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Venue Program Member Agreement

This page was last updated on August 18, 2021.

Thank you for signing up to be a member of the Yaymaker Venue Program! Solely for purposes of this agreement (the "Agreement") and ease of reference, Paint Nite LLC, Your Nite LLC, and Paint Nite Canada Company are referred to herein as the "Company" or "Yaymaker" though each shall retain its separate corporate existence, and the term "Company" will refer to one or the other depending on the circumstances to which it is referred. Your agreement shall be with the entity listed at the end of these Terms and Conditions (the "Terms"). "Yaymaker" is the brand name for Company Events. Paint Nite LLC, Your Nite LLC, and Paint Nite Canada Company are each doing business as Yaymaker. These Terms govern your use of the Venue Program, including all features of the website located at www.yaymaker.com (the "Website"), user experience, and all content associated therewith (collectively the "Service")). By signing up to become a Venue Member, or using, visiting, or browsing the Service, you accept and agree to be bound by these Terms.

All Events organized on the Yaymaker platform are subject to the terms and conditions found here, and the ultimate purchasers of Tickets to Events are subject to separate customer terms of use. These Terms are also a resource for you to get a deeper understanding of how the Service works, including the kinds of data collected, how bills are processed, and how the Company interacts with you and other useful details about the Service. These Terms are between the Company, doing business under the trade name YAYMAKER™, and the company and/or individual identified on the signature page ("Venue Member").

OVERVIEW

Company has developed and offers to the public various events involving group instruction in artistic activities, skills, and crafts, such as (but not limited to) painting, gardening, flower arranging, sign-making, cooking, jewelry-making, paper-craft, game nights, and technology projects ("Events"). Venue Member wishes to become a part of the Yaymaker Platform to hold Events at its location. Events are organized by Event Owners who have a licensing agreement with the Company. These events are instructed through an event leader, referred to herein as a "Host." The Host may be the Event Owner, or a member of the Event Owner’s team. The Event Owner and any team members are independent entities, organizing events to post and promote through the Yaymaker website.

Once on the Platform, Venue Member may request a specific Event Owner to organize Events at their location, or may coordinate with any variety of Event Owners in their area. The Platform allows Venue Members and Event Owners to communicate directly to make arrangements to hold Events. Signing up to become a Venue Member does not obligate Venue Member to hold any minimum number of Events to remain on the Platform.

1. DEFINITIONS

"All Ages Events" means all events denominated "Ages 6+" (intended for families with kids ages 6 and up), "Ages 13+" (intended for families with young teenagers ages 13 and up), and "Ages 18+" (intended for US event customers 18 and up who can paint alongside adults without a parent or guardian being present), as set forth on the Yaymaker calendar.

"Branded Items" means supplies and materials that bear any of the Licensed Marks.

"Confidential Information" means confidential and/or proprietary information such as business plans, knowledge, advice, marketing plans, projections, financial results, contracts, customer data, designs, business models and methods, operating methods, trade secrets, ownership information, and the terms and conditions of this Agreement. Confidential Information does not include information which (1) is or becomes generally available to the public other than as a result of unauthorized disclosure by the receiving party, (2) was available to the receiving party on a non-confidential basis prior to its disclosure to the receiving party, (3) is obtained from third parties not subject to a similar duty to maintain the information as confidential, (4) was developed independently by the receiving party, or (5) is otherwise exempted in this Agreement.

"Corporate Event" means an Event requested by a company or organization solely for the benefit of its own employees and their invitees.

"Event Management System" or "EMS" means the centralized system and integrated technology tools for organizing, promoting, and supporting Events, including but not limited to: (1) creating and managing Event Owner profiles, (2) scheduling Events, (3) selling Tickets, (4) processing payments, (5) determining Event locations, and (6) other Event related functionality. . Venue acknowledges that components of the EMS are proprietary to third parties and that Venue’s use of these components is subject to the user terms of those third parties.

"Event Owner" or "Host" means the individual who delivers group instruction to customers at an Event. If more than one individual does this, each of them is a "Co-Host." "Event Type" means the designation of an Event as Public, Private, Corporate, or Fundraiser.

"Experience Type" means the specific type of artistic activity, skill, or craft in which customers receive group instruction at an Event."Licensed Marks" means, collectively, the Yaymaker™ name and mark and the trademarks, service marks, trade names, logos, and indicia of origin designated by Company for use in connection with each Event Type, including, but not limited to Paint Nite.

