Master Subscription Agreement

This Master Subscription Agreement ("Agreement") is made by and between Experience Tech, LLC, a Kentucky limited liability company ("ET"), and the contracting party identified in the applicable Order Form ("Customer").

This Agreement consists of the following documents, collectively referred to as the "Agreement":

1. The Order Form;
2. This Master Subscription Agreement;
3. Any attachments, addenda, or appendices specifically referenced in the Order Form or this Agreement.

By signing the Order Form or accessing the Experience Tech platform, Customer agrees to be bound by the terms and conditions of this Agreement.

‍WHEREAS, ET has developed and owns an integrated online reservation management and payment software platform (the “Service“) that allows Customer to list the availability of, accept and manage reservations for, and sell events, tours, and other offerings (collectively, the “Offerings”); and

‍WHEREAS, Customer desires to obtain from ET the right and license to access and use the Service, in accordance with the terms set forth in this Agreement, and ET desires to grant to Customer the right and license to access and use the Service in accordance with such terms. 

‍Agreement

NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, ET and Customer hereby agree as follows:

1. Offering Registration

1.1. Customer shall register each Offering with ET so that ET can list the subject Offering on the Service. As part of each registration, Customer shall provide the location, capacity, availability, cancellation and refund policies, pricing and fees, and other information for each Offering. The registration information provided by Customer will be made publicly available for Bookings (as defined below) via the Service. Customer will not submit any listing with a false or misleading price or other information and will not submit any Offering with a price and terms that it does not intend to honor. Customer is solely responsible for Customer’s Content (as defined below) included in Customer’s registrations.  Customer shall ensure that all information provided to ET is and remains true, accurate, current, and complete. Customer will be liable and solely responsible for any errors, mistakes or omissions in the information that Customer provides to ET.  Customer agrees that Customer is solely responsible for and ET is not liable for any technical inaccuracies, any print or typographical (spelling) errors or other errors on the Service (including but not limited to rates, fees, or availability related to Customer’s Offerings); any changes made by or on behalf of Customer; improper use of the Service; or use of the Service together with software, online platforms, mobile applications or equipment not approved by ET.  ET may suspend or terminate the Service if it has commercially reasonable grounds to suspect that the relevant information is untrue, inaccurate, not complete or current.   The Services are non-exclusive, and ET may make the Service available to other customers.  The Service may only be used for the intended purpose for which such Service is being made available.

1.2. When Customer registers an Offering, Customer may establish certain requirements, which must be met by an Attendee who is eligible to request a Booking, including, but not limited to, requiring customers to be a certain age or have a verified phone number, in order to book an Offering. Customer agrees that no such requirements will be applied in a discriminatory or unlawful manner.  In addition, Customer will not use the Service to request that a customer engages in any prohibited or unlawful activity or request any information from a customer that is prohibited by law or subject to any applicable data protection and security requirements.

1.3. ET will provide Customer with the ability to customize the appearance of the display of Customer’s Offerings, including fonts and colors, on the Service. Customer will have the ability to edit the terms of Customer’s Content, provided all such edits comply with the terms of this Agreement. Customer is solely responsible for ensuring all alterations comply with applicable accessibility regulations and/or web content accessibility standards and guidelines.  Customer agrees to regularly check the correctness of the information provided on the Service and confirm that all information is current.  The Service may occasionally contain links to websites that are not owned, operated or controlled by ET or its affiliates. Neither ET nor any of its affiliates are responsible for the content, materials or other information located on or accessible by any website not owned, operated or controlled by ET or its affiliates.

1.4. During the Term, Customer grants to ET a worldwide, nonexclusive license to use, reproduce, display, modify, create derivative works of (including translations), distribute, (sub)license and transmit Customer’s Content (as defined below), in any media format whatsoever, solely in connection with the Service. “Customer’s Content” means all information, data, and content made available by Customer to ET in connection with the Service, which may include: (a) Customer’s name, trademarks, and logos; (b) images, photographs, and descriptions of Customer’s Offerings; and, (c) rates, pricing, schedules, capacities, and other information relating to reservation availability for Customer’s Offerings. Customer represents and warrants that Customer has all necessary rights to grant to ET the licenses granted herein; no consents from or payments to any third-party are required for ET to exercise the rights granted herein; and Customer’s Content and ET’s use will not infringe upon any trademark, trade name, service mark, copyright, trade secret, or other proprietary right of any other person or entity.

1.5. Other than Customer’s Content, all of the content featured or displayed on the Service, including without limitation text, graphics, photographs, images, sound, and illustrations “ET Content”), is owned by ET, its licensors, vendors, agents or its content providers. Other than Customer’s Content, all elements of the Service, including without limitation the general design and the ET Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights.

