TERMS AND CONDITIONS
These Terms are also a resource for you to get a deeper understanding of how the Paint Nite Service works, including the kinds of data collected, how bills are processed, how Paint Nite interacts with you and other useful details about the Paint Nite Service. Paint Nite hopes you enjoy your Paint Nite experience.
- The term “Event” means the Event you or the person for whom you purchased the Ticket utilizes the Ticket to attend.
- Payment Method – The term “Payment Method” means the method of your payment for the Ticket that you indicated during your purchase of the Ticket.
- All references herein to “you” or “your” shall mean and refer to the person who purchased the Ticket, and includes any persons that eventually utilize the Ticket to attend the Event.
- The term “venue” shall mean the location where the Event will take place.
- The term “Website” shall mean the website hosted by Paint Nite: www.paintnite.com (and all pages contained therein).
- The term “Ticket” shall mean a revocable license or licenses which you or a person for whom you have purchased the Ticket may utilize to attend the Event, and includes any gift Ticket purchased.
- Work(s) of Art: The term “Work of Art” or “Works of Art” shall include any painting, drawing, sketch, or other depiction or representation uploaded to the Website or otherwise exhibited, in any manner, in the Paint Nite Library.
- HOW THE PAINT NITE SERVICE WORKS
Paint Nite is an entertainment service that will provide an evening of painting instruction at the venue.
Paint Nite reserves the right in its sole and absolute discretion to make changes from time to time and without notice in how Paint Nite operates the Service. Any description of how the Service works should not be considered a representation or obligation with respect to how the Service will always work, as Paint Nite is constantly making adjustments to the Service and often these adjustments are not completely captured within these Terms.
Availability. The availability of Paint Nite events at particular venues will change from time to time and could potentially change on the day of the Event. The availability of a specific artist/instructor at the Event may change at Paint Nite’s sole discretion. While Paint Nite will endeavor to make the artist/instructor you have signed up for available for the Event, the artist/instructor may change at Paint Nite’s sole discretion without notice to you. .
Materials Provided. Paint Nite will provide all paints, canvasses, brushes, easels, and aprons (“Equipment”) for the Event. While Paint Nite maintains quality control over the materials it uses, the quality of the paint, canvasses, brushes, easels, aprons and artist may vary from event to event, and venue to venue, and may be affected by a variety of factors.
End result. Paint Nite makes no representations or warranties about the quality of any painting or individual experience at the Event. Every painting will be unique, and the expectation that your painting will be a facsimile of the painting depicted on the Website is patently absurd.
Start Time. Paint Nite will make every effort to begin the instruction at the designated start time and complete the instruction in under two hours. However, the time it takes to begin and complete the instruction will vary based on a number of factors, and Paint Nite makes no representation as to the exact amount of instruction time at the Event.
Capacity Limitations: You may not be able to attend the Event due to capacity limitations of the venue where the Event takes place. Paint Nite recommends that you arrive at the venue at least 30 minutes prior to the start of the Event.
Paint Nite Paintings. Paint Nite may change which painting will be painted at the Event and may make such change without notice to you.
III. UNAUTHORIZED USE
Paint Nite paintings are developed by, and for, Paint Nite. With the exception of your painting at the Event, you may not copy or reproduce Paint Nite paintings or any portion thereof, and you may not sell, lease or distribute any reproduction of any Paint Nite painting, including the painting that you paint at your Event. Any unauthorized uses of Paint Nite paintings are strictly prohibited.
By using the Paint Nite Service, you are expressly and/or impliedly consenting to receive communications, electronic or otherwise, from Paint Nite. For example, Paint Nite may send you newsletters about new Paint Nite features, special offers, promotional announcements and customer surveys via email or other methods. For Paint Nite's Canadian customers, your express and/or implied consent begins from the moment you utilize the Paint Nite Service, and lasts until you (a) inform Paint Nite that you no longer wish to receive such communications or (b) two years, whichever period is shorter. If you no longer want to receive the newsletters, other promotional announcements or non-transactional communications, simply email email@example.com and ask to be removed from such future correspondence. You may also contact Paint Nite by regular mail at 230 Somerville Ave., Somerville, MA 02143 USA.
