SERVICES AGREEMENT TERMS AND CONDITIONS
FMS Holdings, L.L.C. 1999 Johns Dr
Glenview, IL 60025
Services Agreement, including the Terms and Conditions set forth herein (collectively, this “Agreement”), is effective upon the day on which you agree hereto and apply to your purchase of products and services from FMS Holdings LLC (“EXCLUSIVE EVENT EXPERIENCES”). For simplicity herein, we refer to you (i.e., the person or entity purchasing the products or services from EXCLUSIVE EVENT EXPERIENCES) as “CLIENT” and “CLIENT’S” or “you” and “your.”
EXCLUSIVE EVENT EXPERIENCES operates a business, which provides tailgating products and services that are designed to increase the quality of the tailgate experience and ease the burden on fans with regard to Game Day setup;
The client has or desires to purchase certain products and services from EXCLUSIVE EVENT EXPERIENCES, pursuant to the terms hereof.
In consideration of the mutual covenants and promises herein contained, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, EXCLUSIVE EVENT EXPERIENCES and CLIENT hereby agree, as follows:
- TAILGATE PACKAGE. In consideration of the payments to be made to EXCLUSIVE EVENT EXPERIENCES as provided herein and the terms, covenants, and conditions set forth in this Agreement to be observed and performed by CLIENT, EXCLUSIVE EVENT EXPERIENCES will provide for each home game or games reserved reflected on the invoice/reservation a tailgate tent, chairs, tables, and other products and services more particularly described on the invoice/reservation, which includes site setup and tear-down, operation management, trash collection from designated bins and all labor required in connection therewith (collectively, the “Tailgate Services”).
- EXCLUSIVE EVENT EXPERIENCES shall determine the exact location of CLIENT’s tailgate site (the “Site”), which may be relocated from time-to-time in EXCLUSIVE EVENT EXPERIENCES reasonable discretion to accommodate for space availability or other reasons or circumstances. In each case, EXCLUSIVE EVENT EXPERIENCES will take into consideration the CLIENT’s request for a particular location.
- EXCLUSIVE EVENT EXPERIENCES shall not be held liable for any delay or default in performing hereunder, if such delay or default is caused by conditions beyond its control, including but not limited to acts of God (including weather), government restrictions, decisions and regulations, wars, insurrections and/or any other cause beyond the reasonable control of EXCLUSIVE EVENT EXPERIENCES; and CLIENT does hereby release EXCLUSIVE EVENT EXPERIENCES from any claim for damages arising therefrom. However, if a previously canceled game is rescheduled, EXCLUSIVE EVENT EXPERIENCES agrees to provide the Tailgate Services on the date of the rescheduled game given that the game is in the same season, subject to applicable conditions, authority, and regulations. CLIENT is not entitled to a refund if the game is not rescheduled; however, EXCLUSIVE EVENT EXPERIENCES will give CLIENT a credit equal to fifty percent (50%) of the cost of the Tailgate Services that were to be provided at the canceled game, which credit may be applied toward any Tailgate Services purchased by CLIENT for a future game, subject to availability. In the event that inclement weather prevents EXCLUSIVE EVENT EXPERIENCES staff from setting up the tailgate site or providing any component of the Tailgate Services hereunder, EXCLUSIVE EVENT EXPERIENCES may suspend or cancel its tailgate operations and credit the CLIENT an amount equal to the amount of the invoice/reservation to that specific game.
- The Tailgating Services provided by EXCLUSIVE EVENT EXPERIENCESpursuant to this Agreement may, at the option of CLIENT and subject to availability, include a media package comprised of television, stand, connection to a satellite, connection to a receiver, and power source (a “Media Package”). CLIENT acknowledges and agrees that EXCLUSIVE EVENT EXPERIENCES has no control over television broadcasts and shall not be held accountable for any channel “blackouts” caused by contract disputes or inclement weather or other availability issues. For single-game Media Packages. If CLIENT wishes to cancel its Media Package as a result of changes in broadcast scheduling, then CLIENT must inform EXCLUSIVE EVENT EXPERIENCES of this decision in writing no later than 5:00 p.m. on the date which is three calendar days prior to the date on which Tailgate Services for the particular home game are to be provided. If the notice of cancellation of the Media Package is received in the manner provided, then CLIENT will not be charged for a said component of the Tailgate Services.
