This Tailgate Rental and Services Agreement (“Agreement”) set by and between of Tailgater Concierge LLC (“Tailgater,” “we,” or “us”) and (“you” or “Customer”) sets forth the terms for you to rent certain equipment (“Equipment) and receive other tailgate services (“Services”) from Tailgater Concierge LLC (“Tailgater”). By placing an order for Equipment and Services on this website or directly with Tailgater staff (the “Order”), you acknowledge and agree to this Agreement. If you do not agree to this Agreement, you may not place an Order. We may change this Agreement at any time, without notice to you. For this reason, we recommend that you regularly check this page to ensure that you have read the most recent version. Such changes are effective when they are posted on www.www.tailgaterconcierge.com.
The Order describes the Equipment being rented by Customer. Tailgater reserves the right to reject any Order(s) if the Equipment is not available or for any other reason in its sole discretion. No Orders will be considered accepted by Tailgater until Tailgater has confirmed the order electronically by email, or otherwise (“Acceptance”). Customer hereby expressly authorizes Tailgater to so communicate by such means. Upon Acceptance, Tailgater hereby rents to Customer, and Customer hereby rents from Tailgater, the Equipment.
2. Service Period.
The Service Period shall begin on the date and time specified in the Order and confirmed by Tailgater, which shall be no less than three hours prior to the ticketed event time (subject to local ordinances) and shall continue for the period of time specified in the Order and confirmed by Tailgater subject to Check Out, which shall be at the ticketed event time unless other arrangements have been made by Customer (as that term is defined in Section 14 below) (“Service Period”).
3. Delivery and Installation.
a) Tailgater will deliver, set up, take down and remove the Equipment at the location identified in the Order (“Location”). The Equipment may not be removed from such Location without Tailgater’s prior written consent in its sole discretion. Tailgater will have sole discretion as to the exact location of the Customer’s Equipment.
b) The Equipment provided by Tailgater pursuant to this Agreement may, at the option of Customer and subject to availability, include a media package comprised of a television, stand, connection to a satellite, connection to a receiver, and power source (“Media Package”). Customer acknowledges and agrees that Tailgater has no control over television broadcasts and shall not be held accountable for any channel “blackouts” caused by contract disputes or any lack of service due to inclement weather or other availability issues. In the event of service issues covered in the aforementioned terms of this paragraph, no refund will be provided.
4. Payment; Tax.
Customer shall pay the amount as ordered by Customer and confirmed in writing by Tailgater (“Payment”). Payment shall be due upon booking the Order. If Payment is not made within seven (7) days of the booking the Order, Tailgater reserves the right to cancel the Order. In some cases, Tailgater may only require a deposit at the time of booking, if that is the case the remainder of the Payment is due no later than August 1st of the Agreement year. Customer shall also pay, in advance, all applicable taxes. Customer is not entitled to a refund for its Order, excluding catering or beverage service, due to any failure of caterer or beverage service provider.
5. Customer Obligations.
a) Customer acknowledges all risks related to its attendance and use of the Services and Equipment, including risk of damage to or loss of property or risk of serious personal injury or death, and accepts sole responsibility for such risks. Customer shall secure all personal property in and around the Location and shall take all precautions necessary to prevent theft or destruction thereof. Customer expressly acknowledges and agrees that Tailgater shall not be responsible for any personal property of or injury to Customer at any time. Tailgater will not remove or hold for safe-keeping any personal items left at the Location after event closing and same will be subject to removal. Customer may be subject to costs and fees associated with such
b) Customer shall respect the interests of other fans and clients of Tailgater and shall not engage in or permit disorderly or offensive conduct in or around the tailgate Location. Customer further agrees not to exceed the maximum number of guests allowed per the Order. Should Customer violate these provisions, Tailgater management will give Customer a verbal warning. If Customer fails to promptly come into compliance, Tailgater may 1) immediately revoke Customer’s rights to the Equipment and in its sole and absolute discretion terminate this Agreement and provide no refund, or 2) charge the client $50 per guest over the maximum number for which immediate payment must be made
c) Customer shall keep their tailgate Location in a neat and orderly manner at all times and may incur additional fees if Location is left in an untidy state.