2. Attendee Reservations.
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2.1. Upon making a reservation through the Service, the customer making the reservation (each an “Attendee”) will have entered into a direct contractual relationship with Customer (the “Offering Contract”). ET is not a party to any Offering Contract, and merely acts as the limited purpose agent of the Attendee for the purpose of selecting (and paying for) the subject Offering through the Service (“Booking”). In exchange for facilitating the online payment and Booking process, ET will charge the customer a fee for making a Booking via the Service whether on a website created by ET for Customer, or whether on Customer’s own website, where the Service is integrated (“Booking Fee”). Further, when an Attendee makes a Booking via the Service, the Attendee will also pay  a fee for the Offering provided under the Offering Contract (the “Offering Fee”). The amount of the Booking Fee is set forth in Schedule 1, attached hereto. Customer is solely responsible for honoring all Bookings and fulfilling all obligations owed to customers pursuant to Offering Contracts. Customer agrees that ET will not be responsible or held liable by Customer for matters related to the fulfillment of Customer’s obligations under the Offering Contract. 
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2.2. Payments made by Attendees will be processed by a third-party payment processor (each a “TPPP”)  and such payment process will be integrated into the Service.  Customer may be required to enter into a separate user agreement with any TPPP to receive payments for Bookings made through the Service.  ET shall not be responsible for any delay or unavailability of a TPPP in connection with the Service, or any obligations of any TPPP pursuant to any user agreement  between Customer and any TPPP. Customer is responsible for providing all TPPPs with all information needed by the subject TPPP to make timely and accurate payments.

3. Service Terms. 
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3.1. During the Term, ET may integrate or set-up, as part of the Service or Customer’s own website, customer data, third-party products or services and cookies or similar (tracking) technologies. Customer shall be responsible and liable for such integration or set-up that ET may execute on Customer’s behalf.  The cost for such integration and set-up services are set forth in Schedule 1. Customer will provide ET with all necessary information required by ET in order to complete the Customer account setup and integration.

3.2. Customer agrees to cooperate fully with ET and its counsel or accountants in connection with the filing of tax returns, and any other audit, litigation, or other proceeding with respect to all applicable tax matters, including the retention and (at ET’s request) the provision of records and information which are relevant to any such audit, litigation, or other proceeding, at Customer’s sole cost and expense.

3.3. Customer will immediately notify ET if Customer becomes aware of or suspects (a) any breach of any security measures applicable to the Service, including any breach relating to Customer’s network; (b) any failure or error of any part of the Service, including affecting availability of the Service or any data accessible through the Service; or, (c) any fraudulent activity, unauthorized access or fraudulent transactions in any part of the Service or in the event of any breach of the terms of this Agreement. Customer shall be responsible for maintaining the security of its equipment and account access passwords and username. Moreover, Customer is solely responsible for all activity happening through Customer’s ET account. If Customer shares Customer’s username or password with a third-party, permit them to log on or to otherwise use the Service through using Customer’s account information, or if Customer is negligent in maintaining security of Customer’s username or password such that a third-party gains access to Customer’s ET account, Customer assumes all risks and losses and Customer is responsible for all account activities (including but not limited to changes to the username, password, listings bookings or account settings) of that third-party as if Customer performed these activities. Customer shall immediately notify ET of any unauthorized use of Customer’s account or any other breach of security that Customer become aware of.  Any individual identified in the registration data provided by Customer (or that Customer later identifies to ET) with ‘user permission’, including additional users, shall be deemed to be authorized to access the Service on Customer’s behalf.  Customer grants permission and consent to ET providing permitted users with information about Customer’s ET account to discuss the account with ET and to make changes to the account (depending on the authorization settings). ET disclaims all liability and bears no responsibility in relation to disputes between Customer and any permitted user (or other third-party to whom Customer provided access to Customer’s account).

3.4. Customer shall not post, upload, publish, submit or transmit any of Customer’s Content via the Service that (a) infringes, misappropriates or violates a third-party’s trade secret or intellectual property rights (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive as determined in ET’s sole judgment; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities or substances. ET may, in its sole discretion, remove information or direct Customer to remove information that ET deems to be inappropriate or unlawful.  In addition to any other remedies, ET may immediately suspend or terminate any of Customer’s Offerings that violate these restrictions

3.5. ET may, but is not obligated to, make new versions, releases, and updates to the Service to resolve defects and/or errors or to improve the Servies, in ET’s sole discretion.  ET shall not be obligated to provide any training or support services concerning Customer’s access to or use of the Service.

3.6. ET may utilize third-party products or service providers, including without limitation software, software-as-a-service, data sources and other products or services not provided by ET that are used to facilitate certain processes related to the Service. Customer acknowledges and agrees that in no event shall ET be held liable for any losses or damages arising, indirectly or directly, from the use of third-party products or service providers to provide the Service.