- Except as provided herein, the CLIENT will not be entitled to a refund of the cost of a Media Package that is canceled less than 21 days prior to the date of the game (for a single game media package) or 21 days prior to the start of the season (for a full season media package).
- PAYMENT. In consideration of the Tailgate Services to be provided by EXCLUSIVE EVENT EXPERIENCES, CLIENT shall pay the amount set forth on the invoice/reservation/billing summary made available to CLIENT (the “Package Price”). If CLIENT cancels this Agreement in writing more than twenty-one (21) days before the start of the game, EXCLUSIVE EVENT EXPERIENCES agrees to refund one hundred percent (100%) of the Package Price (or portion thereof that has been paid by CLIENT); provided, however, in order to reserve the Site for the game, CLIENT agrees to pay to EXCLUSIVE EVENT EXPERIENCES one hundred percent (100%) of the total invoice, upon execution of this Agreement, all of which shall be non-refundable within twenty-one (21) days of the date of the game. Where CLIENT has made payment of the total reservation, or any portion thereof, by credit card, CLIENT shall be prohibited from disputing said charge which CLIENT previously authorized EXCLUSIVE EVENT EXPERIENCES to make.
- TERM. This Agreement shall be effective for the immediately upcoming football season. CLIENT may renew this Agreement for subsequent seasons and/or add additional products or services as they become available, subject to the terms hereof. Renewals and modifications shall not be effective until confirmed in writing byEXCLUSIVE EVENT EXPERIENCES. EXCLUSIVE EVENT EXPERIENCES agree to give first priority to existing full-season clients who renew by the communicated renewal deadline (to be established by EXCLUSIVE EVENT EXPERIENCES following each football season), and the terms thereof, including pricing, shall be subject to adjustment by EXCLUSIVE EVENT EXPERIENCES in its discretion.
- CONDITIONS OF USE. CLIENT acknowledges that its use of the Site is subject to and conditioned upon the following terms and agrees that exclusive EVENT EXPERIENCESmay exercise any of the remedies set forth herein for CLIENTS failure to comply:
- CLIENT shall comply with all rules and regulations established by EXCLUSIVE EVENT EXPERIENCES and any other applicable authority, including but not limited to parking regulations in effect around the stadium. A copy of current rules and regulations is attached hereto as Exhibit A, which shall be subject to adjustment at any time by EXCLUSIVE EVENT EXPERIENCES or other applicable authorities.
- CLIENT shall be permitted to access the Site at the respective times set forth in the rules or otherwise determined by EXCLUSIVE EVENT EXPERIENCES
- CLIENT shall be solely responsible for all personal property in and around the site and shall take all precautions necessary to prevent theft or destruction thereof. CLIENT expressly acknowledges and agrees that EXCLUSIVE EVENT EXPERIENCES shall not be responsible for any personal property of CLIENT at any time. EXCLUSIVE EVENT EXPERIENCES will not remove or hold for safe-keeping any personal items left on the Site after event closing and same will be subject to removal by parking security. CLIENT may be subject to costs and fees associated with such removal.
- Eligibility for any exclusive EVENT EXPERIENCESdrop off service is determined by EXCLUSIVE EVENT EXPERIENCES in its sole discretion and is based on stadium restrictions, staffing availability, and other factors. If CLIENT is eligible to participate in any EXCLUSIVE EVENT EXPERIENCES drop off service, the CLIENT is responsible for properly packaging all items that will be transported and otherwise agrees to comply with procedures established by EXCLUSIVE EVENT EXPERIENCES for this “drop off service,” including but not limited to any limitations with regard to the amount and size of items to be transported. EXCLUSIVE EVENT EXPERIENCES will not be responsible for any damaged or broken items during unloading or loading and transportation to or from the Site.