6. Cancellation Policy.
a) Customer must notify Tailgater at least 29 calendar days in advance of the event to receive a full refund. For cancellations received between 28 and 15 calendar days before the event, you will receive a credit equal to half of your paid package balance to be used for a future game. Cancellations within 14 calendar days of the event will receive no refunds. Catering orders are not refundable.
b) Tailgater reserves the right in its sole discretion to suspend or cancel its services due to inclement weather, ground conditions, or other factors that may impact the quality and safety during the provision of services. In the event that inclement weather prevents Tailgater staff from setting up the Equipment or providing any component of the Services hereunder in its reasonable but sole discretion, Tailgater may suspend or cancel the provision of the Order and credit the Customer towards a future purchase an amount equal to the amount paid for that specific event if the entire event is cancelled pursuant to this provision. If an event has begun but is subsequently suspended due to inclement weather, ground conditions, or other factors that may impact the quality and safety during the provision of the Order, Tailgater will provide Customer a pro rata credit towards a future purchase. Catering orders are not refundable.
The contract parties (i.e., the service provider and the customer) have the right to terminate their obligations if either party’s performance is prevented or made impossible, either by acts of God, health crises, legal restrictions, labor disputes, strikes, boycotts, epidemics (a.k.a. force majeure events) or by acts of third parties (such as strikes, terrorist acts or government orders). This clause allows the parties to end the contract without further liability. You will receive a full refund within five (5) days of termination. Termination can be made in writing to the appropriate party at any time but at least 48 hours in advance of the event. Tailgater may require proof from Customer of reason for termination. Catering orders are not refundable. Unless something otherwise is specifically stated in the contract, a termination would require the service provider to return all payments made to the client.
8. Disclaimer of Warranties and Limitation of Liability; Waiver of Jury Trial.
a) EXCEPT FOR WARRANTY OF TITLE, TAILGATER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS OR MERCHANTABILITY, ABOUT THE QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY OR PERFORMANCE OF THE EQUIPMENT. CUSTOMER AGREES THAT THE EQUIPMENT IS OTHERWSE RENTED HEREUNDER “AS-IS” AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY CUSTOMER AND THAT CUSTOMER IS SATISFIED THAT THE SAME IS SUITABLE FOR CUSTOMER’S PURPOSES, AND THAT TAILGATER HAS MADE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OR DURABILITY OF SAID EQUIPMENT FOR THE PURPOSES AND USES OF CUSTOMER. CUSTOMER HEREBY WAIVES A TRIAL BY JURY AND COUNTERCLAIMS FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT.
b) IN NO EVENT WILL TAILGATER OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE FOR EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE, OPERATION OR POSSESSION OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUTION OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF TAILGATER AND/OR THE OTHER PARTIES LISTED ABOVE HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF TAILGATER TO CUSTOMER OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE EQUIPMENT EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO TAILGATER FOR YOUR USE OF THE EQUIPMENT.
d) THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Customer will defend, indemnify and hold harmless Tailgater, its employees and agents from and against any and all (1) liabilities, expenses (legal or otherwise), suits, demands, claims, judgments or fines arising from injury to person or property resulting from or based upon the Equipment or its use, possession, or operation by Customer, its/his her guests, invitees or any other person (except Tailgater), including using the Equipment or allowing it to be used in an illegal manner, (2) breach of any representation or warranty and (3) losses, casualty and/or damages to the Equipment during the Service Period. These indemnification obligations shall survive termination or expiration of the Service Period.
10. Ownership and Security Interest.
a) The Equipment shall at all times remain the property of Tailgater. Customer shall have no right, title or interest in the Equipment, except as set forth herein. Customer, at its expense, shall protect and defend the title and interest of Tailgater and keep the Equipment free of all claims and liens other than claims and liens created by or arising through Tailgater. The Equipment shall remain personal property regardless of its attachment to realty, and Customer agrees to take such action at its expense as may be necessary to prevent any third party from acquiring any interest in the Equipment. Tailgater may mark the Equipment as its property and Customer shall not remove or obscure any markings of Tailgater’s ownership.
b) A continuing security interest in favor of Tailgater is hereby created in the Equipment rented by Tailgater to Customer, including any replacements, additions and improvements to the equipment or proceeds resulting from any disposition thereof and any insurance proceeds resulting from any damage or destruction thereof.
11. Representations; Use and Repairs.
Customer shall use the Equipment within its recommended capacities and only for the purpose(s) for which it was designed. Customer represents and warrants that (1) he/she/it shall comply with all laws, regulations and ordinances relating to the possession and use of the Equipment including, without limitation, alcohol beverage laws, health, fire and environmental laws applicable to the Equipment and (2) he/she/it will maintain the Equipment in good repair, condition and working order. Customer shall not make other modifications or improvements without the prior written consent of Tailgater. All parts, modifications and improvements to the Equipment shall, when installed or made, immediately become the property of Tailgater and part of the Equipment for all purposes.