4. Right to Use the Services
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‍4.1. Customer acknowledges and agrees that ET or its licensors (if any) own the Service, and that all rights, title, and interest in and to the Service, including, without limitation, all patent rights, copyrights, trademark rights, trade secrets, and all other intellectual property and proprietary rights (collectively, the “Rights”) belong to ET or its licensors (if any). ET shall own all of the technology, technology properties, source code, web-based portals, derivatives, algorithms, data analytics, methods, software development, work product, tools, methodologies, and processes, and rights to use, market, develop, and provide integrated technology solutions incorporated into all technology and software that ET utilizes in providing the Services (collectively, the “ET Technology”).  Customer agrees that it shall not acquire any ownership rights or claims to the ET Technology or the Service. The Parties acknowledge and agree that all the Services, the ET Technology and the Rights are not deemed to be a deliverable or “work made for hire” under this Agreement.  If Customer suggests any new features, functionality or performance for the Service or ET Technology that ET subsequently incorporates or utilizes, Customer hereby acknowledges that (a) ET shall own, and has all rights to use and incorporate, such suggestions and the Service or ET Technology incorporating such new features, functionality, or performance shall be the sole and exclusive property of ET;  (b) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon ET, and (c) Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by ET.  ET acknowledges that any intellectual property owned by the Customer and provided to ET for the purpose of the services shall remain the property of the Customer.  During the Term of this Agreement, ET hereby grants to Customer a nontransferable, nonexclusive, nonsublicensable, worldwide license to access and use the Service in accordance with the terms set forth in this Agreement.

4.2. All trademarks, service marks and trade names of ET used in the Service (including but not limited to: ET’s name and logo; the Service’s name, design, and any logos) (collectively “Marks”) are trademarks of ET or its affiliates, partners, vendors or licensors. Customer is not allowed to use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity pertaining to distribution of materials on the Service, without ET’s prior written consent. ET prohibits the use of the Marks as a “hot” link on or to any other website unless establishment of such a link is approved in advance. Customer shall not use ET’s name or any language, pictures or symbols which could, in ET’s judgment, imply ET’s endorsement in any written or oral advertising, presentation, brochure, newsletter, book, or other written material of whatever nature, without prior written consent.4.3 Neither the Service nor the ET Technology shall be considered a “work made for hire.”  No work product, ET Technology or any improvements, modifications or derivatives thereof shall be assigned by ET to Customer, and ET shall remain the owner of such work product, the Service and the ET Technology and all improvements, modifications and derivatives thereof.

4.4. ET may create websites, customer relationship management tools and other online features for Customer’s use (the “Online Assets”), and reserves the right to make changes to the Online Assets at its sole discretion. Customer acknowledge and agree that the Online Assets are the sole property of ET and, except for any of Customer’s marks displayed thereon, are not a “work made for hire” under the Copyright Act or any other law. To the extent that the foregoing does not apply, Customer assigns to ET, and its successors and assigns, for no additional consideration, Customer’s entire right, title and interest in and to the Online Assets and any intellectual property rights contained therein. ET makes no warranties or guarantees that the Online Assets fully comply with the applicable rules and regulations. During Customer’s use of the Online Assets, Customer will be responsible for ensuring compliance with the applicable laws, rules and/or regulations. Nothing contained in this Agreement shall be construed to reduce or limit ET’s right, title or interest in the Online Assets. Further, Customer agrees to stop using and return to ET the Online Assets at ET’s request or upon the termination or expiration of this Agreement.


5. Restrictions on Use.
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‍5.1. Customer shall not copy, decompile, reverse engineer, disassemble, attempt to derive the source code, modify or create derivative works, or commercially exploit (collectively “Reverse Engineering” or “Reverse Engineers”) the Service or the ET Technology.   ET may consider any Reverse Engineering a material breach of this Agreement. If Customer Reverse Engineers, ET may take whatever remedial action it determines, in its sole discretion, is appropriate, including immediate suspension or cancellation of this Agreement. Customer shall not copy, modify, distribute, sell, sublicense, or create derivative works based on ET's intellectual property without ET’s prior written consent.

5.2. Customer shall not: (a) use any robot, spider, scraper or other automated means to access the Service for any purpose without ET’s express written permission; (b) take any action that imposes, or may impose in ET’s sole discretion an unreasonable or disproportionately large load on ET infrastructure; (c) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; and/or  (d) bypass or attempt to bypass any restrictive measures ET may implement to prevent or restrict access to the Service.

5.3. Customer shall not use the Service: (a)  for any purpose that would violate the terms of this Agreement, or in any manner that, as determined by ET in its reasonable discretion, could impair, harm, or damage ET, ET’s business reputation, or the Service; (b) to disrupt, interfere with, or attempt to gain unauthorized access to services, servers, devices, or networks connected to or accessible via the Service; (c) to transmit or upload any material that contains viruses, malicious software, code or applications or any other harmful programs which may interfere with or disrupt the Service, or any network connected thereto; (d) to scrape, build databases, or otherwise create copies of any data accessed or obtained using the Service; or, (e) to circumvent any limitations or restrictions on Customer’s use of the Service established by ET.

5.4. Customer shall not: (a) use or access the Service to build or support, and/or assist a third-party in building or supporting, products or services competitive to ET; (b) remove any proprietary notices or labels from the Services or ET Technology; (c)  access or use the Service in a manner that would violate the rights of any third-party, whether those rights are afforded by law, by contract, in equity, or otherwise, including, without limitation, intellectual property rights, proprietary rights, rights of publicity or privacy, and contractual rights, and/or (d) any action that impairs the Service or ET Technology, the Rights, or the value of any of the foregoing, or ET’s reputation and goodwill. 

