understands and agrees that Kapow is not liable in any way for any damage or responsibilities in warranting Client. In purchasing the Services, Client is relying on the Event Details only and is not relying on any statements, specifications, photographs or other illustrations that may be provided by Kapow. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE SERVICES AND KAPOW CONTENT ARE PROVIDED “AS IS,” AND KAPOW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, CORRESPONDENCE TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SECURITY.
KAPOW DOES NOT WARRANT THAT THE SERVICES OR KAPOW CONTENT WILL BE ERROR FREE, UNINTERRUPTED OR WILL MEET CLIENT’S REQUIREMENTS. CLIENT ACKNOWLEDGES THAT NO REPRESENTATIVE OF KAPOW IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY THAT IS NOT EXPLICITLY STATED IN SECTION ONE OR THE EVENT DETAILS.KAPOW DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
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 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 THE TERMS 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. These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.
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").
If a party or any third party notifies a party hereunder (the "Indemnified Party") with respect to any Claim or Client Claim, as the case may be 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 Claim or Client Claim. If the Indemnifying Party has assumed and is conducting the defense of the Claim or Client 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 the Terms are merged into the 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. The Terms shall not 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 the Terms shall be construed against Kapow because it drafted the Terms. The 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 Merchant is the intended third party beneficiary of Sections 13 (Limitation of Liability), 14 (Assumption of Risk and Release) and 15 (Indemnification) and shall have the right to enforce the same with regard to Client or its event guests as if they were a party to the 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 the 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 the Terms shall continue in full force and effect. All sections of the Terms shall survive the termination of the 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 the 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 the 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 the 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 with a copy to firstname.lastname@example.org 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.
The Terms and all matters arising out of, relating to or in connection with the Terms or the relationship of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without giving effect to any choice of law or conflict of law rules or provisions. All disputes and controversies arising out of or in connection with the Terms will be resolved exclusively in the state and federal courts located in Arlington in the Commonwealth of Virginia. Each party agrees to submit to the jurisdiction of such courts and agrees that Merchant will lie exclusively with such courts. If either party institutes a suit against the other party to enforce or declare any of its rights under the Terms, 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 THE TERMS OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
Last Revised: June 8, 2018