"Platform" or "Event Owner Platform" means, collectively, the Event Management System, the Licensed Marks, and the Project Library.

"Private Event" means an Event that is not open for the public to attend , such as a private birthday party or event requested specifically by a customer for a defined group.

"Project" means any original creative work, including but not limited to: (i) paintings, drawings, sketches, stencils, sculptures, software code, photos, videos, and other depictions and representations; (ii) designs for craft projects, jewelry, plantings, flower arrangements, and devices; and (iii) musical compositions in written or auditory form.

"Project Library" means the entire collection of Projects owned by, developed by, acquired by, and contributed to Company to be available for use in Events.

"Public Event" means any Event that is open to the public.

"Space" means a sufficient amount of space available within a Venue Member’s location for each scheduled Event. Venue Member shall only be required to make space available on scheduled Event dates during the hours specified for each Event and the appropriate time needed to set up and break down the event.

"Ticket" means a revocable license to be admitted to an Event.

"Ticket Sales" means the sale of one or more Tickets to an Event, whether sold through the Event Management System, otherwise on-line, through a mobile application, through third-party sale of vouchers (such as, but not limited to, by Groupon), in person, or in any other manner.

"Venue Member" means the owner and/or operator of the Venue.

"Venue Platform" means that part of the EMS that Venue Member has access to and from which Venue Member may sign up to hold Events and request Event Owners for Events.

Other capitalized terms are defined where they first appear in these Terms.

1. SCOPE OF RIGHTS

2.1. Scope of Rights. Company shall permit Venue Member access to the Venue Platform, within the limitations set out in this Agreement.

2.2. All Other Rights Reserved. Company retains all rights not expressly granted to Venue Member by these Terms.

3. ACCESS TO VENUE PLATFORM

Upon execution of this Agreement, Venue Member may join the Platform and have access to Venue Platform. Once this Agreement has been executed by Venue Member and Company, Company will issue all login credentials, administer settings, and determine network security requirements.

Venue Member agrees to comply with Company’s user requirements and security policies for the Venue Platform, as revised from time to time. Venue Member agrees not to share login credentials with any other person, including with any Event Owner or Host. Venue Member is permitted to use Venue Platform only for its purposes outlined in this Agreement, and not for any other purpose. Failure to comply with user or security policies, or the terms of this Agreement will constitute a breach of these Terms, and Company will have the right to immediately suspend Venue Member’s login credentials and to withhold access to the Venue Platform until Venue Member is in full compliance and is approved by Company to remain on the Platform.

4. EVENTS AND TICKET SALES

4.1. Scheduling Events. Venue Member agrees to use only the EMS for organizing and scheduling all Events.

4.2. Ticket Sales. All Tickets to Events are sold directly by Company to customers at the prices determined by Company. Company may offer Ticket Sales through the EMS and/or through other channels in Company’s sole discretion. Venue Member must direct all customers to Company’s Website www.yaymaker.com for Ticket Sales. Venue Member has no authority to alter, add to, or waive any of Company’s terms of sale for Ticket Sales. If applicable, Company will collect from customers any sales taxes, use taxes, value added taxes, and other taxes or duties assessed on Ticket Sales, and Venue Member shall have no obligation to collect any taxes or fees from customers associated with Ticket Sales.

4.3. Walk-Ins. If a "walk-in" customer wishes to purchase a Ticket on-site at an Event, Venue Member must direct the customer to the Website or the Event Owner for further instruction. No cash purchases are permitted.

4.5. Supplies and Materials. Venue Member is not responsible for furnishing any supplies or materials (such items are the responsibility of the Event Owner), and Venue Member is only obligated to supply the Space necessary for an Event and any setup or cleanup needs associated.

4.6. Cancellation of Event(s). Venue Member shall not cancel a scheduled Event or refuse to make Space available for a scheduled Event that has sold ticketsIn the event the Venue cannot host a scheduled event with tickets sold, Venue Member will work together with the Event Owner or other person designated by Company to assist in locating an alternate venue to ensure that the Event is still held. Failure to provide proper cancellation notice and effort to ensure the event is still held shall be considered a material breach of this Agreement.

