GamePlan Terms of Service
1. Terms of Service
These Commercial Terms of Service (these "Terms of Service") shall govern the provision of services by GamePlan ("GamePlan"), a product of Comayers Inc., a Pennsylvania corporation, hereunder, which services may include connecting a guest (each a "guest") with restaurant partners (each a "Partner") where an experience (each an "Experience") will be held, providing an experience marketplace, (the "Marketplace"), and facilitating the organization, planning and managing of experiences for guests, with each experience as is expressly set forth in the Experience Details (defined below) (collectively, the "Services").
2. Experience Details
Guest may select from experience packages on the Marketplace which provide all relevant experience details, including, as applicable, pricing, partner information, menus, minimum and maximum number of experience guests, experience times, entertainment and any other relevant experience details (the "Experience Details"). Once Guest has completed the checkout process such Experience shall become subject to such Experience Details and these Terms of Service (collectively, these Terms of Service and the Experience Details are referenced herein as the "Terms").
3. Headcount and Other Post-Checkout Adjustments
During the checkout process Guest shall provide GamePlan with the number of experience guests (the "Experience Guests"). Each Experience will have a minimum number of Experience Guests and a maximum number of Experience Guests. Guest will be charged for at least the number of Experience Guests provided at checkout, regardless of the actual number of Experience Guests who attend the Experience. A decrease in the number of Experience Guests post-checkout is subject to the cancellation terms set forth in Section 6 below. GamePlan shall use commercially reasonable efforts to accommodate post-checkout requests to increase the number of Experience Guests, if such request is received at least eight (8) days prior to the Experience, but cannot guarantee the same. If GamePlan agrees to any increase in the number of Experience Guests, such increase is not be confirmed until GamePlan receives payment for such increase. GamePlan's inability to accommodate an increase in the number of Experience Guests is not grounds for a termination or cancellation of the Experience. Guest shall pay the Partner directly (i) for any increase in the number of Experience Guests requested on the day of or at the Experience (provided the Partner can accommodate the same) and (ii) any other post-checkout adjustments to the Experience Details requested by Guest and accommodated by the Partner, as determined by the Partner in its sole discretion, on the day of or during the Experience (collectively, "Incidentals"). Such Incidentals may include, but are not limited to, additional food items, experience duration, beverages not included in the Experience Details and use of onsite AV. GamePlan will not accept any changes to the Experience Details of an Experience, other than (x) a change in the number of Experience Guests as provided in this section and (y) only to the extent the Partner agrees to accommodate the same. Notwithstanding the foregoing, an Experience time or date may only be rescheduled in accordance with Section 7 below.
4. Guest Responsibilities
In connection with its booking of an Experience, Guest acknowledges that it has reviewed and therefore agrees to these Terms. Guest agrees to use a valid credit card to pay for an Experience and to present to the Partner for any charges related to Incidentals incurred by Guest at the Experience. Guest is solely responsible and liable for its actions and the actions of its Experience Guests at the Experience and for its compliance and compliance by its Experience Guests with: (a) all Partner 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 Experience. If the Partner, 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 GamePlan will be managing invitations for the Experience, Guest shall provide GamePlan with such information as is reasonably required by GamePlan in connection with such invitation management. All invitations and any related promotional materials with respect to the Experience shall be subject to any applicable Partner, entertainer or any other similar requirements or restrictions. At the conclusion of an Experience, Guest shall cause its Experience Guests to leave the Partner where the Experience occurred on or before the Experience ending time or if no ending time is set forth in the Experience Details, promptly after the conclusion of the Experience. Any media coverage of the Experience is subject to the advance written approval of the Partner. GamePlan is not responsible for any packages sent to any Partner for use at an Experience and delivery of such packages shall be subject to any applicable Partner requirements and restrictions. Neither the Partner nor GamePlan makes any representation or warranty regarding use of any portion of the Partner not reserved for the Experience (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 experiences at the Partner’s establishment (unless Guest has exclusively reserved the entire Partner) are not suitable grounds for cancellation or non-payment and does not necessitate or obligate any refund. The Partner where the Experience is occurring may take any actions necessary in their reasonable judgment to protect the health, safety and welfare of their employees, agents, Experience Guests and other Partner guests, customers and the public, including, asking guests who do not follow applicable rules to leave the Experience, restricting access to the Experience, and monitoring the Experience room for capacity and crowd control and no such actions entitle Guest to any form of reimbursement, refund or compensation. Guest and its Experience Guests must follow all instructions and requests issued by Partner security and staff. Neither the Partner nor GamePlan is responsible for personal items and other articles lost, stolen, damaged prior to, during, or following the Experience, or personal items and other articles left over night at the Partner. Guest shall not sell tickets for admission to the Experience. Guest shall not operate any equipment or materials belonging to the Partner or any service providers. No signage is allowed at or around the Partner, without written advance approval from the Partner.