6. Privacy and Data Protection
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‍6.1. Customer will retain ownership of any data, information or material originated by Customer that Customer submits or provides in the course of using the Service (“Customer Data”). ET has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content, and legality of Customer Data, the means by which Customer Data is acquired, and the transfer of Customer Data outside of the Service.  Except to the extent Customer makes any Customer Data accessible to other users or the public through the Service, Customer Data shall be deemed to be Customer Confidential Information.  Customer grants ET and its affiliates, vendors and subcontractors a worldwide, non-exclusive, transferable, irrevocable, license to use the Customer Data. Customer represents and warrants that (a) it has all rights necessary to upload the Customer Data to the Service and to otherwise have such Customer Data used or shared, as applicable, by ET as part of the Services and (b) for any Customer Data provided to ET for email marketing shall consist of records of persons who have given Affirmative Consent (as defined in the CAN-SPAM Act and applicable state law) to receive third-party commercial email advertising messages regarding Offerings and have not subsequently sent an unsubscribe request revoking this Affirmative Consent. 

6.2. Customer acknowledges and agrees that any data generated, collected, or processed through the Service (collectively, the “Service Data”) shall be owned  by Customer. The Service Data includes, but is not limited to, customer information, user data, transaction details, analytics, and any other data generated or provided by the Customer or its users in connection with the Service. Notwithstanding the foregoing, Customer grants to ET a non-exclusive, irrevocable, worldwide, perpetual, transferable, sublicensable, royalty-free license to use, for any purposes whatsoever, the Service Data.

6.3. Notwithstanding anything to the contrary, ET may utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information resulting from Customer’s access and use of the Services and ET Technology (“Blind Data”). ET shall own all Blind Data and ET may use the Blind Data for any purpose.

6.4. Customer will retain ownership of any comments, ideas, feedback or other information provided by an Attendee to ET in relation to the Offerings (“Attendee Feedback”), provided that Customer will not disclose any such Attendee Feedback in a way that can be attributed to a specific Attendee without such Attendee’s prior written consent. Customer hereby grants ET a nontransferable, perpetual, nonexclusive, worldwide license to use Attendee Feedback, Customer Data, Service Data and any other information, insight, statistics or metrics relating to the usage of the Service, including using generative artificial intelligence (AI) algorithms to generate content, provide recommendations, and enhance user experience (collectively, the “Usage Data”) in order to develop, provide and operate its Service and other offerings, and disclose such information (excluding  Customer’s  Confidential  Information, as defined below) solely on an aggregated and anonymized basis in a manner that does not identify Customer, Customer’s Confidential Information or any individual attendee.

6.5. ET shall take commercially reasonable measures to protect Service Data from unauthorized access, loss, or disclosure. However, ET shall not be liable for any loss, corruption, or unauthorized access to the Service Data caused by Customer negligence. ET shall comply with applicable United States data protection laws and regulations regarding the collection, storage, and processing of the Service Data. ET may disclose the Service Data to its employees, contractors, and/or service providers . Customer shall have the right to access and retrieve the Customer Data from the Service in a reasonable and agreed-upon format, subject to any technical limitations or restrictions imposed by ET.

6.6. The use of the Service may require ET to process personal data on behalf of the Customer. In respect of such processing, the Parties agree to enter and be bound by the terms of a Data Processing Addendum (the “DPA”) between the Parties, which shall be negotiated by the Parties in good faith and acting reasonably.

‍7. Payment and Invoices.
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‍7.1. Customer shall pay all fees to ET set forth in Order Form (“ET Fees”) and unless otherwise specified in Order Form, all ET Fees shall be due within thirty (30) days of date of invoice. All ET Fees are non-cancelable and non-refundable, except as expressly specified in this Section 7.  Unless otherwise stated in Order Form, all ET Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on ET’s income), even if such amounts are not listed in Order Form.   In the event ET pays any such taxes on behalf of Customer, then ET shall issue an invoice to Customer for such amounts, and Customer shall pay the total balance of the invoice by the date set forth in said invoice.  All amounts due from Customer pursuant to this Agreement shall be paid in U.S. Dollars. 4.  Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all reasonable expenses of collection.

7.2. Customer agree to fully indemnify and hold harmless ET, its member, manager, officers, agents, and employees from and against any claims, losses, damages, liabilities, judgments, penalties, fines, and expenses including, but not limited to, reasonable attorneys’ fees and costs, to the extent resulting from or arising out of (a) Customer’s failure to comply with the applicable tax reporting requirements in Customer’s jurisdiction; (b) Customer’s failure to determine, include, or remit all applicable federal, state and local taxes and governmental fees to the appropriate taxing authorities;  or (c) tax claims and liabilities of ET for taxes for which Customer are responsible or liable.

7.3. If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, ET reserves the right to suspend Customer’s access to the Service without liability to Customer until such amounts are paid in full.  Any suspension by ET of the Service under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.

