CORKS AND CAPS, LLC
TERMS AND CONDITIONS
NOTICE: THIS AGREEMENT IS SUBJECT TO MEDIATION PROVISION AND IS GOVERNED BY THE LAWS OF THE STATE OF INDIANA. UTILIZATION OF THE SERVICES AND EQUIPMENT OFFERED BY CORKS AND CAPS, LLC CONSTITUES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
This Agreement (“Agreement”) is made by CORKS AND CAPS, LLC (“CC”), a limited liability company organized under the laws of the State of Indiana and authorized to do business within the State of Indiana, and_____________________________________(“Client”) (herein referred to as the “Parties”)
WHEREAS, CC is engaged in the business of operating a mobile beverage service in the State of Indiana;
WHEREAS, CC provides its services through the delivery of various mobile beverage delivery vehicles, more specifically identified as follow: __________________________________________________________________________________________________________________________________________________________________________________________________________________(the “Equipment”)
WHEREAS, Client has requested that CC provide its services for a private event, party, banquet, or other occurrence (the “Event”); and
WHEREAS, Client has selected an arrangement more specifically described in Exhibit A attached hereto and incorporated by reference;
NOW, THEREFORE, in consideration of the promises and covenants set forth herein, the adequacy and sufficiency of which are hereby acknowledged, the parties, in good faith, agree as follows:
1. STATEMENT OF SERVICE. CC agrees to provide Client with a mobile beverage service, including beverage delivery service via the Equipment, and / or wait staff and glassware as pertains to the selected package described in Exhibit A, on the date agreed upon by both parties, which is incorporated by reference and made a part of this Agreement. Client understands that CC serves nonalcoholic and alcoholic beverages and guarantees by law that only those of legal drinking age (21 years or older) will be permitted to consume alcoholic beverages at the Event or at any time while CC is in operation. Client is responsible for securing licensed servers for the Event. Client agrees and acknowledges that it is responsible for ensuring compliance with all applicable laws and procedures at the Event and agrees to hold CC harmless in the same. If Client engages CC for licensed servers as outlined Exhibit A, CC staff has the right to check the personal identification of any persons requesting to consume alcohol and also has the right to deny any persons if the appropriate identification is not provided. Written modifications to the Agreement may be made by CC only, to indicate any changes, subject to the provisions in this Agreement.
2. FEES, PAYMENT, & REFUNDS. Client agrees to pay the total fee(s) specified on the Agreement (or as indicated in any subsequent amended invoice), along with applicable sales tax, hospitality tax and gratuity. The Equipment is not deemed as Reserved for the Event Date until this Agreement has been signed and returned with a Retainer Fee equal to 50% of the total invoice amount. All payments may be made via credit/debit card or with a personal check or cash if received by CC within 7 days of signing the Agreement. If Client chooses to pay by cash or check, a credit card is still required to be held on file in case of incidentals. In the
circumstance that Client chooses to pay by cash or check but does not remit payment within 7 days of signing the Agreement, CC has the right to charge the Retainer Fee to the credit card on file on the 8th day. The remaining balance is due thirty (30) days prior to the Event Date. In the circumstance that Client does not pay the remaining balance 30 days prior to the Event Date, CC has the right to charge the remaining balance to the credit card on file. Client agrees to pay all costs of collection, including court costs and attorney’s fees, incurred by CC in connection with collecting any past due Payments or enforcing CC’s terms and conditions.
• Client has a 14 day window after submitting the signed Agreement to cancel the reservation and is eligible to receive a refund of the Retainer Fee in full. On the 15th day after signing and submitting the Agreement, Client agrees that the Retainer Fee becomes non-refundable.
• No refunds will be given for unconsumed beverages purchased as a part of any CC package.
• If CC fails to show up or provide services on the Event Date contracted and agreed upon by both Parties, with the exception of a force majeure, Client has a right to receive a refund in full.
3. CHANGES, CANCELLATIONS, & POSTPONEMENT.
a. Changes to Initial Agreement. Should Client wish to change the package size, in no case shall the total Fee be less than the original amount indicated in the signed Agreement. Client can upgrade to a larger package as long as it is requested in writing and approved by CC in writing. CC has the right to deny the change or package upgrade due to time frame restrictions or unavailable product. Should such changes be made, an amended Invoice will be sent to Client. Once a payment has been submitted (outside of the initial fourteen (14) day cancellation window) no refunds for cancellations will be granted. Should Client’s Event be postponed for any reason other than a force majeure event, CC may, at its discretion, negotiate with Client to attempt to reschedule the use of services, but there is no guarantee that the Equipment will be available or that CC will accommodate such rescheduling.
b. Cancellation of Agreement. Should Client wish to cancel this Agreement in full for any reason, including cancellation or postponement of the Event or a change of heart regarding using CC, Client agrees to the following conditions:
• All cancellations must be made in writing (which includes email communication as long as receipt is acknowledged by CC);
• Client has a fourteen (14) day window after submitting the signed Agreement to cancel the reservation, eligible of receiving a refund of the Retainer Fee in full. On the 15th day after signing and submitting the Agreement, Client agrees that the Retainer Fee becomes non-refundable; and
• For cancellations made less than thirty (30) days prior to the Event Date, Client is responsible for payment of the remaining balance, due to CC within five (5) business days of the notice of cancellation.
