Yaymaker™ Terms of Use for Private Events

This Privacy Policy was last updated on November 13, 2023.

Thank you for signing up for your private Yaymaker event (the "Event")! Solely for purposes of these Terms of Use (the "Terms") and ease of reference, Paint Nite LLC, Your Nite LLC, and Paint Nite Canada Company are referred to herein as the "Company" 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. Yaymaker is the brand name for Company events, and references to Yaymaker include Paint Nite LLC, Your Nite LLC and Paint Nite Canada Company. These Terms govern your use of the Services and the ticket(s) you purchased (the "Ticket"), as well as the use of the Ticket, all features of the website located at www.yaymaker.com (the "Website"), user experience, and all content associated therewith (collectively the "Services"). By using, visiting, or browsing the Services, you accept and agree to be bound by these Terms. All references to "you" or "your" mean and refer to the client purchasing the Services from the Company (the "Client").

These Terms are also a resource for you to get a deeper understanding of how the Services works, including the kinds of data collected, how bills are processed, how the Company interacts with you and other useful details about the Services. The Company hopes you enjoy your experience.

Company and Client agree as follows:

1. Services

The Company connects its clients with venues, vendors, merchants and other event related service and product providers (each a "Merchant"), provides an event marketplace, (the "Marketplace"), and facilitates the organization, planning and management of events (each an "Event") for its clients.

Any description of how the Services work should not be considered a representation or obligation with respect to how the Services will always work, as the Company is constantly making adjustments to the Services and often these adjustments are not completely captured within these Terms.

a. Choice of Instructor

While the Company will endeavor to make the artist/instructor you have requested available for the Event, the availability of a specific artist/instructor at the Event may change at the Company's sole discretion without notice to you.

b. Materials Provided

The Materials, including all paints, canvases, brushes, easels, aprons, Plantings and other supplies necessary for the Event (to be determined in the sole judgment of the Company) ("Equipment") will be provided for the Event. The quality of the paint, canvases, brushes, easels, aprons, Plantings or other Equipment and the artist/instructor may vary from event to event, and venue to venue, and may be affected by a variety of factors outside of the control of the Company.

To the extent there will be additional guests from your initial inquiry you must inform the Company of the number of additional Event Attendees at least ten (10) business days in advance of the Event, in order to allow for the proper number/amount of supplies to be at the Event.

c. End Result

The Company makes no representations or warranties about the quality of the painting and/or project of Event Attendees or the individual experiences of Event Attendees. Every painting and/or project will be unique and the expectation that any painting and/or project Planting created at the Event will be a facsimile of the Work of Art depicted on the Website is patently absurd.

d. Start Time

The Company will make every effort to begin the instruction at the designated start time and complete the instruction in approximately two hours. However, the time it takes to begin and complete the instruction will vary based on a number of factors, and the Company makes no representation as to the exact amount of instruction time at the Event.

Should the event start time be delayed due to the Event Attendees arriving late and/or the Yaymaker Event Host not being able to start the event on time due to venue restrictions there will be additional charges.

e. Capacity Limitations

The venue may have capacity limitations for the Event. You must provide a final headcount to the Company at least 10 days prior to your Event. To the extent you increase the number of Event Attendees after you originally schedule the Event, there may not be enough space to accommodate the increased number. The Company recommends that you arrive at the venue 30 - 40 minutes prior to the start of the Event.

Only Event Attendees approved by you may attend your Event.

2. Event Details

Client may select from Event offerings on the website (yaymaker.com or paintnite.com) which provide all of the relevant Event details, including, as applicable, pricing, venue information, minimum and maximum number of event guests, event times, and any other relevant event details (the "Event Details"). For Event packages not listed on the website, the Event Details are those provided by Company in writing related to the Event. Once a Client has completed the checkout process, the Event is subject to the Event Details and these Commercial Terms and Conditions (collectively, the "Terms").

