SERVICES AGREEMENT TERMS AND CONDITIONS
FMS Holdings, L.L.C.
401 W. Ontario, Suite 225
Chicago, IL 60654
Services Agreement, including the Terms and Conditions set forth herein (collectively, this “Agreement”), are 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;
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 toEXCLUSIVE EVENT EXPERIENCESas 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 EXPERIENCESshall 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 for other reasons or circumstances. In each case, EXCLUSIVE EVENT EXPERIENCES will take into consideration 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 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 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 cancelled 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 on hundred percent (100%) of 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 thatEXCLUSIVE 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 theSite, andshall 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 anyEXCLUSIVE 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 operation of any media equipment provided byEXCLUSIVE 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 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 releasesEXCLUSIVE EVENT EXPERIENCESand 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 EXPERIENCESand 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 CLIENT and may not be sold, assigned or transferred without 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 ofEXCLUSIVE EVENT EXPERIENCESand 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.
Exhibit A Rules and Regulations
- EXCLUSIVE EVENT EXPERIENCES services including catering and drop- off services are available at Site Opening. If a client wishes to unload items for their tailgate prior to Site Opening, they may do so at their own risk and expense. EXCLUSIVE EVENT EXPERIENCES will not be responsible for any items left by the Client overnight. EXCLUSIVE EVENT EXPERIENCES begin the cleanup of equipment at the scheduled begin time of the event.
- The Client must abide by all rules and regulations set by the University of Notre Dame. EXCLUSIVE EVENT EXPERIENCES is not responsible for tailgates that are shut down by the university. EXCLUSIVE EVENT EXPERIENCES will not provide a refund for service and equipment rentals that result in a shutdown by the University of Notre Dame
- All supplemental items, media packages, and catering orders must be received by the end of the business day on Tuesday the week of the game. Orders placed after this time will not be delivered or provided past said date. All supplemental items are subject to availability and are issued on a first come first serve basis.
- Items otherwise not provided as part of the package (i.e. cookers, televisions, satellites, generators, sound equipment, etc.), will not exceed the allocated space for each reserved area. CLIENT may not install or otherwise utilize any tent(s) within the allocated space or any adjoining space that are not ordered through and installed by EXCLUSIVE EVENT EXPERIENCES.
- Tents and media package equipment should only be moved or relocated by an EXCLUSIVE EVENT EXPERIENCES staff member.
- Power sources reserved with a Media Package may not be for the sole use of one CLIENT. EXCLUSIVE EVENT EXPERIENCESreserves the right to distribute power from generators to multiple sources.
- Any items that contain heating elements including but not limited to, crockpots, griddles, coffee makers, electric grills, heaters, hotplates, popcorn machines, cotton candy machines, toasters, and any others not mentioned, will not be powered by an EXCLUSIVE EVENT EXPERIENCES generator. Failure to comply may result in suspension of aforementioned media package and a fine up to the amount of the generator value.
- Common sources of alcohol, including kegs of beer are prohibited within each reserved area. Each client is responsible for purchasing and transporting alcohol to their reserved area. Styrofoam coolers are not allowed within the tailgate areas.
- CLIENT is responsible for conveying all rules and regulations to all attendees and guests at client’s tailgate and assumes responsibility for actions taken by attendees and guests at client’s tailgate.
Exhibit A Rules and Regulations
FMS Holdings, LLC Equipment Rental Agreement
I, the undersigned Renter, desire to rent Equipment (as defined herein), from FMS Holdings, LLC (“EXCLUSIVE EVENT EXPERIENCES”). In exchange for EXCLUSIVE EVENT EXPERIENCES allowing me to rent the Equipment, I hereby agree, on behalf of myself, my heirs, next of kin, assigns and personal representatives, as follows:
- Acknowledgment and Assumption of Risks.I acknowledge and understand that use of the Equipment is potentially hazardous and involves risks, inherent and otherwise, that cannot be eliminated, and which may cause injury, illness, paralysis or death to myself, other persons, and/or damage to property. Some of the risks associated with my access to and/or use of the Equipment include, but are not limited to, negligence of EXCLUSIVE EVENT EXPERIENCES or its employees, Equipment failure or maintenance problems, known or unknown medical conditions, improper use of the Equipment or other acts of third parties. I accept full and sole responsibility for all risks, known and unknown, inherent or otherwise, related to my access to and/or use of the Equipment, and acknowledge that I am voluntarily accessing and using the Equipment even with knowledge of these risks.
- Rental Fee and Rental Term. The Rental Fee will be charged when the Rental Term begins. The Rental Term begins at when the Equipment was delivered to Renter and ends when the Equipment is returned to EXCLUSIVE EVENT EXPERIENCES (“Rental Term”). Any Equipment returned after the Rental Term shall incur a late fee of $50 per day until returned.
- Time of Return. Renter’s right to possession terminates upon the expiration of the specified Rental Term and retention of possession after this time constitutes a material breach of this contract. Time is of the essence in this contract and any extension must be mutually agreed upon in writing. EXCLUSIVE EVENT EXPERIENCES may elect to treat a failure to return the rented Equipment within forty-eight (48) hours after the agreed time as conversion of the rental Equipment by Renter.