In addition, by utilizing the Paint Nite Service you expressly and/or impliedly consent to receiving electronic communications from Paint Nite relative to your purchase, including notices about your purchase (e.g., change in event time or venue or Payment Method, confirmation e-mails and other transactional information), and information concerning or related to the Paint Nite Service. These communications are part of your relationship with Paint Nite and you receive them as part of the Paint Nite Service. You agree that any notice, agreements, disclosure or other communications that Paint Nite sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
Paint Nite will not sell your email address to any third party.
- GIFT TICKET CONDITIONS
When you purchase a gift Ticket, you must select a region (the “Region”) where the gift Ticket will be used from the following three choices: (i) “United States” (which area includes every state except New York), (ii) “New York,” and (iii) “Canada.” Once you have selected the Region, you may only utilized the gift Ticket in that Region.
If you select “Canada” as the Region in which the gift Ticket will be utilized, a confirmation code will be sent to you, and you must then forward the confirmation code to the person(s) for whom you have purchased the gift Ticket. If you select “United States” or “New York” as the Region in which the gift Ticket may be utilized, you may elect to received the confirmation code directly or for Paint Nite to send the confirmation code to any individual you specify, provided they are located in the United States.
Gift Tickets may only be utilized to attend the Event, and may not be exchanged for any other item. Each gift Ticket has a maximum value of either (a) $45 if purchased for the United States or Canada, or (b) $65 if purchased for New York.
Gift Tickets are not refundable and have no cash value. However, gift Tickets may be transferred within the Region you selected at the time of purchase (it wouldn’t be much of a gift if you couldn’t at least do that).
By redeeming your gift Ticket, you agree that Paint Nite has satisfied all of its obligations with respect to the redemption thereof.
Paint Nite promotions may not be combined with any other offers or your Ticket.
You may cancel your evening with Paint Nite at anytime. However, there are no refunds or credits for unused promotional tickets.
Paint Nite may offer a number of special promotional tickets with different limitations. Some of these promotional tickets are offered by third parties in conjunction with the provision of their own products and services. Paint Nite is not responsible for the products and services provided by such third parties. Paint Nite reserves the right to modify, terminate or otherwise amend Paint Nite offered promotional tickets.
By purchasing a Ticket, you are expressly agreeing that Paint Nite is authorized to charge you a fee at the then current rate for such Ticket, and any other charges you may incur in connection with your use of the Paint Nite Service to the Payment Method you provided during your Ticket purchase. Please note that prices and charges are subject to change with notice.
As used in these Terms, “billing” shall indicate either a charge or debit, as applicable, against your Payment Method. The Ticket fee will be billed on the day you purchase the Ticket and not on the day you utilize the Ticket.
You acknowledge that the amount billed for each Ticket you purchase may vary from day to day for reasons that may include differing amounts due to promotional offers, and you authorize Paint Nite to charge your Payment Method for such varying amounts.
Ticket fees and charges are fully earned upon payment. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR UNUSED OR PARTIALLY USED TICKETS. Your Ticket never expires. At any time, and for any reason, Paint Nite may provide a refund, discount, or other consideration (“credits”) to some or all of Paint Nite’s customers. The amount and form of such credits, and the decision to provide them, are at Paint Nite’s sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate Paint Nite to provide credits in the future, under any circumstance. Paint Nite may change the fees and charges in effect, or add new fees and charges from time to time, but Paint Nite will give you advance notice of these changes by email.
Paint Nite will bill the Ticket fee to the Payment Method you provide to Paint Nite during your purchase of the Ticket.
VIII. RIGHT TO TERMINATE
Paint Nite reserves the right to terminate or restrict your use of the Service, without notice, for any or no reason whatsoever.
Paint Nite does not warrant that any of the events or materials used in connection with the Service, nor does Paint Nite warrant the operation of the Service.