3. Headcount and Other Post-Checkout Adjustments

Client shall provide Company with the number of event guests 10 days prior to the confirmed event date. Each Event will have a minimum number of event guests (15) and a maximum number of event guests (varies on event experience). Your final guest count is due ten (10) days prior to the event date at which point your event planner will send a finalized digital invoice and request payment. No refunds will be given if the guest count drops after the final payment is made or if attendance is less than the final count provided. Company shall use commercially reasonable efforts to accommodate post-confirmation and final payment requests to increase the number of event guests, but cannot guarantee the same. If Company agrees to any increase in the number of event guests, such increase will not be confirmed until Company receives payment for such increase. Company's inability to accommodate an increase in the number of event guests is not grounds for a cancellation of the Event. Client shall pay the Merchant directly (i) for any increase in the number of event guests requested on the day of or at the Event (provided the Merchant can accommodate the same) and (ii) any other post-checkout adjustments to the Event Details requested by Client and accommodated by the Merchant, as determined by the Merchant in its sole discretion, on the day of or during the Event (collectively, "Incidentals"). Such Incidentals may include, but are not limited to, Event duration, and use of onsite AV. Notwithstanding anything to the contrary, an Event time or date may only be rescheduled in accordance with Section 7 below.

4. Client Responsibilities

In connection with its booking of an Event, Client acknowledges that it has reviewed and therefore agrees to the Terms. Client is solely responsible and liable for its actions and the actions of its event guests and for its compliance and compliance by its event guests with: (a) all Merchant 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 Event. If the Merchant, 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 Company will be managing invitations for the Event, Client shall provide Company with such information as is reasonably required by Company in connection with such invitation management. All invitations and any related promotional materials with respect to the Event shall be subject to any applicable Merchant, entertainer or any other similar requirements or restrictions. Unless otherwise agreed to by the venue Merchant, at the conclusion of an Event, Client shall, and Client shall cause its event guests to, leave the venue where the Event occurred on or before the Event ending time, or if no ending time is set forth in the Event Details, promptly after the conclusion of the Event. Any media coverage of the Event is subject to the advance written approval of the Merchant. Company is not responsible for any packages sent to any Merchant for use at an Event and delivery of such packages shall be subject to any applicable Merchant requirements and restrictions. Neither the Merchant nor Company makes any representation or warranty regarding use of any portion of the Merchant not reserved for the Event (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 events at the Merchant (unless Client has exclusively reserved the entire Merchant) are not suitable grounds for cancellation or non-payment and does not necessitate or obligate any refund. The Merchant where the Event is occurring may take any actions necessary in their reasonable judgment to protect the health, safety and welfare of their employees, agents, event guests and other Merchant guests, customers and the public, including, asking event guests who do not follow applicable rules to leave the Event, restricting access to the Event, and monitoring the Event room for capacity and crowd control and no such actions entitle Client to any form of reimbursement, refund or compensation. Client and its event guests must follow all instructions and requests issued by Merchant security and staff. Neither the Merchant nor Company is responsible for personal items and other articles lost, stolen, damaged prior to, during, or following the Event, or personal items and other articles left over night at the Merchant. Client shall not sell tickets for admission to the Event. Client shall not operate any equipment or materials belonging to the Merchant or any service providers. No signage is allowed at or around the Merchant, without written advance approval from the Merchant.

5. Payment

Client shall pay Company in the amounts, at the rates, and on the terms set forth in the relevant Event Details and invoices, as supplemented by the charges related to any change in headcount or other post-checkout adjustment pursuant to Section 3. Except as otherwise agreed by the parties in a signed writing or in the Event Details, payment for the Event is due at checkout and any amounts specified by Company as not yet due at checkout are due no later than 14 days prior to the Event date. Notwithstanding any partial prepayment, retainer or deposit, an Event is deemed reserved and secured, and will remain reserved and secured, only if full Event cost payments are made by the dates they are due. If any amount is not paid by the date it is due (each, a "Payment Failure"), then such amount is subject to a late fee of 1.5% per month or the maximum rate permitted by law, whichever is less, and Company may, at Company's sole option: (i) suspend or terminate the Services, (ii) cancel the Event, (iii) forfeit the planned Event date, and (iii) seek collection of all amounts due, including but not limited to Legal Costs (as defined below).

6. Cancellation Policy

Refunds. Ticket fees and charges are fully earned upon payment. Company will require the payment for a minimum number of tickets as specified in the Event Details to confirm your Event. Company will set up a payment link where you can submit payment via credit card. Your payment is non-refundable, but may be used as a credit towards a future event, if you cancel more than 15 days before the Event, but in such case you may only reschedule your Event once. Payment is not refundable if your Event is cancelled within 15 days of the Event.

Events can be set up through the Yaymaker private events team. Events require an initial deposit ("Deposit") which will be returned to you on the date of your Event if (i) your Event is held and (ii) you have paid for your Event in full. Once a Deposit is made, it is not refundable if your Event is not held.