8. Representations and Warranties.
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‍8.1. ET represents and warrants to Customer that: (a) it has the right to grant the licenses in accordance with the terms of this Agreement; (b) the Service does not knowingly infringe upon the registered U.S. patents or copyrights of another; (c) there is no action or judgment that would materially and adversely impact this Agreement or ET’s ability to consummate the transaction contemplated herein; and (d) its signatory to this Agreement is an authorized representative of ET with the requisite capacity, legal competency, and limited liability company authority needed to enter into and execute this Agreement on behalf of ET.

8.2. Customer represents and warrants that: (a) there is no action or judgment that would materially or adversely impact this Agreement or Customer’s ability to consummate the transaction contemplated herein; (b) its signatory to this Agreement is an authorized representative of Customer with the requisite capacity, legal competency, and corporate authority to enter into and execute this Agreement on behalf of Customer; (c) it is not under any obligation or restriction that does or would interfere or conflict with Customer’s ability to use the Service or adhere to the terms of this Agreement; (d) that the information Customer provided in connection with the Service is true, correct, and complete; (e)  Customer’s use of the Service  will be in accordance with the terms of this Agreement; (f). Customer will not use, copy, modify, transfer, assign, or create derivative works or distribute any rights in the Service or in ET’s intellectual property to any third-party, in whole or in part. 

8.3. Each Party shall comply with, and shall not violate, applicable laws, including anti-money laundering, anti-corruption, anti-bribery, anti-terrorist financing, anti-tax evasion, trade and economic sanctions, modern slavery, human trafficking and human rights laws, rules, and regulations, that may restrict ET’s ability to make the Service available to Customer or the public in general and from making, processing, or facilitating payments to Customer’s bank account, if it has no connection to the jurisdiction where Customer are located.

‍9. Term.  This Agreement shall begin on the Effective Date and shall continue in full force and effect for one (1) year following the Effective Date (the “Initial Term”).  This Agreement shall automatically renew for additional, consecutive one (1) year terms, (each a “Renewal Term”)  unless either Party sends a notice of non-renewal to the other Party at least ninety (90) days prior to the expiration of the Initial Term or the Renewal Term then in effect (the Initial Term and any Renewal Term being collectively, the “Term”)

10. Termination.

‍10.1.  Either Party may terminate this Agreement in the event the other Party breaches a material term of this Agreement, including, without limitation, failure to make timely payments, by providing the non-breaching Party with written notice of the material breach, and then only if the breaching Party fails to cure such breach within the first thirty (30) days following the breaching Party’s receipt of such written notice.  Either Party may also terminate this Agreement if: (a) the other Party makes an assignment for the benefit of creditors; (b) the other Party makes a voluntary filing on its own behalf under bankruptcy or insolvency laws, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under any law of like import; (c) a case is commenced against the other Party in respect of such other Party or any substantial portion of its assets under any bankruptcy laws; (d) the other Party consents to, or is required to accept, the appointment of a receiver, liquidator, assignee, trustee, custodian, or other similar official, for the taking possession of such other Party’s assets; or (e) the other Party ceases or threatens to cease doing business as a going concern.

10.2. ET is entitled to suspend the Service or terminate this Agreement, in whole or in part with immediate effect, without a notice of default being required and without incurring any obligation to compensate for any damages, if any ET determines, in its sole discretion, that Customer has abused the use of the Service.

10.3. In addition to the above, after the first six months following the Effective Date, either Party may terminate this Agreement, anytime, with or without cause, upon no less than ninety (90) days prior written notice of termination to Customer.

Effect of Termination.

11.1. Upon the termination of this Agreement, Customer shall: (a) promptly return to ET any and all of ET’s Confidential Information, and any and all copies of the foregoing which is in the possession or control of Customer; (b) pay all outstanding sums due to ET within the first thirty (30) days following the termination of this Agreement; and (c) provide ET with written certification by an authorized representative of Customer within the first thirty (30) days following the termination of this Agreement that all of the foregoing steps have been taken.  Regardless of when this Agreement terminates, Customer will not receive a refund of the License Fee or any portion thereof.  Upon the termination of this Agreement, the Parties shall negotiate in good faith and acting reasonably, the allocation of any Booking Fees and Offering Fees which have been received by any Party or a TPPP for Bookings which will be fulfilled following the date of termination.

11.2. Upon the termination of this Agreement, ET shall: (a) promptly return to Customer any and all of Customer’s Confidential Information which is in the possession or control of ET; (b) remit any sums held in trust by ET but due to Customer within the first thirty (30) days following the termination of this Agreement; and (c) be relieved of any and all obligations regarding the Service as of the date of expiration or termination. 

12. Confidentiality.

‍12.1. In contemplation of entering into a business relationship or this Agreement, the Parties may have entered into and executed an agreement concerning the non-disclosure and use of each or either Party’s confidential and/or proprietary information.  Each Party acknowledges and agrees that the purpose of such prior agreement (if any) was to control the disclosure and use of each Party’s confidential and proprietary information before this Agreement was entered into.  In the event of a conflict between the terms of such prior agreement and this Agreement with respect to either Party’s confidential and proprietary information, the terms of this Agreement shall control.