- Equipment Use and Damage. I acknowledge that I am responsible for ensuring that no one other than the undersigned Renter uses the Equipment. I am personally responsible for any damage to or loss of the Equipment, less ordinary wear and tear, during the Rental Term. I am also responsible for any damage caused by or related to the use of the Equipment during the Rental Term. To the extent that I am aware of any damage to or loss of the Equipment or I am involved in any accident during my use or possession of the Equipment, I agree to immediately report such damage, loss or accident to EXCLUSIVE EVENT EXPERIENCES. If the Equipment becomes unsafe or, in disrepair for any reason, Renter agrees to discontinue use and notify EXCLUSIVE EVENT EXPERIENCES immediately. EXCLUSIVE EVENT EXPERIENCES is not responsible for any incidental or consequential damage caused by delays or otherwise.
- Prohibited Uses. Use of the Equipment by Renter in the following circumstances is prohibited and constitutes a material breach of this agreement: (a) Use for illegal purpose or in an illegal manner; (b) use when the Equipment becomes unsafe or is in disrepair; (c) improper and/or unintended use, including use while Renter is intoxicated or under the influence of drugs and/or alcohol; (d) use by anyone other than Renter; and (e) use at any location other than the location where the Equipment was delivered without EXCLUSIVE EVENT EXPERIENCES’ express written permission.
- Sublease or Loan of Equipment. Customer may not sublease or loan the Equipment. EXCLUSIVE EVENT EXPERIENCES may elect to treat any breach of this provision as conversion of the rental Equipment by Renter.
- Warranty. There are NO WARRANTIES OF MERCHANTABILITY OR FITNESS, EITHER EXPRESS OR IMPLIED by EXCLUSIVE EVENT EXPERIENCES. There is no representation that the equipment is suitable for customer’s intended use or that it is free from defects.
- Release. I hereby RELEASE, DISCHARGE AND COVENANT NOT TO SUE EXCLUSIVE EVENT EXPERIENCES and each of its respective direct and indirect affiliates, divisions, parent and subsidiary companies, officers, employees, tenants, invitees, shareholders, partners, representatives, managers, members, directors, owners, agents, insurers, attorneys, predecessors, successors, and assigns thereof (collectively, the “EXCLUSIVE EVENT EXPERIENCES Group”), from and against all claims, damages, charges, injuries, losses, proceedings, suits, actions, expenses, costs and attorney fees that I have or might have for any actual or alleged death, injury, property damage, or other damage, arising during or out of, or involving or relating to my access to and/or use of the Equipment during the Rental Term. This release, discharge and covenant not to sue applies even if the alleged act or omission complained of was caused in whole or in part by the strict liability or negligence in any form of the EXCLUSIVE EVENT EXPERIENCES Group.
- Defend, Indemnify and Hold Harmless Agreement. I also agree to INDEMNIFY, HOLD HARMLESS AND DEFEND the EXCLUSIVE EVENT EXPERIENCES Group from and against all liability, claims, causes of action, damages, losses, suits, proceedings, expenses, attorney fees and costs for any actual or alleged death, injury, property damage or other damage actually or allegedly arising during or out of, or involving or relating to my access to or use of the Equipment during the Rental Term or my failure to comply with the terms of this Agreement. This agreement to indemnify, hold harmless and defend applies even if the act or omission complained of was allegedly caused in whole or in part by the strict liability or negligence in any form of the EXCLUSIVE EVENT EXPERIENCES Group.
- Governing Law. This Agreement is governed by the laws of the State of Indiana. If one or more portions of this Agreement are found unenforceable, the remainder of the Agreement will remain enforceable. Any cause of action relating to the interpretation or enforcement of this Agreement is subject to the exclusive jurisdiction of a court in St. Joseph County, Indiana.
- Merger. This Agreement, along with any exhibits, appendices, addenda, schedules, and amendments hereto, encompasses the entire agreement and understanding of the parties and supersedes any and all prior agreements and understandings, oral or written, relating the subject matter hereof.
- Severability. The provisions of this Agreement shall be severable so that the invalidity, enforceability or waiver of any of the provisions shall not affect the remaining provisions.
- Representations. I also represent that: (i) I am at least eighteen (18) years old; (ii) have read this Agreement; (iii) have been given an opportunity to ask questions about its contents and/or to seek the advice of an attorney; (iv) fully understand its contents and the waiver of my legal rights contained herein; (v) understand that the above release is intended to be as broad as permitted by applicable law; and (vi) voluntarily, and without any inducement, agree to the terms and conditions set forth herein.
Exhibit B Cancellation Policy
5% Cancellation Fee 7 days prior to the event
100% of deposit surrendered less than 7 days from event
Schedule A: Equipment Replacement Costs
|6 ft Table||$20|
|48 qt Cooler||$15|
|100 qt Cooler||$30|