Force Majeure. If Company provides Client notice that it is unable to proceed with the Event because of an event of force majeure, including but not limited to if a Merchant is double booked or otherwise unavailable at the time of Client booking, or any other reason or circumstance beyond Company's reasonable control, including any act of God, criminal acts, Distributed Denial of Service, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, pandemics, or any act or failure to act by Client, its employees, agents, or contractors, then Company will not be deemed to be in breach in its performance of any obligation under these Terms and shall, at Company's option, either: (1) refund to Client any amounts prepaid by Client for the Event subject always to the amount recovered by Company from the Merchant, or (2) reschedule the Event or, subject to Client's approval, provide a comparable substitute Event (provided Client pays any increased costs arising out of such comparable substitute Event). Client agrees and acknowledges that any amount paid by the Client for an Event may be remitted to the Merchant by Company and may not retained by Company and if the Merchant does not refund the price paid for the Event, Company is not responsible to provide any refund or Company Credit to the Client.

7. Event Rescheduling Policy

Unless the Event Details provide that an Event is non-cancellable, final sale or subject to the Company's Ticket Policy, if Client provides written notice to Company that it intends to cancel an Event at least 15 days prior to the event date and indicates at the time of cancellation that it desires to reschedule the Event with the same Merchant as the canceled Event, but at a different time and/or date ("Rescheduled Event"), then Company may reschedule the Event without Client incurring a Cancellation Fee, subject to the following conditions: (a) the date and time of the Rescheduled Event is subject to the availability and approval of the Merchant; (b) Client and the Merchant, within thirty (30) days after the date of the canceled Event, agree upon a date and time for the Rescheduled Event; (c) the date of the Rescheduled Event is within ninety (180) days of the date of the canceled Event; and (d) the Event was not already a Rescheduled Event. Any reschedule request for an already Rescheduled Event is deemed a canceled Event, and is subject to the Cancellation Fee.

8. Privacy Policy and communication with you

Any personally identifying information submitted through the Services is subject to the Company's Privacy Policy, the terms of which are incorporated herein by reference.

By using the Service, you are expressly and/or impliedly consenting to receive communications, electronic or otherwise, from the Company notwithstanding that you signed up for a Yaymaker event. For example, the Company may send you newsletters about new Company features, special offers, promotional announcements and customer surveys via email or other methods. For Canadian customers, your express and/or implied consent begins from the moment you utilize the Service, and lasts until you (a) inform the Company 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 hello@yaymaker.com and ask to be removed from such future correspondence. You may also contact the Company by regular mail at 119 Braintree Street, #211 Allston, MA 02134 USA.

In addition, by utilizing the Services you expressly and/or impliedly consent to receiving electronic communications from the Company 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 Service. These communications are part of your relationship with the Company and you receive them as part of the Service. You agree that any notice, agreements, disclosure or other communications that the Company sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.

The Company will not sell your email address to any third party.

9. Representations and Warranties

Company and Client 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) the 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.

Client represents and warrants that it is not and will not utilize the Services for any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a "Specially Designated National," a "Specially Designated Global Terrorist," a "Blocked Person," or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and Company may immediately terminate this Agreement.

10. Telephone Orders

By placing a telephone order through a Company representative, Client is bound by the Terms, including but not limited to the representations and warranties set forth in Section 8.

11. Company Content

All ideas, proposals, concepts, content, materials, works and deliverables presented by Company or otherwise developed or produced by Company hereunder, including any works that might be deemed to be derivative works of works owned by Client, but specifically excluding any Client owned intellectual property (collectively, the "Company Content") are and shall remain the exclusive property of Company and Company retains all rights regarding the same, including, the sole right to implement, use, publish, perform and/or publicly disseminate the Company Content. Without Company's prior written consent, Client shall not use any Company Content.

Client shall not disclose to anyone any proprietary or confidential information of Company which it may receive through the Services, and it will not use any such information to compete against Company or reverse engineer our product offerings.

Client agrees that it will not copy, record, publish, compile, reproduce, republish, use or resell for any competing commercial purpose any Company Content. In addition, Client agrees to pay all reasonable attorney's fees and costs incurred in enforcing these provisions.