12.2. “Confidential Information” includes the Service, the ET Technology,  the terms of this Agreement, and any other information or documentation that one Party (the “Disclosing Party”) discloses to the other Party (the “Receiving Party”) in confidence.  Confidential Information does not include information: (a) that is already known by, or is later obtained by, the Receiving Party without an obligation of confidentiality, other than as provided in anticipation of or under this Agreement, and which was not obtained by the Receiving Party through the Receiving Party’s own fault or unauthorized conduct; (b) that is publicly known or becomes publicly known through no fault or unauthorized conduct of the Receiving Party; or (c) that is independently developed by the Receiving Party without use of, knowledge of, or reference to the Disclosing Party’s Confidential Information.

12.3. Unless as otherwise expressly provided for in this Agreement, the Receiving Party shall not reveal or disclose, whether directly or indirectly, the Confidential Information of the Disclosing Party to any third-party without first obtaining the express prior written consent from the Disclosing Party to do so.  Notwithstanding the foregoing, the Receiving Party may share the Confidential Information of the Disclosing Party with its employees who have a need to know such Confidential Information to perform employment responsibilities consistent with the Receiving Party’s rights and obligations under this Agreement and who agree in writing to be bound by the confidentiality obligations placed on the Receiving Party under this Agreement.  Additionally, the Receiving Party shall secure, safeguard, and protect the Confidential Information of the Disclosing Party from theft, copying, inadvertent access, and unauthorized access or disclosure in a manner consistent with the efforts the Receiving Party takes to secure, safeguard, and protect its most confidential information.  Furthermore, the Disclosing Party’s Confidential Information shall not be used by the Receiving Party, except for the purposes permitted under this Agreement.

12.4. The Receiving Party shall notify the Disclosing Party immediately upon the discovery of any prohibited or unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any other breach of this Section 12 or its subsections.  Moreover, the Receiving Party shall fully cooperate with the Disclosing Party to help the Disclosing Party regain possession of its Confidential Information and to prevent the further prohibited use or disclosure of such Confidential Information.

12.5. The Receiving Party may disclose the Confidential Information of the Disclosing Party if such information is required to be disclosed pursuant to a court order or the requirement of another governmental authority, so long as the Receiving Party provides the Disclosing Party with prior notice of such court order or requirement in order to enable the Disclosing Party to obtain a restraining order or to take other action to restrict or limit the disclosure of such information.  In any such event, the Receiving Party may disclose as much of the Confidential Information as is necessary for the Disclosing Party to comply with such court order or requirement. The Receiving Party may also disclose the Confidential Information of the Disclosing Party to the Receiving Party’s attorneys, but only in privileged communications with such attorneys.  

12.6. The confidentiality obligations contained within this Section 12 and its subsections shall survive the expiration or termination of this Agreement without limitation.   

‍13. Warranty.  

13.1. CUSTOMER AGREES THAT ACCESS TO AND USE OF THE SERVICE, IS AT CUSTOMER’S SOLE RISK.  ET PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. ET DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE WILL BE AVAILABLE AT ALL TIMES.  THE ONLY WARRANTIES AVAILABLE TO CUSTOMER, INCLUDING THOSE PERTAINING TO THE SERVICE, ARE THOSE WARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, AND SUCH WARRANTIES ARE LIMITED.  ET HEREBY EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, REPRESENTATIONS, AND ENDORSEMENTS WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUALITY. ET DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE SERVICE WILL BE IMMEDIATELY CORRECTED.  ET MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ET DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER ET NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ET IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13.2. ET’S LIMITED WARRANTIES, AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ARE IN LIEU OF ALL OTHER LIABILITIES OR OBLIGATIONS OF ET FOR DAMAGES ARISING OUT OF OR CONNECTED WITH THE PERFORMANCE OF THE SERVICE.  THE PARTIES AGREE THAT THE FAILURE OF THE SERVICE TO PERFORM IN ACCORDANCE WITH ANY SPECIFICATIONS PROVIDED BY CUSTOMER SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN.

13.3. CUSTOMER ACKNOWLEDGES THAT ET HAS NO CONTROL OVER AND DOES NOT GUARANTEE (A) THE QUALITY, SAFETY, OR LEGALITY OF THE OFFERINGS, (B) AN ATTENDEE’S ACTIONS RELATED TO SUCH OFFERINGS, OR (C) THE TRUTH OR ACCURACY OF ANY OFFERINGS, AND ET IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD-PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICE OR ATTENDEES THAT USES THE SERVICE, AND ET HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD-PARTIES OR ATTENDEES. ET IS UNDER NO OBLIGATION TO, AND DOES NOT ROUTINELY, SCREEN ATTENDEES, INQUIRE INTO THE BACKGROUND OF ATTENDEES, OR ATTEMPT TO VERIFY INFORMATION PROVIDED BY ANY ATTENDEES.