Guest shall pay GamePlan in the amounts, at the rates, and on the terms set forth in the relevant Experience 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 Experience Details or on a particular invoice, then 100% of the total Experience cost is due at checkout. Until such payment or any deposit described in the Experience Details or on a particular invoice has been received there can be no assurance that the Experience date or Partner has been secured or reserved. Until payment in full has been received there can be no assurance that the Experience 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 Guest fails to make any required payments (each a "Payment Failure"), GamePlan shall have the right to suspend or terminate the Services, cancel the Experience, and/or forfeit the planned Experience 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 Guest makes a late payment, GamePlan will use commercially reasonable efforts to provide Guest with the Experience as set forth in the Experience Details, but will not guaranty the same. If there are multiple Guests making payments for an Experience, 100% of the total Experience costs must be paid before the Experience date or Partner has been secured or reserved. Any funds provided to GamePlan for the purpose of creating a retainer for Guest are non-refundable and shall remain in Guest's GamePlan account until such funds are used.
6. Cancellation Policy
Any Guest who books an Experience via GamePlan will be eligible for cancellation and refund configurable in accordance with the policies of each GamePlan Partner as specified on the Experiences details page within GamePlan. If Guest provides written or electronic notice to GamePlan that it intends to cancel an Experience in accordance with the cancellation and refund policies stipulated by GamePlan’s partners, Guest shall be be entitled to a refund of any applicable amounts paid by Guest for such Experience. An Experience is considered canceled only after Guest has received a written cancellation confirmation (including by email) from GamePlan. If GamePlan provides Guest notice that it is unable to proceed with the Experience because of an experience of force majeure, including any reason or circumstance beyond GamePlan's reasonable control, GamePlan shall not be deemed to be in breach in its performance of any obligation under these Terms and shall, at GamePlan's option, either: (1) refund to Guest any fees for Services yet to be performed hereunder which were prepaid by Guest or if no fees were paid, allow Guest to cancel the Experience without payment of any cancellation fee hereunder, subject to any special conditions agreed to by the Guest for specific Experience requests, or (2) reschedule such Experience or subject to Guest’s approval, provide a comparable substitute experience to the Experience (provided that Guest shall pay any increased costs arising out of such comparable substitute experience).
7. Experience Rescheduling Policy
Any Rescheduled Experience will be subject to the following conditions ("Rescheduling Conditions"): (a) the date and time of the Rescheduled Experience will be subject to the availability and approval of the Partner; (b) Guest and the Partner must prior to the date that is thirty (30) days after the date of the Cancelled Experience, agree upon a date and time for the Rescheduled Experience; and (c) the date of the Rescheduled Experience must be at least seven (7) days after the date of the Cancelled Experience and no more than ninety (90) days after the date of the Cancelled Experience. Each time an Experience is rescheduled by Guest, other than first time an Experience is rescheduled, Guest shall be charged a rescheduling fee equal to an amount that is 20% of the total Experience cost not including taxes and gratuity ("Rescheduling Fee"). The Rescheduling Fee will become due upon Guest’s booking of the Rescheduled Experience. The amount of any Rescheduling Fee is not a penalty and represents a reasonable estimate of the damages sustained by GamePlan in connection with rescheduling an Experience, which actual damages would be uncertain in amount and difficult to determine. For the avoidance of doubt, any Experience that may not be cancelled also may not be rescheduled, including, without limitation, if the Experience Details provide that an Experience is non-cancellable, or final sale.
GamePlan and Guest 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.
9. Telephone Orders
By placing a telephone order through a GamePlan representative, Guest shall be bound by the Terms, including the representations and warranties set forth in Section 8.
10. GamePlan Content
All ideas, proposals, concepts, content, materials, works and deliverables presented by GamePlan or otherwise developed or produced by GamePlan hereunder, including any works that might be deemed to be derivative works of works owned by Guest, but specifically excluding any Guest owned intellectual property (collectively, the "GamePlan Content") are and shall remain the exclusive property of GamePlan and GamePlan retains all rights regarding the same, including, the sole right to implement, use, publish, perform and/or publicly disseminate the GamePlan Content. Without GamePlan's prior written consent, Guest shall not use any GamePlan Content.