12. Aggregate Data

Client acknowledges and agrees that Company may use all data inputted into or collected by the Services, on a historical, aggregated and anonymous basis (collectively, "Aggregate Data") in compliance with applicable laws and Company's Privacy Policy, which is incorporated herein by reference, to provide the Services and for any commercial purposes, including but not limited to the distribution and provision of the Aggregate Data to other Company Clients and for the preparation and distribution of benchmarking, research, and/or analytical materials. Aggregate Data shall not identify Client as the source of any specific data, pattern or finding, nor shall it include any personally identifiable information of any individual users of the Services. Company shall maintain appropriate security measures for all Aggregate Data in accordance with the terms and conditions of this Agreement. Company will be the sole and exclusive owner of all right, title and interest to such Aggregate Data and, notwithstanding anything to the contrary, shall be free to use and disclose on a world-wide and royalty-free basis the Aggregate Data for its business purposes including, but not limited to, publicizing usage of the Services, providing information on general industry trends, and providing benchmarking data to Company Clients.

13. DISCLAIMER

Client understands that Company is not the Merchant and the only warranties offered with respect to the Event Details are those of the Merchant, not Company. Company, as part of the facilitation Services it provides to Client, will utilize commercially reasonable efforts to enforce the warranties contained in the Event Details from the Merchant to Client, however, Client understands and agrees that Company is not liable in any way for any damage or responsibilities in warranting Client. In purchasing the Services, Client is relying on the Event Details only and is not relying on any statements, specifications, photographs or other illustrations that may be provided by Company. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE SERVICES AND COMPANY CONTENT ARE PROVIDED "AS IS," AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, CORRESPONDENCE TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SECURITY.

CLIENT AGREES AND ACKNOWLEDGES THAT THE CLIENT MAY SHARE CLIENT DATA INCLUDING PERSONAL INFORMATION DIRECTLY WITH THE MERCHANT TO AVAIL THE MERCHANT SERVICES. COMPANY ONLY SOURCES THE EVENTS AND PACKAGES BUT DOES NOT PROVIDE THE MERCHANT SERVICES. COMPANY DOES NOT WARRANT OR REPRESENT THAT THE MERCHANT HAS ESTABLISHED INFORMATION SECURITY POLICIES AND PROCEDURES TO ENSURE THE SECURITY AND CONFIDENTIALITY OF CLIENT DATA INCLUDING PERSONAL INFORMATION PROVIDED TO THE MERCHANT BY THE CLIENT AND CLIENT AGREES THAT COMPANY TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY OR INDEMNITY TO CLIENT OR ITS REPRESENTATIVES, USERS OR ANY OTHER PARTY RELATED TO ANY SUCH CLIENT DATA INCLUDING PERSONAL INFORMATION UNDER THIS AGREEMENT.

14. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, COMPANY SHALL NOT HAVE ANY LIABILITY TO CLIENT, ANY EVENT 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 CLIENT, ANY EVENT 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 EVENT, UNLESS SUCH LOSSES ARE SOLELY CAUSED BY THE WILLFUL MISCONDUCT OF A COMPANY 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, CLIENT, EVENT GUEST AND EACH OTHER PERSON AGREES THAT THE SOLE AND TOTAL LIABILITY OF COMPANY SHALL BE LIMITED, IN THE AGGREGATE, TO THE LESSER OF: (1) THE NET AMOUNT RETAINED BY COMPANY WITH RESPECT TO THE EVENT; OR (2) ONE THOUSAND DOLLARS ($1,000). NEITHER PARTY TO THE TERMS 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. These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.

15. ASSUMPTION OF RISK AND RELEASE

THE PARTICIPATION OF CLIENT AND ITS EVENT GUESTS IN THE EVENT IS VOLUNTARY AND FOR THEIR SOCIAL ENJOYMENT. CLIENT RECOGNIZES AND HAS INFORMED ITS EVENT GUEST THAT PARTICIPATION IN THE EVENT MAY INVOLVE RISKS AND DANGERS, INCLUDING, RISKS OF PERSONAL INJURY, ILLNESS, OR DEATH, PROPERTY LOSS, RISKS RELATED TO CONSUMMATION OF FOOD OR DRINK AND FIRST AID AND EMERGENCY TREATMENT, AND CLIENT FREELY ASSUMES ALL SUCH RISKS, INCLUDING ANY UNFORESEEN RISKS. TO THE FULLEST EXTENT PERMITTED BY LAW, CLIENT WAIVES ALL CLAIMS, FOREVER RELEASES AND PROMISES NOT TO SUE COMPANY FOR ANY AND ALL LOSSES RELATED TO OR ARISING FROM ITS PARTICIPATION IN THE EVENT BY CLIENT, ANY EVENT GUESTS AND ANY OTHER PERSONS AND INTENDS THAT THIS RELEASE IS INTENDED TO BE A COMPLETE AND UNCONDITIONAL RELEASE. CLIENT 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.