‍14. Limitation of Liability.  

‍14.1. ET SHALL NOT BE LIABLE TO CUSTOMER, WHETHER UNDER CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ET IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, THAT ARISE FROM OR ARE CONNECTED WITH THE SUBJECT MATTER OF THIS AGREEMENT. IN ANY EVENT, EXCEPT FOR CLAIMS ARISING FROM ET’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS, ET’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO FIFTY PERCENT (50%) OF THE TOTAL GROSS BOOKINGS PROCESSED THROUGH THE SERVICE FOR CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. GROSS BOOKINGS SHALL MEAN THE TOTAL AMOUNT PAID BY ATTENDEES FOR CUSTOMER’S OFFERINGS THROUGH THE SERVICE, INCLUDING ALL TICKET PRICES, FEES, AND TAXES COLLECTED THROUGH THE SERVICE.
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THE PARTIES ACKNOWLEDGE AND AGREE THAT THE REMEDIES AND LIMITATIONS CONTAINED IN THIS AGREEMENT ALLOCATE THE RISK BETWEEN THE PARTIES, AND THE FEES REFLECT THIS ALLOCATION OF RISK.
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CUSTOMER UNDERSTANDS AND AGREES THAT IT MAY BE WAIVING RIGHTS TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.  CUSTOMER ALSO ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS, AND HEREBY EXPRESSLY WAIVES, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR JURISDICTION, WHICH PROVIDES, OR IS SIMILAR IN PURPOSE TO, AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”  IN THOSE STATES WHICH DO NOT ALLOW FOR THE DISCLAIMER OF CERTAIN WARRANTIES AND/OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, ET’S LIABILITY SHALL BE LIMITED IN THOSE SITUATIONS TO THE GREATEST EXTENT PERMITTED BY LAW.


14.2. As an inducement to ET permitting Customer to access and use the Services, in providing the Offerings, Customer hereby agrees to release ET, and its affiliates and subsidiaries from all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses arising out of or in any way connected with disputes between Customer and third-parties in connection with any Offerings. In addition, Customer waives any applicable law or statute, which says, in substance:“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY.”

15. Indemnification.

‍15.1. ET shall defend, indemnify, and hold harmless Customer from and against any third-party claim, cause of action, or lawsuit to the extent that it is based upon a claim that: (a) the Service infringes upon the registered U.S. patents or copyrights of another (excluding infringement upon Customer’s intellectual property rights); or (b) ET has breached any of the representations and warranties made in this Agreement (each a “Customer Claim”).  ET shall pay any liabilities, costs, and damages, including reasonable attorneys’ fees, incurred by Customer in such action which are attributable to such a Customer Claim, subject to the limitation of liability stated in Section 14 above.  However, ET shall have no indemnity, or any other, obligations for any claim of infringement based upon any modification, update, or upgrade to the Service developed or commissioned by Customer for use of the Service by Customer that is not permitted by the terms of this Agreement, or for use of the Service Customer after Customer has received notice from a third-party that the Service, or such use thereof, infringes or otherwise violates the rights of another.

15.2. Customer shall defend, indemnify, and hold harmless ET and its managers, officers, members, contractors and employees (the “ET Indemnitees”) from and against any claim, cause of action, or lawsuit to the extent that it is based upon a claim that: (a) any modification, update, or upgrade to the Service developed or commissioned by Customer, infringes the intellectual property rights of a third-party; (b) access to or use of the Service by Customer or any Attendee,  infringes or violates any right of another, whether those rights are afforded by law, by contract, or otherwise, including, without limitation, intellectual property rights, proprietary rights, rights of publicity or privacy, and contractual rights; (c) access to or use of the Service by Customer or any Attendee exceeds the scope of the terms of this Agreement; (d) Customer has breached a material term of this Agreement; (e) Customer has breached any of the representations and warranties it made in this Agreement; (f) any Customer’s Content, Customer Data, or Customer’s use of the Service, in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third-party or violates any law or regulation; (g) the Offerings offered or provided by Customer through the Service or otherwise relating to Customer’s relationship with any Attendee, including, without limitation, claims relating to the accuracy of information regarding users or the Offerings such as available times, pricing and the like, the proper fulfillment of such Offerings, and the full satisfaction of any Attendee; (h) Customer has violated any applicable law in connection with its use of the Service or in connection with any Offering ,and (i) Customer has failed to satisfy any obligations under any Offering Contract.

15.3. The indemnifying party’s obligations contained in this Section 15 and its subjections are contingent upon: (a) the indemnified Party notifying the indemnifying Party promptly in writing of the claim to be subject to the indemnifying Party’s indemnity obligations; (b) the indemnified Party giving the indemnifying Party immediate and complete control over the defense and/or settlement of the claim, provided the indemnifying Party  may not make any admission of liability on behalf the indemnified Party; (c) the indemnified Party cooperating with the indemnifying Party in the defense and/or settlement of the claim, but at the indemnifying Party’s cost and expense; and (d) the indemnified Party doing nothing to prejudice the indemnifying Party’s efforts to defend and/or settle the claim.