In the event of inclement weather or a pandemic related shutdown that precludes Venue Member from offering space for a scheduled Event, there shall be no breach of this Agreement, but venue agrees to provide as much notice to Company and the Event Owner as possible.

5. LIMITATIONS ON AUTHORITY

5.1. Company Approval. Venue Member has no authority to incur any liability or obligation on behalf of Company (such as accepting a contract on Company’s behalf). All proposed Events and transactions with customers, Event Owners, and Hosts are subject to review by Company and are not binding until accepted by Company.

5.2. Receipt of Funds. Venue Member has no right or authority to receive or collect monies for or on behalf of Company at any time for any purpose. Any funds Venue Member receives for Ticket Sales at an Event will be deemed held in trust for Company’s benefit, and must be reported and remitted to Company within 24 hours of receipt by Venue Member.

5.3. Non-Competes Prohibited. Venue Member is not permitted to impose non-compete or similar restrictions on Event Owners that would prohibit them from working with other local businesses or Company, or from instructing at Events at other locations.

6. LICENSED MARKS

6.1. Acknowledgments. Venue Member acknowledges that: (a) the Licensed Marks are valid; (b) Venue Member has no right, title, or interest in the Licensed Marks other than the non-exclusive license granted in this Agreement; (c) Venue Member’s use of the Licensed Marks does not convey any ownership interest; and (d) all goodwill associated with and identified by the Licensed Marks belongs exclusively to Company.

6.2. Non-interference. Venue Member agrees not to contest the validity or ownership of the Licensed Marks or take any action detrimental to Company’s rights in the Licensed Marks. Venue Member may not, while this Agreement is in effect or at any time thereafter, anywhere in the world, apply to register or obtain or attempt to obtain ownership of any mark or trade name which is identical or similar to, or that is likely to be confused with or dilute, any of the Licensed Marks.

6.3. Changes. Company has the right to change, discontinue, add to or substitute for any of the Licensed Marks upon reasonable notice to Venue Member. Venue Member agrees to implement any change within a reasonable time after issuance of Company’s notice.

6.4. Third-Party Challenges. Venue Member agrees to notify Company promptly if Venue Member becomes aware of (a) any unauthorized use of the Licensed Marks; (b) any use by others of similar marks; and (c) any challenge to the validity of the Licensed Marks or Company’s ownership of them. Company has the exclusive right, but no obligation, to initiate, direct and control any litigation or administrative proceeding relating to the Licensed Marks.

7. CONFIDENTIALITY

Venue Member and Company acknowledge that the other party’s Confidential Information is a valuable asset and that the other party could suffer irreparable harm from the disclosure of Confidential Information. Accordingly, the parties agree: (1) to hold each other’s Confidential Information in strict confidence and to treat the Confidential Information with at least the same degree of protection afforded to its own Confidential Information, (2) not to disclose Confidential Information to third parties without prior written consent of the other party, and (3) not to use Confidential Information except for purposes necessary to the performance of obligations and the protection of rights under this Agreement. If Venue Member or Company is required to disclose any of the other’s Confidential Information to a third party, Venue Member or Company must promptly notify the other party of the requirements so that the other party may seek an appropriate protective order, assert an appropriate objection, or seek any other appropriate remedy and/or relief and/or waive compliance with the provisions of this Agreement. In the event of any unauthorized disclosure or threat of disclosure of any Confidential Information, the non-disclosing party will be entitled to a preliminary and final injunction, without posting a bond, to prevent any further breach of this Agreement or further unauthorized disclosure or use of Confidential Information. This remedy is separate from any other remedy the non-disclosing party may have. Venue Member further agrees to maintain all customer data as Confidential Information.

8. AGREEMENT TERM AND TERMINATION

8.1. Either party may terminate this Agreement (i) on thirty days advance written notice to the other party, for any reason, or no reason at all, and (ii) immediately in the case of a material breach of this Agreement.

8.2. No Further Use of Platform. Upon termination of this Agreement, the rights granted in this Agreement will terminate without separate notice. Company will disable Venue Member’s login credentials for the EMS and Venue Member must promptly stop all use of the EMS, the Venue Platform, and the Licensed Marks. Venue Member must promptly return or destroy, at Company’s option, all materials that contain Confidential Information of Company and provide written confirmation to Company that the Confidential Information has been returned or destroyed.