4. SUBSTITUTIONS. Specific beverage options may change in advance or spontaneously depending on the time of year and production from partnering companies. Client will be aware of these changing beverage options at the time of signing the Agreement and will receive the most up to date list of available beverages to choose from thirty (30) days prior to the Event Date. If there is a delay in distribution which is outside of the control of CC, with a particular beverage that was selected by the Client, CC reserves the right to make reasonable and comparable substitutions when necessary, and shall inform Client of such substitutions prior to the Event when possible. No refunds will be granted for substitutions made by CC provided a comparable beverage is served on the agreed upon date.
5. ALCOHOL USE. Alcoholic beverages will not be permitted to be served to anyone under the legal drinking age. Anyone appearing to be under the legal drinking age, will be required to show proper identification, and should be communicated to all attendees prior to the Event. Anyone appearing to be intoxicated will not be served alcoholic beverages. Unless otherwise specifically provided in this Agreement or allowed by Indiana law, no alcohol may be taken from the property. Client warrants to be responsible for the consumption of alcoholic beverages by his/her/its guests and attendees at the Event. Client acknowledges and agrees that CC may refuse service to any guest or attendee at its discretion, and may discontinue service to all guests and attendees in the event of violation of any local, state, or federal law. Client shall remain liable for all amounts owed to CC and shall have no right to obtain a refund of any deposits made to CC.
6. PHOTO RELEASE. Client grants permission to CC to use images from Client’s Event to promote CC's business, including but not limited to, use on CC's website, blog, social media and print marketing materials. Client waives any right to payment, royalties or any other consideration for the use of the images. Client waives the right to inspect or approve the finished product, including written or electronic copy, wherein Client’s likeness appears.CC is hereby held harmless and released and forever discharged from all claims, demands, and causes of action which Client, his/her heirs, representatives, executors, administrators, or any other persons acting on Client’s behalf or on behalf of the Client’s estates have or may have by reason of this authorization.
7. LIMITATION OF LIABILITY; INDEMNITY. Client agrees that, to the fullest extent permitted by law, CC shall not be liable for any claim for emotional distress, mental anguish, punitive damages, consequential damages, lost profit, loss of enjoyment, lost revenues and/or replacement costs, whether or not foreseeable and/or arising from any negligent act or omission on the part of any person. Client understands that inherent risks and dangers accompany the consumption of alcohol and Client expressly assumes the risk of the use of the Equipment and agrees to release, indemnify, defend and hold harmless CC and its employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to Client's Event and the actions of Client and/or Client’s guests, including but not limited to injuries sustained by Client and/or Client’s Event guests while consuming alcohol served from the Equipment. Client acknowledges and agrees that these limitations reflect a fair allocation of risk and that CC would not enter into this Agreement without these limitations on its liability.
ALL EQUIPMENT OR SERVICES PROVIDED BY OR OBTAINED THROUGH CC ARE PROVIDED “AS IS”, “WHERE IS” “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, AND YOU HEREBY WAIVE ALL OTHER WARRANTIES RELATING THERETO, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INTERFERENCE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT ANY GOODS, INFORMATION, CONTENT OR OTHER MATERIAL WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OR DELIVERY OF THE EQUIPMENT OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS IN THE EQUIPMENT WILL BE OR CAN BE CORRECTED. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY YOU) WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS SYSTEM, IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
UNDER NO CIRCUMSTANCES WILL CC BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE EQUIPMENT OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Client further agrees that it shall be liable for any damage to the Equipment incurred while at the Event from the time of delivery until the time of pick-up of the Equipment.
8. FORCE MAJEURE. Neither party shall be liable in damages or have the right to terminate this Agreement 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 (such as natural disasters), government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. Should Client’s Event be cancelled, postponed or otherwise adversely impacted as a result of a force majeure event, there shall be no refunds for payments already received by CC, but CC will use all reasonable efforts to work with Client to provide services at a later date if necessary, subject to availability. Additional fees may be incurred and due to CC as a result of a rescheduled event for which services are provided by CC.
9. DEFAULT AND DISPUTE RESOLUTION. Failure to comply with the terms of this Agreement shall constitute a default and shall entitled the aggrieved party to all available legal recourse, rights, and remedies. In the event of any dispute between CC and Client, with the exception of recovery by CC of any unpaid fees, damage costs or other payments from Client (which may be recovered by CC via collections, small claims court action, or any other legal remedy available to CC and to which CC shall be entitled to recover attorney’s fees and costs incurred in the collection thereof), CC and Client shall submit the dispute to mediation in accordance with the Indiana Rules of Alternative Dispute.
a. Obligation to Mediate. The Parties agree that any claim, counterclaim, third party claim, cross-claim, dispute or controversy between them, whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, administrative, common law, contract, intentional and equitable claims), shall be submitted to mediation prior to initiate of any legal action.
b. Small Claims Exception. If the dispute is within the jurisdiction of the small claims court in this State, either Party may take the dispute to small claims court rather than to mediation.
c. Self-Help and Preservation of Interest. This Agreement to mediate does not limit the right of the Parties, whether before, during, or after the pendency of any proceeding or request to mediate, to exercise self-help remedies. This Agreement to mediate does not limit the right of the Parties, whether before or during the pendency of any legal proceeding to bring an action (individually, and not on behalf of a class) to obtain provisional or ancillary remedies or injunctive relief (other than a stay of mediation) to protect the rights or property of the Party seeking such relief.
To exercise rights under this provision, the aggrieved party shall send written notice to the opposing party invoking this paragraph and requesting mediation. The parties, acting individually or through counsel, will then have fourteen (14) days to mutually agree on a mediator located within the State of Indiana. If the Parties cannot agree on a mediator, CC reserves the right to select the mediator after the expiration of the fourteen (14) day period.
10. ASSIGNMENT. No Party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other Party. Nothing in this Agreement, express or implied, will confer upon any person or entity not a Party to this Agreement, or the legal representatives of such person or entity, any rights, remedies, obligations, or liabilities of any nature or kind whatsoever under or by reason of this Agreement, except as expressly provided in this Agreement.
11. WAIVER AND MODIFICATION. Unless otherwise specifically provided herein, any modification or amendment to this Agreement requires the mutual consent of the Parties, and must be made in writing and signed by all Parties. The Parties may modify or amend this Agreement by way of email (such as to add or substitute beverage selections), so long as all Parties provide proper acknowledgment of receipt of the email and indicate their acceptance of the revised terms of the Agreement by way of an electronic signature in the following form: “/s/ Party Name”. Email modifications shall not become binding until all Parties have complied with these requirements. The failure of any Party to require strict compliance with the performance of any obligations and/or conditions of this Agreement shall not be deemed a waiver of that Party’s right to require strict compliance in the future, or construed as consent to any breach of the terms of this Agreement.
12. FURTHER EXECUTIONS. All parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force to the basic terms and intent of this Agreement and which are not inconsistent with its terms.
13. SEVERABILITY. In the event any part of this Agreement is void or voidable or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and nevertheless be binding with the same effect as though the void or voidable or unenforceable part was deleted.
14. HEADINGS. The headings, captions, and paragraph numbers appearing in this Agreement are inserted as a matter of convenience only and shall not in any way limit, amplify, or otherwise affect the terms and provisions hereof.
15. GOVERNING LAW AND FORUM SELECTION. All matters respecting this Agreement shall be governed and controlled by and construed in accordance with the laws of the State of Indiana, without giving effect thereto to principles of conflicts of law. Unless otherwise agreed to by the parties in writing. all actions related to this Agreement, the Equipment, or the services shall be initiated in either the federal court located in the Southern District of Indiana – Indianapolis Division or in a county court located in Hamilton County, Indiana.
16. ENTIRE AGREEMENT. This Agreement and the exhibits referred to herein, and to be delivered pursuant hereto, constitute the entire agreement between the parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations, and discussions of the parties, whether oral or written, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof, except as specifically set forth herein.
17. GRAMMAR AND LANGUAGE. The Parties acknowledge that they have both had the opportunity to engage legal counsel in the creation of this document and that, accordingly, any ambiguity determined in this contract shall not be construed in the favor of either party.
18. NOTICES. All notices in this document shall be provided by delivery to the following means.
606 Coventry Way
Noblesville, IN 46062
By signing this Agreement, it is assumed that the Client has read, fully understands and is bound by the Terms and Conditions set forth above. This document represents the entire agreement of the parties and there are no representations not stated herein.
Cork and Caps, LLC, by its_________________________,
Printed Name: __________________________________
Printed Name: __________________________________
EXHIBIT A: SERVICES AND EQUIPMENT PROPOSAL