12. Loss; Destruction, Theft.
Customer hereby assumes and shall bear the entire risk of loss, theft, or destruction of the Equipment from any cause whatsoever during the Service Period; and no loss, theft, or destruction of all or any item of the Equipment or the existence of insurance shall relieve Customer of its obligations under this Agreement, which shall continue in full force and effect, notwithstanding such loss, theft, or destruction. The risk of loss shall pass to Customer on tender of the Equipment to Customer until the Equipment is returned to Tailgater. Customer shall promptly notify Tailgater of any loss, theft, material damage or destruction of the Equipment and, if Tailgater determines that the Equipment is lost, stolen, destroyed, worn out or damaged beyond repair as a result of extraordinary use, neglect, abuse or any other cause whatsoever, Customer will pay to Tailgater the (i) all then accrued and outstanding Payment and other amounts due from Customer hereunder, plus (ii) all Payments with respect to such item for the balance of the Service Period, plus (iii) the then fair market value of the Equipment. Such payment shall be made in immediately available funds and upon such payment in full the Equipment shall become the property of Customer, without recourse or warranty, and all of Tailgater’s right, title and interest therein, including the Payment with respect to such Equipment, shall terminate. Customer shall pay any sales, use and transfer taxes due on such transfer. Any insurance or condemnation proceeds actually received by Tailgater shall be credited to Customer’s obligation under this paragraph, in such order of application as Tailgater, in its sole discretion, may determine, and Tailgater shall be entitled to any surplus.
Customer shall immediately inspect the Equipment at the time of set up. If Customer notices any defects or damage in the Equipment, then Customer shall immediately notify the Tailgater representative prior to his/her departure from the Location.
14. Return of Equipment.
Customer shall surrender possession of the Equipment to a Tailgater representative at the Location upon expiration of the Service Period. Customer shall not leave the Location until a Tailgater representative has personally visited the Location and inspected the Equipment at the end of the Service Period (the “Check Out”). Due to darkness and among other things, such inspection by Tailgater does not waive Tailgater’s rights to later claim damage to the Equipment. The Equipment shall be in the same condition as when received by Customer, reasonable wear and tear resulting from normal and proper use, and free and clear of any liens. Until the Check Out, this Agreement shall remain in full force and effect. In the event that Customer fails to surrender possession of the Equipment at the Location upon expiration of the Service Period, Customer shall pay an hourly fee of $250 per hour until the Equipment is surrendered, provided that Customer shall have no liability for delays in returning the Equipment caused by Tailgater.
In the event of a breach of this Agreement, Tailgater may exercise any one or more of the following remedies as Tailgater in its sole discretion may lawfully elect (a) upon written notice to Customer terminate this Agreement; (b) proceed by appropriate court action to enforce performance by Customer under this Agreement and/or recover damages for the breach thereof; (c) repossess the Equipment wherever located, with or without notice to Customer or legal process, and for this purpose Tailgater and/or its agents may enter upon any premises of or under the control or jurisdiction of Customer or any agent of Customer, without liability therefore to Customer, and remove the Equipment and/or (d) Tailgater may exercise any other right or remedy available to it by law or by agreement. No remedy under this paragraph is intended to be exclusive, and each shall be cumulative but only to the extent necessary to permit Tailgater to recover amounts for which Customer is liable hereunder. No express or implied waiver by Tailgater of any breach of Customer’s obligation hereunder shall constitute a waiver of any other breach of Customer’s obligations hereunder.
This Agreement is personal to Customer and may not be sold, assigned or transferred without the prior written consent of Tailgater.
17. Governing Law and Construction.
This Agreement is governed by the laws of the United States and the State of Illinois, without regard to its conflict of law provisions. You agree that any cause of action that may arise under this Agreement will be brought in the appropriate federal or state court in Cook County, Illinois and you agree to submit to the personal and exclusive jurisdiction of such courts located in Cook County, Illinois. In the event of any dispute or controversy hereunder, the prevailing party shall be entitled to an award of legal fees and court costs.
Any notice required to be given under this Agreement shall be in writing and shall be deemed delivered upon receipt when personally delivered, sent by overnight delivery service, or certified mail, postage prepaid and return receipt requested. Notices to Customer shall be to the person and address set forth on the Order form. All notices to Tailgater shall be sent to [email protected].
This Agreement, together with the Order, constitute the entire and only agreement between the parties hereto and expressly supersedes and cancels any other agreement, whether oral or written, relating to the subject matter hereof. This Agreement may only be amended, supplemented or modified by a written instrument executed by all of the parties hereto. The failure to enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement.
Any term or condition of this Agreement which is determined by a court or other governmental body to be unenforceable in any jurisdiction will, as to such term or condition and jurisdiction only, be deemed severed to the extent of such unenforceability and, subject to such severance, this Agreement will continue in effect in accordance with its other terms and conditions.