8.3. Post-Termination Events. If Venue Member has one or more Events on the EMS calendar scheduled to take place after the effective date of termination ("Post Termination Events"), Company may, in its sole and absolute discretion, opt to run any or all of the Post Termination Events at a different Venue or cancel any or all of the Post Termination Events. Venue Member will have no further responsibilities for any Post Termination Events and agrees not to interfere with them in any way. Venue Member agrees to refer to Company any inquiries received after the effective date of termination concerning Events or Ticket Sales.

8.4. Surviving Obligations. All provisions of this Agreement that by their terms or by reasonable implication are to be performed, in whole or in part, after termination of this Agreement, will survive termination. Venue’s surviving obligations will include (but are not limited to): (i) confidentiality (Section 7), (ii) indemnification (Section 9.6), and (iii) dispute resolution procedures (Section 9.9). Venue Member agrees to keep its contact information up to date with Company so that Company can contact Venue Member.

9. OTHER TERMS

9.1. Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the address provided by the parties below, unless the other party is otherwise notified in writing of an alternate address. The notices shall be deemed to have been given upon the latter of: (a) the date actually delivered or received; (b) the day after the date sent by overnight courier (provided the notice is sent for next day delivery); or (c) four (4) days following the date such notice was mailed by first class mail. Notices may also be sent by email or fax, and are deemed delivered on the day after they are sent.

Notice to Company:

Address:    Paint Nite LLC

                   119 Braintree Street #211

                   Allston MA 02134

                   Attention: Yaymaker Support

                   Email: venues@yaymaker.com

[INSERT VENUE LEGAL ENTITY]

[INSERT ADDRESS]

[INSERT EMAIL ADDRESS]

9.2. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

9.3. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder.

9.4. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement, or permitted successors or assigns, may enforce it.

9.5. Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.

9.6. Indemnification. Venue Member and Venue Member’s owners agree to indemnify, defend, and hold harmless Company, its affiliates, and their respective officers, directors, shareholders, members, managers, employees, and agents (collectively, the "Company Parties") from any claim, demand, government investigation, or legal proceeding arising directly or indirectly from, as a result of, or in connection with: (i) any Event conducted at Venue Member’s location (including contracts with third parties related to an Event); (ii) actual or alleged infringement by Venue Member of any intellectual property rights of any third party; (iii) actual or alleged failure by Venue Member to comply with any applicable law; (iv) any allegation that Company is the employer, co-employer, or joint employer of Venue Member, Venue Member’s owners, or any person performing work for Venue Member; (v) any unauthorized disclosure, security breach, or misuse by Venue Member or Venue Member’s employees of personally identifiable information of Event customers; or (vi) the acts of any Event Owner, Host or customers while at Venue or during the twenty-four hour period following an Event (collectively, "Claims"). This indemnity applies to any and all damages, liability, costs, expenses, and obligations the Company Parties incur as a result of Claims, including but not limited to damages awards, settlement costs, fines, penalties, and interest charges; reasonable accountants', attorneys', legal assistants', arbitrators', and expert witness fees; reasonable costs of investigation and proof of facts; court costs; and reasonable travel and living expenses and other costs and expenses associated with litigation, investigative hearings, or alternative dispute resolution, whether or not a proceeding is formally commenced. This indemnity will survive termination of this Agreement and is not limited to the policy limits of any applicable insurance coverage.

9.7. Contract Changes. Company has the right to update the terms of this Agreement by notifying Venue Member of the change through the EMS or electronic communication at least 30 days before the change is to take effect. Unless otherwise specified, the contract change will apply to any Events on the Schedule at the time that the contract change takes effect. If Venue Member objects to the contract change, Venue Member may terminate this Agreement as set forth in Section 8.1 hereof. If Venue Member does not terminate this Agreement before the time when the contract change takes effect, Venue Member will be deemed to have agreed to the contract change.

9.8. Entire Agreement. The Agreement, together with the other documents specified herein, constitutes the entire agreement between Venue Member and Company. The Agreement supersedes any prior written or oral agreements, representations, correspondence or negotiations between Venue Member, Venue Member’s owners and employees, and Company concerning the subject matter hereof. No representations, understandings, agreements, terms or conditions not contained or referred to in this Agreement are binding on the parties. Except as provided in Section 9.7 hereof, this Agreement can be modified only in a record signed or authenticated by Venue Member and the Chief Executive Officer or Chief Operating Officer of Company.