IX. SOCIAL MEDIA
You can connect Paint Nite to your Facebook or other social media accounts (“Social Media Accounts”). If you choose to connect your account with any Social Media Accounts, you will be able to take advantage of various social features Paint Nite may already have or will be creating, as part of the Service, as well as features available on such Social Media Accounts. These features will be designed to share information with others - the essence of social media. For example, your friends and others who have access to view information about you on Facebook will be able to see (on Facebook and on Paint Nite) that you are a Paint Nite customer as well as what you have painted, eaten or had to drink, with whom you attended an event, and other information about your use of the Paint Nite service. You will also be able to see similar information about your Facebook friends who are connected with Paint Nite. In addition, Paint Nite may personalize and otherwise enhance your experience based on your Facebook information, such as your basic information, and “Likes.” Please pay careful attention to your Facebook Connect settings in “Your Account” as well as your Privacy Settings in Facebook which will impact this feature and may give you some control over the information that is shared and with whom it is shared.
BY CONNECTING THE PAINT NITE ACCOUNT TO ANY SOCIAL MEDIA ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT YOU TO OTHERS, INCLUDING TO THE RELEVANT SOCIAL MEDIA ACCOUNT (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON SUCH SOCIAL MEDIA ACCOUNT). IF YOU DO NOT WANT INFORMATION ABOUT YOU, INCLUDING INFORMATION SUCH AS YOUR PAINT NITE ACTIVITY, TO BE SHARED IN THIS MANNER, PLEASE CONTACT PAINT NITE AT SUPPORT@PAINTNITE.COM TO HAVE YOUR INFORMATION REMOVED. Paint Nite and social media compannies are continually making changes and improvements to this feature, and therefore the available features and information that is shared may change from time to time. These changes may take place without notice to you and may not be described in these Terms.
X. CUSTOMER REVIEWS
Paint Nite encourages you to post reviews of Paint Nite events through the Service. Paint Nite reserves the right to promote, reject, remove or edit such content at anytime without notice. Reviews should not be posted that contain: harsh, profane or discriminatory language; illegal, obscene, threatening, defamatory or otherwise objectionable content; URLs, phone numbers, mailing or e-mail addresses, personal attacks on Paint Nite or its personnel, misleading information regarding the origin of the content; or a discussion of Paint Nite policies or services. You understand and agree that Paint Nite may, but is not obligated to, review the content and may delete or remove it (without notice) in Paint Nite’s sole and absolute discretion, for any reason or no reason. Please also see “Use of Information Submitted” below.
WHEN YOU HAVE SUBMITTED A REVIEW, PAINT NITE WILL DISPLAY YOUR RATING OF EVENTS. BY SUBMITTING A REVIEW, YOU UNDERSTAND AND AGREE THAT YOU ARE CONSENTING TO THE RELEASE OF ALL INFORMATION PROVIDED IN YOUR REVIEW, INCLUDING YOUR RATING OF AN EVENT, TO A PUBLIC FORUM, INCLUDING OTHER CUSTOMERS OF, AND VISITORS TO, THE PAINT NITE SERVICE. IF YOU DO NOT WANT YOUR REVIEWS TO BE SHARED IN A PUBLIC FORUM, DO NOT USE REVIEW AN EVENT FEATURE.
The Review an Event feature may change without notice to you and the degrees of associated information sharing and functionality may also change without notice.
XI. AGE RESTRICTION
The Paint Nite Service shall not be used by children. The Paint Nite Service is only for adults who are of the legal drinking age (or older) in the venue where your Event is being held. Paint Nite is not responsible in any manner if persons under the legal drinking age where the Event is being held attend the Event. In the event Paint Nite or its licensee discovers that an Event attendee is under the legal drinking age in the venue where your Event is held, Paint Nite or its licensee will refuse to offer instruction to any under age individual, regardless of whether that individual has a Ticket to the Event. Paint Nite has the right to request that you present a valid form of identification demonstrating your age, in which circumstance you agree that you will comply with such request.
