These Ticket Policy 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:
Except as is otherwise required pursuant to applicable law, after payment is received there are no refunds, exchanges, or cancellations, unless: (a) the ticketed event is cancelled, (b) the Client or its guests or invitees can not get into the event for reasons that may include, without limitation, that the ticket is counterfeit or that the ticket has been cancelled by the issuer due to non-payment (unless the ticket is cancelled due to an act or omission by the Client or its guests or invitees); (c) the ticket fails to conform to its description as presented by Kapow on its website; or (d) Kapow fails to deliver the tickets to the client and in any such case, Kapow will provide a refund equal to the total amount paid for the tickets, less a five percent (5%) service fee, provided that Client returns the tickets in person or by mail to: Kapow Events, Inc. 205 West Wacker Drive, Suite 1200 Chicago, Illinois 60606 Attention: Finance Department. Kapow may in its discretion, reasonably investigate the validity of a Client's refund claim prior to making such refund and further will not provide an exchange or refund after a purchase has been made or for lost, stolen, damaged or destroyed tickets.
Client agrees to abide and to cause each of its guests and invitees to abide by all rules and policies of the venue where the ticketed event occurs relating to conduct and behavior. Should the Client or any of its guests or invitees be ejected from the event for failure to abide by the venue's rules and policies, Client shall be subject to all applicable fines and legal or other expenses associated with the ejection. Further, should the ejection result in the loss of Kapow's right to use any other season tickets at that venue, or the right to purchase other tickets from that venue, Client shall be held liable for all reasonable costs, expenses, and losses associated with said loss.
Unless otherwise indicated, ticket prices stated on Kapow's website include any state or other local taxes that may apply. Kapow may, with notice as part of the sale, separately collect amusement, sales or any similar tax or charge as is required in the applicable location where the ticket is purchased or the event is held and in such event, Client agrees to pay all applicable taxes and charges with respect to any ticket purchase hereunder.
Kapow and Client agree binding arbitration held in Chicago, Illinois is the exclusive remedy for any controversy or claim arising out of or relating to these Terms or any alleged breach of these Terms and any such controversy or claim shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will be appointed by the American Arbitration Association in accordance with the then existing commercial arbitration rules of the American Arbitration Association. The arbitrator shall be experienced in handling disputes of the type presented herein. Consistent with the expedited nature of arbitration, each party will, upon the written request of the other party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim on which the producing party may rely in support of or in opposition to any claim or defense. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, which determination shall be conclusive. All discovery shall be completed within 45 days following the appointment of the arbitrator. Except as may be required by applicable law, the arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages and neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Any award issued through arbitration is enforceable in any court of competent jurisdiction. Arbitration is governed by Illinois law. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration.
To the extent permitted by applicable law, any arbitration or trial by a judge of any claim will take place on an individual basis without resort to any form of class or representative action ("Class Action Waiver"). Regardless of anything else in the arbitration provision set forth herein, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. Kapow and Client acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties' agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. Kapow and client user and site acknowledge and agree that under no circumstances will a class action be arbitrated.
To the fullest extent not prohibited by applicable law, Kapow shall not have any liability or obligation to client, any event guest or any other person for or on account of (a) any losses, liabilities, obligations, claims, demands, actions, suits, costs and expenses, damages, judgments or awards of any kind or nature (collectively, "losses") sustained by, or any losses incurred by or assessed or asserted against or imposed upon client, any event guest or any other person, or (b) any consequential, direct, indirect, incidental, special, exemplary or punitive damages or losses of any kind (including lost profits or any interruption of business) whether such claim or action is based in tort, contract, negligence, strict liability, statutory liability or otherwise, even if Kapow has been advised of the possibility of such losses, which in any manner, directly or indirectly, arises out of or relates to or is in connection with the ticket, any event, or any other losses incurred by client, any event guest or any other person. 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: (a) the net amount retained by Kapow with respect to the ticket purchase; or (b) one thousand dollars ($1,000). The parties each further agree that the foregoing limitation of liability is fair and reasonable under the circumstances and in consideration for the services provided hereunder.
In addition to its other obligations and hereunder, to the fullest extent not prohibited by applicable law, Client hereby agrees to fully 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 without limitation all reasonable attorneys' fees and expert's fees and expenses, and all other expenses of investigation and defense (collectively, "Legal Costs")), whether or not involving a third party claim, which arise out of or relate to or are in connection with any one or more of the following: (a) any actual or alleged breach or violation of any term or condition or obligation or duty of Client under these Terms; (b) any actual or alleged breach of any representation, warranty or covenant of Client set forth in these Terms; (c) the death of or personal injury to any person or damage to any real or personal property resulting from or allegedly resulting from Client or its guests or invitees attendance at any ticketed event or any acts or omissions, whether or not negligent, of Client or any event guest or invitee; or (d) any other claims arising out of or relating to these Terms (all of the foregoing collectively, "Claims"), in each case whether or not caused by the passive or active negligence of Kapow or any other Kapow Indemnified Person and whether or not the relevant Claim has merit. Kapow shall have the unilateral right and option at its sole election to undertake the control and defense and settlement or other disposition of any Claim made or brought by a third party subject to indemnification hereunder, with counsel of its choice, in which event Client shall advance and pay or reimburse Kapow for all of the Legal Costs then incurred by Kapow upon demand from time to time, provided however that (i) Client at its own expense may participate with Kapow in the defense of any such Claims, and (ii) Client shall not stipulate or consent to judgment or concede or admit or settle or compromise any Claim without the prior written approval of Kapow.
Each of the parties hereto expressly, knowingly and voluntarily agrees that these Terms and all matters arising out of or relating to or in connection with these Terms or the relationship of the parties 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 (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
The parties agree that they have had the opportunity to read these Terms and obtain the advice of legal counsel, and further agree that the provisions set forth herein are fair and reasonable. The headings in these Terms are for convenience only and do not constitute terms of these Terms. All understandings and agreements, oral or written, heretofore made between the parties hereto in connection with the subject matter hereof are merged in these Terms which, together with the documents referenced in Section 1 hereof, alone fully and completely expresses the agreement between the parties. Neither these Terms nor any of the covenants, terms or conditions of these Terms, shall in any manner be altered, waived, modified, changed or abandoned, except by a written instrument, duly signed, acknowledged and delivered by the party against which such modification is being asserted. Notwithstanding any rules of construction to the contrary, no terms, provisions or conditions of these Terms shall be construed against any party hereto by virtue of the drafting or preparing of this instrument by such party or its attorney. Any ambiguity or uncertainty existing herein shall not be interpreted or construed against any party hereto. These Terms have been and are made solely for the benefit of Client, Kapow, the parties indemnified hereunder, and their respective heirs, executors, personal representatives, successors and assigns. If any provision of these Terms shall be declared invalid or unenforceable by a court of competent jurisdiction or other legally recognized judicial authority, 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 or any right, power or remedy hereunder, shall not be construed to be a present or future waiver nor 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. The parties acknowledge and agree that Kapow shall have the right and power to assign or transfer or sublicense or delegate these Terms or 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, with a copy to Kapow Events, Inc., 205 West Wacker Drive, Suite 1200, Chicago, Illinois 60606, Attention: Account Manager. Each party may specify a different address by delivering notice as aforesaid to the other party.