9.9. Disputes. The Agreement and any claim or dispute arising out of or relating to the Agreement, whether in contract, tort or otherwise, is governed by and will be construed in accordance with the laws of the Commonwealth of Massachusetts, except for any claim or dispute involving employment law issues, which will be governed by the laws of the state in which the Venue Member is located. This Section is not intended to subject the Agreement or the relationship between Venue Member and Company to any Massachusetts statute or regulation that would not apply by its own terms without considering this Section. . The parties waive all objections to personal jurisdiction and venue for the purpose of carrying out this provision, and the parties agree that courts located in the Commonwealth of Massachusetts have exclusive jurisdiction of all disputes between Venue Member and Venue Member’s owners and Company.

9.10. Limitation of Liability. COMPANY AND ITS DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE TO VENUE MEMBER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE THEREOF, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF VENUE MEMBER HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S MONETARY LIABILITY FOR ANY CAUSE OF ACTION EXCEED AN AMOUNT EQUAL TO ONE-HALF OF THE TOTAL REVENUE PAID TO AN EVENT OWNER FOR EVENTS HELD BY THE EVENT OWNER AT THE VENUE MEMBER’S LOCATION BY COMPANY DURING THE ONE (1) YEAR PERIOD BEFORE THE OCCURRENCE THAT GAVE RISE TO THE CAUSE OF ACTION.

9.11. Waiver of Jury Trial. THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

9.12. Class Action Waiver. To the extent permitted by law, Venue Member and its owner(s) waive the right to seek certification of a class in any action, proceeding, or counterclaim against Company.

9.13. Enforcement Expenses. Venue Member agrees to reimburse all expenses reasonably incurred by Company (including attorneys’ fees) to enforce the terms of the Agreement and to defend any claim asserted by Venue Member on which Company substantially prevails, as determined by the court.

9.14. Ambiguity. The parties agree that in the event of any ambiguity in this Agreement there will not be any adverse construction against any party on the grounds that the party drafted this Agreement.

9.15. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

9.16. Not an Employment Relationship. Nothing in the Agreement or in Company’s relationship with Venue Member or its owners is intended to create or may be construed as creating the relationship of employer and employee. Venue Member is an independent entity that is not operating for or on behalf of Company. Except the obligations created hereunder, neither of the parties hereto assert the right to exercise control over the means or manner by which each other conducts business.

9.17. Not a Partnership, Joint Venture, or Franchise. The Agreement and the relationship between Venue Member and Company does not constitute and may not be construed as constituting a partnership, joint venture, or franchise. Except as expressly provided in the Agreement, neither Venue Member nor Company has any right to obligate or bind the other with respect to any third parties.

9.18. Venue Member Employees. Venue Member is solely responsible for the acts and behavior of any employees or contractors Venue Member hires for Venue Member’s business under the Agreement. Venue Member agrees to indemnify Company, as provided in Section 9.6, against any claim that Company is the employer, co-employer, or joint employer of Venue Member or its owners or employees, and for any taxes that a federal, state, or local government determines are due and owing on account of Venue Member, Venue Member’s employees, or Venue Member’s business.

9.19. Severability. If any provision of the Agreement is held unenforceable or illegal by a court of competent jurisdiction, that provision will be severed from the Agreement and all other provisions will remain in full force and effect.

9.20. Authority. The parties acknowledge that the persons executing this Agreement have the authority and consent of each party to do so, and to bind their respective companies to the terms and conditions of this Agreement.

9.21. Execution. This Agreement shall not be binding unless and until it is executed by all parties hereto. The date of execution shall be the date the last party executes the Agreement.

9.22. No implied waiver. No delay or failure by either party to exercise any right under the Agreement or to insist upon strict compliance with any obligation or condition, and no custom or practice that differs from the terms of the Agreement, will constitute a waiver of either parties’ right to exercise the contract provision or to demand strict compliance with the terms of the Agreement. Waiver of a particular default or condition does not affect or impair either parties’ rights with respect to any subsequent default or condition. Waiver of a default by another host does not affect either parties’ right to demand the other party’s strict compliance with the Agreement.

Paint Nite LLC d/b/a Yaymaker,                [INSERT LEGAL NAME OF VENUE],

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By (Sign)                                                       By (Sign)

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Name (Print)                                                Name (Print)

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Title                                                               Title

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Date                                                               Date

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