16. Indemnification

To the fullest extent not prohibited by applicable law: (a) Client agrees to indemnify, hold harmless and defend Company and its respective officers, directors, shareholders, employees, agents, representatives, successors and assigns (collectively, "Company Indemnified Persons") from and against any and all Losses, including judgments, interest thereon, 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 Client set forth herein and (ii) any acts or omissions of Client or any Event 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").

If a party or any third party notifies a party hereunder (the "Indemnified Party") with respect to any Claim or Client Claim, as the case may be that gives rise to a claim for indemnification hereunder (the "Indemnifying Party"), then the Indemnified Party shall promptly notify the Indemnifying Party in writing and the Indemnifying Party has the right to assume the defense of such claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 30 days after the Indemnified Party has given notice of such claim. The Indemnifying Party must actively and diligently conduct the defense of the Third-Party Claim. The Indemnified Party may retain separate co-counsel at its sole cost and participate in the defense of the Claim or Client Claim. If the Indemnifying Party has assumed and is conducting the defense of the Claim or Client Claim in accordance with the provisions hereof, the Indemnifying Party will not consent to the entry of any judgment or any settlement without the consent of the Indemnified Party, not to be unreasonably withheld. If the Indemnifying Party does not assume and conduct the defense, the Indemnified Party may defend the claim in any manner it deems appropriate and the Indemnifying Party will be responsible for any Losses of the Indemnified Party hereunder.

17. Taxes

Except as is otherwise provided in the Event Details, Client is responsible for payment of any taxes with respect to any Event, including any amusement or similar taxes. If Client is a not for profit organization and is exempt from sale, use or any similar taxes and has furnished to Company evidence of the same, including its tax exempt certificate, then and only then shall Client be exempt from such sale, use or any similar taxes as permitted by applicable law. Until Company has received such evidence as is reasonably requested by Company with respect to such exemption, Client shall be responsible for the payment of all sale, use or any similar taxes.

18. General Provisions

All prior understandings and agreements, oral or written, between the parties in connection with the subject matter of the Terms are superseded by 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 Client 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 Client's terms, invoices, acknowledgments or otherwise. Company may amend these Commercial Terms and Conditions at any time in its sole discretion, effective upon posting the amended Commercial Terms and Conditions at the domain of www.yaymaker.com where the prior version of the Commercial Terms and Conditions was posted. No terms, provisions or conditions or any ambiguity of the Terms shall be construed against Company because it drafted the Terms. The Terms have been and are made solely for the benefit of Client, Company, the parties indemnified hereunder, and their respective successors and assigns and without limiting the foregoing, the Merchant is the intended third party beneficiary of Sections 13 (Limitation of Liability), 14 (Assumption of Risk and Release) and 15 (Indemnification) and shall have the right to enforce the same with regard to Client or its event guests as if they were a party to the 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. The Company reserves the right to terminate or restrict your use of the Service, without notice, for any or no reason whatsoever. The Company does not warrant that any of the events or materials used in connection with the Services nor does the Company warrant the operation of the Services. If any provision of the 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 the Terms shall continue in full force and effect. All sections of the Terms shall survive the termination of the 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 the 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 Client under the Terms may not be assigned without the prior written consent of Company. Company shall have the right and power to assign, transfer, sublicense or delegate any rights or obligations hereunder without notice to or consent of Client. Any notices or other communications required or permitted hereunder shall be in writing and delivered to a party personally, by e-mail (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 the Terms. Any notice to Company shall be sent to: Paint Nite LLC, 119 Braintree Street, #211 Allston, MA 02134 USA with a copy to dan@yaymaker.com and any notice to Client shall be sent to the address provided in the Event Details. Each party may specify a different address by delivering notice as aforesaid to the other party.

19. Social media

You can connect the Company 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 the Company 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 may be able to see (on Facebook and on the Website) that you are a Company customer as well as what you have created, eaten or had to drink, with whom you attended an event, and other information about your use of the Service. You may also be able to see similar information about your Facebook friends who are connected with the Company. In addition, the Company 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 your Social Media Accounts, 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 COMPANY 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 COMPANY ACTIVITY, TO BE SHARED IN THIS MANNER, PLEASE CONTACT THE COMPANY AT HELLO@YAYMAKER.COM TO HAVE YOUR INFORMATION REMOVED.