- CLIENT shall not move, alter, or disrupt the operation of any media equipment provided by exclusive EVENT EXPERIENCES. In the event of inclement weather, EXCLUSIVE EVENT EXPERIENCES reserves the exclusive right to cover and protect all equipment associated with the Media Package with such materials and coverings as it deems appropriate, which may include gator covers or hard cases for TV’s, plastic bags for receivers and generators or the like (collectively, the “Protective Equipment”). CLIENT shall not remove any Protective Equipment or items contained inside Protective Equipment, and expressly acknowledges and agrees that only EXCLUSIVE EVENT EXPERIENCES staff shall have authority to do so. CLIENT acknowledges and agrees that its right to use the media equipment may be suspended, without refund, at EXCLUSIVE EVENT EXPERIENCES option, for violation of these provisions, and CLIENT further assumes all responsibility for any damages to media equipment resulting from the violation of these provisions and shall reimburse EXCLUSIVE EVENT EXPERIENCES for the cost to repair or replace damaged equipment.
- DEFAULT. Should CLIENT fail to pay any sums when due hereunder or fail to comply with or perform any other term, covenant or condition hereof, EXCLUSIVE EVENT EXPERIENCESmay terminate this Agreement and proceed against CLIENT for the recovery of all damages incurred by EXCLUSIVE EVENT EXPERIENCES as a result of the breach by CLIENT, or proceed for specific performance. Without limiting the foregoing, in the event CLIENT fails to timely pay any amounts due hereunder, such overdue balances shall accrue interest in the amount of one and one-half percent (1.5%) per month (or the maximum amount allowed by law, whichever is lower) from the due date until paid. In addition, CLIENT shall reimburse EXCLUSIVE EVENT EXPERIENCES for all costs and expenses, including reasonable attorneys’ fees, incurred by or on behalf of EXCLUSIVE EVENT EXPERIENCES occasioned by or in connection with any default by CLIENT under this Agreement.
- RELEASE AND INDEMNIFICATION. CLIENT hereby releases exclusive EVENT experiences and agrees to indemnify and defend EXCLUSIVE EVENT EXPERIENCES and save EXCLUSIVE EVENT EXPERIENCES harmless from and against all suits, actions, damages, liability, and expenses in connection with loss of life, body, or personal injury or property damage (and each and all of them) arising from or out of any occurrence in and around the Site or any part thereof or occasioned wholly or in part by any act or omission of CLIENT, its invitees, and guests.
- INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises, and understandings between EXCLUSIVE EVENT experiences and CLIENT and that no verbal or oral agreements, promises, or understandings shall be binding upon either EXCLUSIVE EVENT EXPERIENCES or CLIENT in any dispute, controversy, or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing signed by the Parties. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, in law or in equity.
- GOVERNING LAW AND VENUE. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the Laws of the State of Indiana, without regard to its conflicts of law principles. The parties further agree that the exclusive venue for any disputes arising out of or in connection with this Agreement shall be the state and federal courts of St. Joseph County, Indiana, and CLIENT hereby irrevocably submits to the jurisdiction of such courts.
- ASSIGNMENT. This Agreement is personal to the CLIENT and may not be sold, assigned, or transferred without the prior written consent of EXCLUSIVE EVENT EXPERIENCES.
- NOTICES. EXCLUSIVE EVENT EXPERIENCES may give all notices required hereunder to CLIENT by phone, email, regular mail, or courier at the addresses and/or phone number on file for CLIENT. All notices to EXCLUSIVE EVENT EXPERIENCES must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier’s regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier’s receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice):
- NO WAIVER. In the event there is a breach by CLIENT with respect to any of the provisions of this Agreement, without limitation of any other rights or remedies, EXCLUSIVE EVENT EXPERIENCESshall have the right to terminate this Agreement. EXCLUSIVE EVENT EXPERIENCES’ failure to act upon any default on the part of the CLIENT shall not be construed as a waiver of EXCLUSIVE EVENT EXPERIENCES rights hereunder, nor shall any custom or practice that may arise between the parties in the course of dealing be construed to waive or lessen the right of the EXCLUSIVE EVENT EXPERIENCES to enforce the terms of this Agreement.
- BINDING EFFECT. The terms and provisions hereof shall extend to, bind, and inure to the benefit of, as the case may require, the successors and assigns exclusive EVENT experiences and CLIENT.
- CAPTIONS. The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement.