Terms

Last Updated: 12 March 2020

1. Terms of Service

These Commercial Terms of Service (these “Terms”) shall govern the provision of services by The Social Arena (“The Social Arena”), a product of The Setting Co. LLC, a California limited liability company, 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, and providing an online marketplace (the “Marketplace”) where Guests can search for Partners (collectively, the “Services”).

2. Marketplace Selections

Guest may select Partners on the Marketplace and see relevant experience details, including, as applicable, pricing, menus, minimum and maximum number of experience guests, experience times, entertainment and any other relevant experience details (the “Experience Details“). The Experience Details are for general information purposes only and to help a Guest select a Partner that can provide an Experience that closely fits the Guest’s needs. Once a Guest has completed the checkout process, The Social Arena will connect the Guest with the chosen Partner and such Guest and Partner will agree to additional terms and conditions outside of these Terms (the “Partner Terms”).

3. Changes and Adjustments

During the checkout process Guest may be required to provide The Social Arena 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 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. The Social Arena 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 will present the same 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 The Social Arena will be managing invitations for the Experience, Guest shall provide The Social Arena with such information as is reasonably requested by The Social Arena 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. The Social Arena 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 The Social Arena 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 The Social Arena are responsible for personal items or 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.

5. Payment Procedures

After Guest selects a Partner and The Social Arena has connected Partner and Guest, Guest will make all payments to the selected Partner directly and all such payments shall be subject to the Partner Terms. Should Partner notify The Social Arena of any invoices not paid when due (each a “Payment Failure“), The Social Arena 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 and The Social Arena is notified of such payment. A Payment Failure shall be treated as a Cancellation (as defined below). If Guest makes a late payment, The Social Arena will use commercially reasonable efforts to provide Guest with the Experience as set forth in the Experience Details, but will not guarantee 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.

6. Cancellation

Any Guest who books an Experience via The Social Arena will be eligible for cancellation and refund pursuant to the policies of each The Social Arena Partner as specified in the respective Partner Terms. If Guest provides written or electronic notice to The Social Arena that it intends to cancel an Experience in accordance with the cancellation and refund policies stipulated by the Partner, all refunds shall be subject to such Partner Terms. An Experience is considered canceled only after Guest has received a written cancellation confirmation (including by email) from The Social Arena or the Partner. If The Social Arena or Partner provides Guest notice that it is unable to proceed with the Experience because of an event of force majeure, including, without limitation, any reason or circumstance beyond The Social Arena’s reasonable control, The Social Arena shall not be, nor be deemed to be in breach of its performance of any obligation under these Terms and shall, at The Social Arena’s option, either: (1) facilitate with Partner a refund to Guest any fees for Services yet to be performed hereunder that 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 and in accordance with such new Partner’s Terms).

7. Rescheduling

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 Partner and The Social Arena 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 or Partner provide that an Experience is non-cancellable, or final sale.

8. Representations

The Social Arena 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. The Social Arena Content

All ideas, proposals, concepts, content, materials, works and deliverables presented by The Social Arena or otherwise developed or produced by The Social Arena 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 “The Social Arena Content”) are and shall remain the exclusive property of The Social Arena and The Social Arena retains all rights regarding the same, including, the sole right to implement, use, publish, perform and/or publicly disseminate the The Social Arena Content. Without The Social Arena’s prior written consent, Guest shall not use any The Social Arena Content.

10. Disclaimer

EXCEPT AS EXPRESSLY STATED HEREIN, THE SOCIAL ARENA 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 THE SOCIAL ARENA CONTENT. WITHOUT LIMITING THE FOREGOING, NOTHING IN THESE TERMS SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY THE SOCIAL ARENA OF THE SAFETY, SUITABILITY, FUNCTIONALITY OR USEFULNESS OF ANY OF THE SERVICES OR THE THE SOCIAL ARENA CONTENT.

11. Limitation of Liability

TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE SOCIAL ARENA 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 THE SOCIAL ARENA 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 THE SOCIAL ARENA SHALL BE LIMITED, IN THE AGGREGATE, TO THE LESSER OF: (1) THE NET AMOUNT RETAINED BY THE SOCIAL ARENA 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.

12. 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 THE SOCIAL ARENA 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.

13. Indemnification

To the fullest extent not prohibited by applicable law: (a) Guest agrees to indemnify and hold harmless The Social Arena and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns (collectively, “The Social Arena 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) The Social Arena agrees to defend, with counsel selected by The Social Arena, Guest from and against any and all Losses, arising out of, relating to, resulting from or in connection with any breach any representation or warranty made by The Social Arena herein (“Guest Claims“). If any third party notifies Guest (the “Indemnified Party“) with respect to any Guest 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 within 10 days of having notice of any such Guest Claim, The Indemnified Party may retain separate co-counsel at its sole cost and participate in the defense of the Guest Claim.

14. Taxes

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 The Social Arena 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 The Social Arena has received such evidence as is reasonably requested by The Social Arena with respect to such exemption, Guest shall be responsible for the payment of all sale, use or any similar taxes.

15. 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 The Social Arena because it drafted these Terms. These Terms have been and are made solely for the benefit of Guest, The Social Arena, 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 11 (Limitation of Liability), 12 (Assumption of Risk and Release) and 13 (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 The Social Arena. The Social Arena 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 email (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 The Social Arena shall be sent to: The Social Arena, 807 5th Street, Unit 2, Santa Monica, CA 90403, 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.

16. Governing Law and Disputes

THE PARTIES AGREE THAT THESE TERMS, ANY SALES THEREUNDER, AND/OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND THE SOCIAL ARENA ARISING FROM OR RELATING TO THESE TERMS, ITS INTERPRETATION OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS THAT RESULT FROM THESE TERMS, THE SOCIAL ARENA’S ADVERTISING, OR ANY RELATED PURCHASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW.

17. Dispute Resolution and Binding Arbitration

YOU AND THE SOCIAL ARENA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND THE SETTING CO., LLC, its members, managers, agents, employees, successors, assigns, direct and indirect subsidiaries, and any third party providing any products or services to you in connection with your purchase (collectively “The Social Arena”) arising from or relating in any way to your Experience, your use of the Site, these Terms, its interpretation or the breach, termination or validity thereof, the relationships that result from these Terms (including relationships with third parties who are not signatories to these Terms), The Social Arena’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or these Terms is void, voidable or otherwise invalid. The arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the customer’s individual dispute or controversy. You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR THE SOCIAL ARENA SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS/USERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced (but in no case shall there be class arbitration). The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Payment for all filing, administration and arbitrator fees will be governed by the rules of the applicable arbitration administrator, provided, that The Social Arena will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If you prevail on any claim that affords the prevailing party statutory attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: (i) American Arbitration Association: (800) 778-7879, www.adr.org; and (ii) JAMS: (800) 352-5267, www.jamsadr.com. If for any reason a claim proceeds in court rather than in arbitration each of you and The Social Arena waive any right to a jury trial. Moreover, each of you and The Social Arena both agree that either party may bring suit in court to enjoin infringement or misuse of intellectual property rights.

18. Contact Us

You may contact The Social Arena by email at info@socialarena.co.