The Company and social media companies are continually making changes and improvements to this feature, and therefore the available features and information that are shared may change from time to time. These changes may take place without notice to you and may not be described in these Terms.

20. Customer reviews

The Company encourages you to post reviews of your Events through the Services. The Company reserves the right to promote, reject, remove or edit such content at anytime without notice to you. Reviews should not be posted that contain the following: (i) harsh, profane or discriminatory language, (ii) illegal, obscene, threatening, defamatory or otherwise objectionable content, (iii) URLs, phone numbers, mailing or e-mail addresses, or personal attacks on the Company's personnel, (iv) misleading information regarding the origin of the content, or (v) a discussion of the Company's policies or services. You understand and agree that the Company may, but is not obligated to, review the content of any review and may delete or remove it (without notice to you) in the Company'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, THE COMPANY MAY 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 SERVICE. IF YOU DO NOT WANT YOUR REVIEWS TO BE SHARED IN A PUBLIC FORUM, DO NOT USE THE 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.

21. Age restriction

The following age restrictions apply to all Company Events, unless otherwise provided herein with respect to All Ages Events.

The Service may only be used by children under the legal drinking age where your Event is held if the venue where your Event is held permits children to be present. It is up to you to check with the venue in advance of your Event to determine whether children will be permitted to attend your Event. The Company is not responsible in any manner if a person or persons under the legal drinking age where the Event is being held attend the Event. In the event the Company or its licensee or agent discovers that an Event Attendee is under the legal drinking age in the venue where your Event is held, and the venue does not permit such persons, the Company or its licensee or agent may refuse to offer instruction to any under age individual, regardless of whether that individual has a Ticket to the Event. Although the Company is not under any obligation to ensure that any of your Event Attendees are of the legal drinking age where your Event is held, the Company 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.

22. Venue

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 the Company 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 THE COMPANY. Some of these TPS may even use Company trademarks in connection with your Event. The Company 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 the Company 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 the Company harmless, as set forth in Section 30 hereof, 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 the Company harmless, as set forth in Section 30 hereof, from all claims that in any way involve or relate 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 the Company, unless otherwise indicated by the Company. THE COMPANY DISCLAIMS ALL LIABILITY ARISING FROM YOUR USE OF TPS. You agree to defend and indemnify the Company, as set forth in Section 30 hereof, for any and all claims made as the result of the provision of TPS at your Event.

23. Intellectual property

PAINT NITE and PLANT NITE and YAYMAKER are registered trademarks of Paint Nite LLC and Your Nite LLC (the "Marks"). The Marks are trademarks or service marks of the Company. The Website, including but not limited to its graphics, logos, page headers, button icons, scripts and service names constitute trade dress of the Company. The trademarks, service marks and trade dress of the Company may not be used or reproduced without prior written approval from the Company and may not be used in connection with any product or service that is not affiliated with the Company, in any manner that is likely to cause confusion among customers, in any manner that dilutes the rights of the Company, or in any manner that disparages or discredits the Company. 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 the Company. Any images of persons or personalities contained on the Website are not an indication or endorsement of the Company or any particular product or our service unless otherwise indicated.

You agree that the Company 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 Work of Art with you. You further agree that you will not reproduce, copy, or otherwise distribute for profit the Work of Art you created (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 any instructor, assistant, or licensee ("Licensee") or the agent or employee of a Licensee, which photographs depict in any manner the Work of Art, 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 the Company in any way shall become the property of the Company, may not be reproduced or utilized except as authorized by the Company, and that the Company is free to use all such materials at its sole and absolute discretion, including photo-shopping and/or altering any portions of any such photographs.

24. Entertainment and service content

The Company 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 Social Media Accounts, to you and others in any manner the Company chooses in the Company's sole and absolute discretion. In addition, the Service allows you and other third parties to post reviews or comments concerning the entertainment distributed by the Company 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 the Company, or its members, managers, directors, officers, employees, attorneys, affiliates, licensees, agents, employees or agents of licensees or agents, subsidiaries, parent companies, successors, or assigns. Under no circumstances shall the Company, or its members, managers, directors, officers, employees, employees or agents of licensees, 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.

25. Use of information submitted

The Company is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to the Company ("Feedback"), including responses to questionnaires or through postings to the 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 Service. The Company may also share your information with third parties for purposes of the Company's business. Furthermore, by posting any Feedback on the Website, submitting Feedback to the Company, or in responding to questionnaires, you grant the Company 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 the Company 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 the Company. 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 the Company, its members, managers, directors, officers, employees, licensees, employees or agents of licensees, agents, 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.