At the Event, you may encounter third-party services (“TPS”), including, but not limited to food and beverage service from the venue where your Event will take place. These TPS are provided solely as a convenience to you, and Paint Nite is not responsible for and does not endorse the TPS provided by the venue where your Event will take place. You understand that you are responsible for all additional charges you incur at your Event, including, but not limited to food and beverage charges.
SUCH TPS ARE OWNED OR OPERATED BY THIRD PARTIES THAT ARE NOT RELATED TO, ASSOCIATED WITH OR SPONSORED BY PAINT NITE. Some of these TPS may even use Paint Nite trademarks in connection with your Event. Paint Nite is not responsible for and does not endorse the content of such TPS. You will need to make your own independent judgment regarding your interaction with these TPS. By using such TPS, you acknowledge and agree to the following: (i) your use of any TPS may cause personally identifying information, such as a photo, to be publicly disclosed and/or associated with you, even if Paint Nite has not provided such information, and (ii) your use of any TPS IS AT YOUR OWN OPTION AND RISK. You agree to indemnify and hold Paint Nite harmless for the sharing of information or the receipt of TPS relating to your Event that results from your use of any TPS. You further agree to indemnify and hold Paint Nite harmless from all claims involving or relating to the provision of TPS. If you have any questions, concerns, complaints, or claims about a particular TPS, you should contact the support or contact personnel of the particular TPS provider and not Paint Nite, unless otherwise indicated by Paint Nite. PAINT NITE DISCLAIMS ALL LIABILITY ARISING FROM YOUR USE OF TPS. You agree to defend and indemnify Paint Nite for any and all claims made as the result of the provision of TPS at your Event.
XIII. DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILTY
THE PAINT NITE SERVICE, PAINT NITE’S WEBSITE, AND ALL CONTENT ASSOCIATED THEREWITH, ANY OTHER FEATURES ASSOCIATED WITH THE PAINT NITE SERVICE, AND YOUR EVENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. PAINT NITE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PAINT NITE SERVICE, PAINT NITE’S WEBSITE, AND ALL CONTENT ASSOCIATED THEREWITH, ANY OTHER FEATURES ASSOCIATED WITH THE PAINT NITE SERVICE, AND YOUR EVENT. PAINT NITE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE PAINT NITE SERVICE, PAINT NITE’S WEBSITE, AND ALL CONTENT ASSOCIATED THEREWITH, ANY OTHER FEATURES ASSOCIATED WITH THE PAINT NITE SERVICE, AND YOUR EVENT WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT PAINT NITE MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE PAINT NITE SERVICE AND YOUR EVENT, INCLUDING FEATURES, WITHOUT COMPENSATION OR NOTICE TO YOU. PAINT NITE SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF TPS, PAINT NITE PAINTINGS, AND EQUIPMENT. Without limiting the foregoing, Paint Nite assumes no liability or responsibility for any of the following (except in the case of gross negligence or willful misconduct on the part of Paint Nite): (i) errors or omissions in the content delivered by the Paint Nite Service or on the Paint Nite Website or user interfaces; (ii) recommendations or advice of Customer Service; (iii) any failure or interruption in the availability of the Paint Nite Service and/or Website or user interfaces; (iv) delivery and or display of any content contained on the Paint Nite Website, or otherwise through the Paint Nite Service; and (v) any losses or damages arising as a result of or related to your Event, the provision of TPS at your Event, the consequences of the provision of TPS at your Event, or otherwise through the Paint Nite Service itself, including any losses or damages arising from the Paint Nite Service, Website, Equipment, your Event, or TPS. PAINT NITE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, FOR EXAMPLE, WARRANTIES OF SATISFACTORY QUALITY OF YOUR PAINTING. In addition, Paint Nite does not represent or warrant that the information accessible via the Website is accurate, complete or current. Paint Nite does not make any representations with respect to the content contained on events from the Paint Nite Service or the descriptions of any event content contained on Paint Nite’s Website and user interfaces. Paint Nite does not represent or guarantee that your use of the Paint Nite Service will be free from interruption, and Paint Nite disclaims any liability with respect thereto. No oral or written information or advice given by Paint Nite or Paint Nite’s authorized representative shall create a warranty or otherwise constitute a representation binding upon Paint Nite.