11. Google Terms of Service
By using GamePlan, guests are bound by Google’s terms of service as GamePlan utilizes Google Places API Web Service application
12. Braintree Terms of Service
GamePlan uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/bank-agreement.
EXCEPT AS EXPRESSLY STATED HEREIN, GAMEPLAN 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 GAMEPLAN CONTENT. WITHOUT LIMITING THE FOREGOING, NOTHING IN THESE TERMS SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY GAMEPLAN OF THE SAFETY, SUITABILITY, FUNCTIONALITY OR USEFULNESS OF ANY OF THE SERVICES OR THE GAMEPLAN CONTENT.
14. Limitation of Liability
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, GAMEPLAN SHALL NOT HAVE ANY LIABILITY TO GUEST, ANY EXPERIENCE 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 GUEST, ANY EXPERIENCE 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 EXPERIENCE, UNLESS SUCH LOSSES ARE SOLELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A GAMEPLAN 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, GUEST, EXPERIENCE GUEST AND EACH OTHER PERSON AGREES THAT THE SOLE AND TOTAL LIABILITY OF GAMEPLAN SHALL BE LIMITED, IN THE AGGREGATE, TO THE LESSER OF: (1) THE NET AMOUNT RETAINED BY GAMEPLAN WITH RESPECT TO THE EXPERIENCE; 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.
15. Assumption of Risk and Release
THE PARTICIPATION OF GUEST AND ITS EXPERIENCE GUESTS IN THE EXPERIENCE IS VOLUNTARY AND FOR THEIR SOCIAL ENJOYMENT. GUEST RECOGNIZES AND HAS INFORMED ITS EXPERIENCE GUEST THAT PARTICIPATION IN THE EXPERIENCE 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 GUEST FREELY ASSUMES ALL SUCH RISKS, INCLUDING ANY UNFORESEEN RISKS. TO THE FULLEST EXTENT PERMITTED BY LAW, GUEST WAIVES ALL CLAIMS, FOREVER RELEASES AND PROMISES NOT TO SUE GAMEPLAN FOR ANY AND ALL LOSSES RELATED TO OR ARISING FROM ITS PARTICIPATION IN THE EXPERIENCE BY GUEST, ANY EXPERIENCE GUESTS AND ANY OTHER PERSONS AND INTENDS THAT THIS RELEASE IS INTENDED TO BE A COMPLETE AND UNCONDITIONAL RELEASE. GUEST 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) Guest agrees to indemnify, hold harmless and defend GamePlan and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns (collectively, "GamePlan 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 Guest set forth herein and (ii) any acts or omissions of Guest or any Experience 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) GamePlan agrees to indemnify, hold harmless and defend Guest and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns (collectively, "Guest 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 GamePlan set forth herein, and (2) any acts or omissions of any GamePlan 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, "Guest Claims"). If any third party notifies any party hereunder (the "Indemnified Party") with respect to any Claim or Guest 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 Experience Details, Guest is responsible for payment of any taxes with respect to any Experience, including any amusement or similar taxes. If Guest is a not for profit organization and is exempt from sale, use or any similar taxes and has furnished to GamePlan evidence of the same, including its tax exempt certificate, then and only then shall Guest be exempt from such sale, use or any similar taxes as permitted by applicable law. Until GamePlan has received such evidence as is reasonably requested by GamePlan with respect to such exemption, Guest shall be responsible for the payment of all sale, use or any similar taxes.
18. General Provisions
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 Guest 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 Guest'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 GamePlan because it drafted these Terms. These Terms have been and are made solely for the benefit of Guest, GamePlan, the parties indemnified hereunder, and their respective successors and assigns and without limiting the foregoing, the Partner 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 Guest or its Experience 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 Guest under these Terms may not be assigned without the prior written consent of GamePlan. GamePlan shall have the right and power to assign, transfer, sublicense or delegate any rights or obligations hereunder without notice to or consent of Guest. 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 GamePlan shall be sent to: GamePlan, 1601 Market St, 19th Floor-WeWork, Philadelphia, Pennsylvania 19103, Attention: Jason Graub and any notice to Guest shall be sent to the address provided in the Experience Details. Each party may specify a different address by delivering notice as aforesaid to the other party.
19. Governing Law and Attorney Fees
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.
20. Waiver of Jury Trial
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.
You may contact GamePlan at the following address: 1601 Market St, 19th Floor, Philadelphia, PA 19103.
Effective Date: August 18, 2016