26. Service testing

From time to time, the Company tests various aspects of the Service, including the Website, user experience, service levels, plans, promotions, features, availability of venues, delivery, and pricing, and the Company reserves the right to include you in or exclude you from these tests without notice to you.

27. Customer service

If you need assistance, you may find answers and reach Customer Service at any time at hello@yaymaker.com. You may also visit the FAQ page at https://help.yaymaker.com where you will find the answers to many frequently asked questions.

Links and pages

Some of the hyperlinks on the Website may lead to other websites or other content that are not controlled by, or affiliated with, the Company. In addition, other websites may link to the Website or the Company may include links to the websites of businesses, including those that have associations with the Company through certain programs. These pages may provide links to third parties. The Company has not reviewed these third party websites and is not responsible for the offerings of any of these sites or the content, privacy policies or terms of use of these third party websites. You acknowledge and agree that the Company is not responsible or liable for, and does not otherwise warrant, the actions of these third parties, or the products or contents on their websites. These linked websites have separate and independent privacy statements, notices and terms of use, which should be read carefully.

28. Governing Law and Attorney Fees

The Terms and all matters arising out of, relating to or in connection with the Terms or the relationship of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any choice of law or conflict of law rules or provisions. All disputes and controversies arising out of or in connection with the Terms will be resolved exclusively in the state and federal courts located in Boston, Massachusetts or Middlesex County, Massachusetts. Each party agrees to submit to the exclusive jurisdiction of such courts and agrees that suits against Merchant will lie exclusively with such courts. If either party institutes a suit against the other party to enforce or declare any of its rights under the Terms, the prevailing party in such action shall be entitled to recover from the other party all Legal Costs thereof. As used herein, the term "prevailing party" means that party whose position is substantially upheld in a final judgment rendered in any litigation, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal.

29. WAIVER OF JURY TRIAL

EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY DISPUTES ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THE TERMS OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.

Virtual Event Addendum

This Virtual Event Addendum (this "Addendum") supplements the Company Commercial Terms and Conditions, or the existing agreement (the "Agreement") entered into by and between Company and the Client as those terms are defined in the Agreement.

In the event of a conflict between the Agreement and this Addendum, this Addendum shall govern (provided however that the fact that a term or provision appears in the Agreement but not in the Addendum, or in the Addendum but not in the Agreement, shall not be deemed to be a conflict for purposes of this sentence).

1. Service

This Addendum describes the terms under which Client checks-out for any virtual event, meeting, show, community, product showcase, seminar or informational event (each a "Virtual Event"), as well as computer-simulated environments for virtual reality event experiences, virtual tours, including but not limited to realistic 3-D tours, and other related products and services (each a "Virtual Reality Even"). The Virtual Event and/or Virtual Reality Event is hosted by a third party and delivered to the Client via the Internet on behalf of the Merchant. By completing the check-out process and registering, accessing, attending, participating or visiting the Virtual Event and/or Virtual Reality Event, the Client signifies the Client's and its end-user's agreement to this Virtual Event Addendum and the Company Commercial Terms and Conditions (collectively, the "Terms of Use"). These Terms of Use apply to all Virtual Event and/or Virtual Reality Event users including, but not limited to, attendees, exhibitors, speakers, presenters, visitors, and any and all other persons who contribute video, audio, graphic or written content, information, and other materials in any form, or services that become available through the Virtual Event and/or Virtual Reality Event. Company reserves the right to discontinue any Listing of the Virtual Event and/or Virtual Reality Event at any time and for any reason.

2. User Content

The Virtual Event and/or Virtual Reality Event Services may include interactive features and areas where Client or Client's end-users may submit, post, upload, publish, email, send or otherwise transmit content, including but not limited to text, images, photos, videos, sounds, software and other information and materials (such content, "User Content"). Client retains full ownership or other rights in Client's User Content and any intellectual property rights, or other proprietary rights associated with Client's User Content. Client is solely responsible for the User Content Client makes available through the Virtual Event and/or Virtual Reality Event Services.

3. Company's Responsibilities

Company has no responsibility or liability for User Content made available through the Virtual Event and/or Virtual Reality Event Services or through the Merchant's platform, and Company has no obligation to screen, edit or monitor such content.