IN NO EVENT SHALL PAINT NITE, OR ANY OF ITS MANAGERS, MEMBERS, EMPLOYEES, AGENTS, LICENSEES, EVENT INSTRUCTORS, EVENT ASSISTANTS, AND SUCCESSORS OR ASSIGNS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PAINT NITE SERVICE, THE WEBSITE, TPS, YOUR EVENT, AND ALL CONTENT ASSOCIATED THEREWITH, OR OTHERWISE RELATED TO THE PAINT NITE SERVICE, AND FEATURES OR FUNCTIONALITIES ASSOCIATED THEREWITH. IN NO CIRCUMSTANCE SHALL PAINT NITE’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES OR LOSSES ARISING FROM THE PAINT NITE SERVICE, PAINT NITE’S WEBSITE, AND ALL CONTENT ASSOCIATED THEREWITH, ANY OTHER FEATURES ASSOCIATED WITH THE PAINT NITE SERVICE, AND YOUR EVENT EXCEED THE MAXIMUM OF THE TICKET PRICE FOR THE EVENT.
XIV. INTELLECTUAL PROPERTY
Paint Nite is a registered trademark of Paint Nite LLC. The Paint Nite logo and Paint Nite.com are trademarks or service marks of Paint Nite. The Website, including but not limited to its graphics, logos, page headers, button icons, scripts and service names constitute trade dress of Paint Nite. The trademarks, service marks and trade dress of Paint Nite may not be used or reproduced without prior written approval from Paint Nite and may not be used in connection with any product or service that is not affiliated with Paint Nite, in any manner that is likely to cause confusion among customers, in any manner that dilutes the rights of Paint Nite, or in any manner that disparages or discredits Paint Nite. Other trademarks that appear on the Website and user interfaces are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Paint Nite. Any images of persons or personalities contained on the Website are not an indication or endorsement of Paint Nite or any particular product or our service unless otherwise indicated.
You agree that Paint Nite is and shall remain the sole owner of all rights, title, and interest in and to any and all Works of Art, and that you shall only have the limited right to utilize a Work of Art for your Event and/or the promotion of an Event, and for no other purpose. At the conclusion of your Event, you may take your own painting with you. You further agree that you will not reproduce, copy, or otherwise distribute for profit the image you painted (or any reproduction thereof).
You acknowledge that you do not have, acquire or retain any rights to any such Works of Art after the end of your Event (or after repeat Events utilizing the same Work of Art).
You acknowledge that any photographs taken at your Event by Paint Nite, any instructor, assistant, or Paint Nite’s licensee (“Licensee”) or the agent or employee of a Licensee, which photographs depict in any manner the artwork, the set-up of your Event, the participants or instructors or staff at your Event, you, or the equipment, materials, supplies or marketing materials related to Paint Nite in any way shall become the property of Paint Nite, may not be reproduced or utilized except as authorized by Paint Nite, and that Paint Nite is free to use all such materials at Paint Nite’s sole and absolute discretion, including photoshopping and/or altering any portions of any such photographs.
XV. ENTERTAINMENT AND SERVICE CONTENT
Paint Nite provides entertainment and reserves the right to display and promote the filmed or photographed entertainment or other information through the Service, including the Website and user interfaces, such as Facebook, to you and others in any manner Paint Nite chooses in its sole and absolute discretion. In addition, the Service allows you and other third parties to post reviews or comments concerning the entertainment distributed by Paint Nite on Social Media Accounts. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties through the Service are those of the respective authors or producers and not of Paint Nite, or its members, directors, officers, employees, attorneys, affiliates, successors, or assigns. Under no circumstances shall Paint Nite, or its members, directors, officers, employees, attorneys, affiliates, successors, or assigns be held liable for any loss or damage caused by your reliance on information obtained through the Service. It is your responsibility to evaluate the information, opinion, advice, or other content available through the Service.