4. User Content Liability

Company makes no representation and warranty that User Content posted on the Virtual Event and/or Virtual Reality Event or uploaded on the Merchant's platform will not be unlawfully copied or used without Client consent. By posting User Content on the Virtual Event and/or Virtual Reality Event Services, Client acknowledges and agrees that Company is not responsible for preventing such unlawful copying or use and that Company shall not be liable for any losses or damages Client may suffer as a direct or indirect result thereof.

5. Rights and Permissions

Client has the full and complete right to enter into this agreement and to grant to Merchant, the rights in the User Content herein granted, and that no further permissions are required from, nor payments required to be made to any other person in connection with the use by Merchant of the User Content for the provision of the Services as contemplated herein.

6. Acceptable Use Policy

Company does not monitor or police the content of communications or User Content transmitted through the Virtual Event and/or Virtual Reality Event or provided to the Merchant, and Company is not responsible for the content of these communications or transmissions. Client shall use a Virtual Event and/or Virtual Reality Event services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations.

7. Usage Restrictions

Client shall not use the Virtual Event and/or Virtual Reality Event Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party privacy rights; attempt to gain unauthorized access to the Virtual Event and/or Virtual Reality Event Services or related systems or networks; or engage in any malicious act or disrupt the security, integrity or operation of the Products or Services.

8. Breach by Authorized User

Any failure by an authorized user of the Virtual Event and/or Virtual Reality Event services to comply with this Agreement is deemed to be a breach by Client, and Company shall not be liable for any damages incurred by Client or any third party resulting from such breach.

9. DISCLAIMERS

CLIENT AGREES AND ACKNOWLEDGES THAT THE USE OF THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT SERVICES MAY REQUIRE THE CLIENT TO SHARE CLIENT DATA INCLUDING PERSONAL INFORMATION AND USER CONTENT DIRECTLY WITH THE MERCHANT TO AVAIL THE SERVICES AND THAT COMPANY DOES NOT REQUIRE THE CLIENT TO PROVIDE ANY CLIENT DATA INCLUDING PERSONAL INFORMATION OR USER CONTENT TO COMPANY. COMPANY ONLY SOURCES THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT BUT DOES NOT PROVIDE NOR HOST THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT SERVICES. CLIENT AGREES THAT COMPANY TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY OR INDEMNITY OBLIGATION TO CLIENT OR ITS REPRESENTATIVES, USERS OR ANY OTHER PARTY RELATED TO ANY SUCH CLIENT DATA INCLUDING PERSONAL INFORMATION OR USER CONTENT UNDER THIS AGREEMENT.

COMPANY IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT, INCLUDING WHETHER CAUSED BY THE MERCHANT OR BY ANY OF THE HARDWARE, SOFTWARE OR FUNCTIONALITY ASSOCIATED WITH OR UTILIZED IN THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT. THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT MAY CONTAIN LINKS TO OTHER WEBSITES. COMPANY IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY OR OPINIONS EXPRESSED ON SUCH WEBSITES, AND SUCH WEBSITES ARE IN NO WAY INVESTIGATED, MONITORED OR CHECKED FOR ACCURACY OR COMPLETENESS BY COMPANY. INCLUSION OF ANY LINKED WEBSITE ON THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT DOES NOT IMPLY APPROVAL OR ENDORSEMENT OF THE LINKED WEBSITE BY COMPANY. COMPANY TAKES NO RESPONSIBILITY FOR THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES, INCLUDING CUSTOMERS, SPONSORS, ADVERTISERS, STRATEGIC PARTNERS OR AFFILIATES. COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT. COMPANY ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY INFORMATION ON THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT. COMPANY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY COMMUNICATIONS NETWORK OR LINES, ONLINE SYSTEMS, SERVERS OR PROVIDERS, HARDWARE OR SOFTWARE, DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON ANY OF THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT OR COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO USERS OR TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT. UNDER NO CIRCUMSTANCES SHALL COMPANY BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT, ATTENDANCE OR PARTICIPATION IN A VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT, FROM ANY CLIENT DATA OR USER CONTENT OR CONTENT POSTED ON OR THROUGH THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT, OR FROM THE CONDUCT OF ANY USERS OF THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT, WHETHER ONLINE OR OFFLINE. THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT IS PROVIDED "AS-IS" AND AS AVAILABLE AND COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE VIRTUAL EVENT AND/OR VIRTUAL REALITY EVENT.

10. INDEMNIFICATION

To the fullest extent not prohibited by applicable law, Client agrees that the indemnity provisions set forth in the Agreement shall apply to this Addendum and all disputes related here to.