XVI. USE OF INFORMATION SUBMITTED
Paint Nite is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to Paint Nite (“Feedback”), including responses to questionnaires or through postings to the Paint Nite Service, including the Website, without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Paint Nite Service. Paint Nite may also share your information with third parties for purposes of Paint Nite’s business. Furthermore, by posting any Feedback on the Website, submitting Feedback to Paint Nite, or in responding to questionnaires, you grant Paint Nite a perpetual, worldwide, non-exclusive, royalty-free irrevocable license, including the right to sublicense such right, and right to display, use, reproduce or modify the Feedback submitted in any media of any kind now existing or developed in the future.
Please note Paint Nite does not accept unsolicited materials or ideas for use or publication, and is not responsible for the similarity of any of its content in any media to materials or ideas transmitted to Paint Nite. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against Paint Nite, its members, directors, officers, employees, attorneys, affiliates, successors, or assigns regarding the use of such materials and ideas, even if materials or ideas are used that are substantially similar or identical to the material or idea you sent.
XVII. SERVICE TESTING
From time to time, Paint Nite tests various aspects of the Service, including the Website, user experience, service levels, plans, promotions, features, availability of venues, delivery, and pricing, and Paint Nite reserves the right to include you in or exclude you from these tests without notice.
XVIII. CUSTOMER SERVICE
If you need assistance, you may find answers and reach Customer Service at any time at firstname.lastname@example.org. Also you can visit Paint Nite’s FAQ page at www.paintnite.com where you will find the answers to many frequently asked questions.
XIX. YOUR CONDUCT WHEN ACCESSING THE PAINT NITE SERVICE
By accessing the Paint Nite Service, including the Website, you agree to use the Paint Nite Service, including all features and functionalities associated therewith, the Website and user experience and all content associated therewith in accordance with all applicable laws, rules and regulations, including public performance limitations or other restrictions on use of the service or content therein. You also agree not to interfere with the instructors, customers or anyone connected to any portion of the Paint Nite Service, or to violate any of the procedures, policies or regulations of establishments or venues connected to the Paint Nite Service. You also agree not to impersonate any other person while using the Paint Nite Service, conduct yourself in a vulgar or offensive manner while using the Paint Nite Service, or use the Paint Nite Service for any unlawful purpose.
XX. LINKS AND PAGES
XXI. PROMOTIONS WITH TICKET CODES
Promotional codes may be redeemed on the Website. Promotional codes can only be used once and cannot be redeemed for cash, resold or combined with any other offers. A valid Payment Method will be required when you redeem the promotion code. Paint Nite will bill your Payment Method automatically. Promotional codes may not be used in conjunction with your gift Ticket purchase.
XXII. ARBITRATION AGREEMENT
You and Paint Nite agree that any dispute, claim, action, or controversy arising out of or relating in any way to the Paint Nite Service, including the Website, user interfaces, these Terms, the Ticket you purchase, and the Event shall be determined by binding arbitration instead of in courts. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to limited review by courts. Arbitrators may award the same damages and relief that a court can award. You, including all Event attendees for whom or who actually utilize the Ticket purchased by you (“Event Attendees”), and Paint Nite agree that Mass. Gen. Laws c. 251, et seq., governs the interpretation and enforcement of this provision, and that you and Paint Nite are waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and the conclusion of the Event.
If you elect to seek arbitration, you must first send to Paint Nite, by certified mail, a written notice of such claim (“Notice”). The Notice to Paint Nite must be addressed to: General Counsel, Paint Nite, LLC, 230 Somerville Avenue, Somerville, MA 02143. The Notice must state the basis of such claim, including all facts related to such claim, all witnesses to such claim, and a complete statement of the damages such claim seeks, including a description of how such damages are calculated.
YOU, INCLUDING ALL EVENT ATTENDEES, AND PAINT NITE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Paint Nite agree otherwise, the arbitrator may not consolidate more than one person’s claims with another person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
XXIII. GOVERNING LAW AND VENUE
The Terms and the policies and procedures set forth on the Website and any and all disputes between you, including all Event Attendees, and Paint Nite shall be governed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles, and, as necessary the laws of the United States of America.
You and Paint Nite agree that any proceeding involving any dispute, claim, action, or controversy arising out of or in connection with your purchase of your Ticket shall be arbitrated, as set forth in Section XXI hereof, solely and exclusively in the Commonwealth of Massachusetts, Suffolk County, before either (i) JAMS arbitration service, (iii) the American Arbitration Association, or (iii) such other arbitrator as may be agreed to by you and Paint Nite in writing.
This Governing Law and Venue provision shall survive termination of these Terms and the conclusion of the Event.
In the event the agreement to arbitrate is held to be invalid or unenforceable, which decision shall be made by the arbitrator only, you and Paint Nite agree that any action or proceeding involving any dispute arising out of or in connection with your Event, these Terms or the policies and procedures set forth on the Website shall be brought only in the Commonwealth of Massachusetts, and you and Paint Nite hereto irrevocably consent and submit to the exclusive jurisdiction within the Commonwealth of Massachusetts in respect of any such proceeding before (i) the federal District Court for the District of Massachusetts, located in Boston, Massachusetts or (ii) the Massachusetts Superior Court, Middlesex County.
XXIV. WAIVER OF RIGHTS
The failure of Paint Nite at any time or times to demand strict performance of any of the terms, covenants, or conditions set forth herein shall not be construed as a waiver or relinquishment thereof and Paint Nite may at any time demand strict and complete performance of said terms, covenants and conditions.
XXV. SIGNIFICANCE OF HEADINGS
Section headings contained within these Terms are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of these Terms. Accordingly, in case of any question with respect to the construction of these Terms, it is to be construed as though such section headings have been omitted.
If any provision of these Terms is held to be unenforceable or illegal, such provision shall be severed from these Terms, and all other provisions set forth herein shall remain in full force and effect.
XXVII. NO ADVERSE CONSTRUCTION
You agree that in the event of any ambiguity in these Terms, there will not be any adverse construction against either you or Paint Nite on the grounds that Paint Nite drafted these Terms.
Both your and Paint Nite’s obligations in these Terms, which by their nature, have significance after the conclusion of the purchase of your Ticket and attendance at the Event, shall survive the termination or expiration of these Terms and the conclusion of the purchase of your Ticket and attendance at the Event.
You represent and warrant that you have the full right, power, and authority to enter into these Terms on behalf of yourself and any Event Attendees.
XXX. FURTHER ASSURANCES
You agree that you shall, at the request of Paint Nite, execute and deliver such documents, certificates, and other writings, and take such other actions as may be necessary or desirable, to accomplish the goals of these Terms.
XXXI. FORCE MAJEURE
Neither you nor Paint Nite shall be liable for the failure to perform any of the obligations hereunder (other than the payment of money) during any period in which such performance is delayed by fire, flood, earthquake, other natural disaster, war, embargo, riot or the intervention of any government authority, provided that the party that is unable to perform immediately notifies the other party of such inability.
XXXII. ELECTRONIC TRANSACTIONS
You agree to conduct transactions, including, but not limited to the purchase of your Ticket and the acknowledgement of these Terms and future transactions, by electronic means.
XXXIII. DEFENSE AND INDEMNITY
You agree to defend, indemnify, and hold Paint Nite harmless with respect to (i) all disputes, claims, actions, or controversies related in any way to the purchase of your Ticket and (ii) all diputes, claims, actions, or controversies related in any way to any Event Attendees’ attendance of the Event, and that such defense and indemnity shall include all expenses, costs, liabilities, judgments, awards, and attorneys’ fees incurred by Paint Nite that are related to such circumstances.