15.4 If a final injunction is obtained which prevents Customer from using any part of the Service by reason of the infringement of a registered U.S. patent or copyright, ET will, at its sole option and expense, either: (a) procure for Customer the right to continue to access and use the part of the Service at issue, or (b) modify the part of the Service at issue so that it becomes non-infringing.

‍16. Trademarks and Publicity.  ET’s trademarks and service marks, whether registered or unregistered, (collectively, the “Marks”), are the sole and exclusive property of ET.  Customer shall not use the Marks in any manner without first obtaining the express written permission from an authorized representative of ET to do so.  Under no circumstances may Customer disparage or bring into disrepute the Marks, the Service, ET or any of ET’s licensors (if any).  Subject to the terms and conditions of this Agreement, Customer hereby grants to ET a non-exclusive and limited license to use and publicly display Customer’s name and logo. Further, during the Term of this Agreement, Customer consents and agrees that ET (and its affiliates and contractors) may use Customer’s logo, trademarks and/or tradename, in ET’s marketing materials or communications.

‍17. Notices. All notices required to be provided by a Party under the terms of this Agreement shall be deemed delivered if given by hand delivery, delivered by United States certified mail, return receipt requested, or delivered by a nationally recognized overnight courier service to the other Party at the respective addresses set forth in the preamble to this Agreement, or such additional address as may be designated by Party via a formal notice sent in accordance with this Section. Further, ET may give notice to customers via a general notice on the Services portal.

‍18. Governing Law; Jurisdiction; Venue.  This Agreement, and any subsequent amendments or modifications to this Agreement, and Customer’s access to or use of the Service, shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, without regard to its or any other jurisdiction’s conflict of laws rules or principals.  Each Party irrevocably agrees that any legal action, lawsuit, or proceeding brought by it to enforce or interpret the terms of this Agreement, or arising from or related to this Agreement, shall be brought solely and exclusively in the courts located in Jefferson County, Kentucky.  Each Party irrevocably consents to the sole and exclusive jurisdiction of such courts.  Each Party hereby waives any objection to any legal action, lawsuit, or proceeding in such courts on the grounds of lack of subject matter or personal jurisdiction, improper venue, or inconvenient forum.  The Uniform Computer Information Transactions Act will not apply to this Agreement.

‍19. ‍Remedies.  Any breach by one Party of the confidentiality provisions of this Agreement, or a breach by one Party of this Agreement resulting from use of the Service, except as expressly permitted by this Agreement, may result in immediate and irreparable injury to the other Party in an amount that is difficult to ascertain.  Therefore, in the event of such a breach or threatened breach of this Agreement by one Party, or in anticipation of such a breach of this Agreement by one Party, the other Party shall be entitled to proceed directly to court to seek to obtain the remedies of specific performance and injunctive relief without the necessity of posting a bond or assuming other undertakings therewith.  The right to seek specific performance and injunctive relief is in addition to all other remedies that may otherwise be available to such other Party at law or in equity.  All remedies available to a Party for any such breach of this Agreement shall be cumulative, and the pursuit of one remedy shall not be deemed to exclude any other remedies.

‍20. Miscellaneous.
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20.1. Force Majeure.  ET shall not be liable to Customer for any delay or failure to perform any of its obligations under this Agreement due to any cause beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, war (whether declared or not), threat of war, civil war, terrorism, riots, acts of war, a pandemic, epidemic, natural disaster or extreme natural event, fire, water damage, flooding, strike, sit-down strikes, lockouts, import and export restrictions government measures, defects in machinery, disruptions in the supply of energy, acts of a foreign or domestic government.  Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.

20.2. Assignment and Delegation.  Customer shall not assign its rights or delegate its obligations provided under this Agreement without first obtaining the express prior written permission from an authorized representative of ET to do so.  Nothing in this Agreement shall prevent ET from assigning its rights or delegating its duties under this Agreement without restriction.

20.3. Amendment.  This Agreement shall not be amended or modified unless such amendment or modification is agreed to in a writing that is signed by an authorized representative of ET and an authorized representative of Customer.

20.4. Severability. Should any provision of this Agreement be declared or determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the validity of the remaining parts, terms, or provisions shall not be affected thereby and any illegal, invalid, or unenforceable part, term, or provision shall be deemed not to be a part of this Agreement.  In such event, each Party agrees that the court may impose any lesser restrictions it considers appropriate to protect the interests of the Parties, as may be applicable. 

20.5. Waiver. No waiver by ET of any breach of this Agreement shall be deemed a waiver of any other breach of this Agreement, any other obligation, term, condition, or provision of this Agreement, or any claim to which ET is entitled under the terms of this Agreement.  Similarly, a failure by ET to raise a claim to which ET is entitled under the terms of this Agreement shall not be deemed a waiver of any other claim entitled to ET, any breach of this Agreement, or any other right, part, term, or provision of this Agreement.

20.6. Survival. The terms of Sections 1.5, 2, 3.2, 4, 5, 6, 7,  11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 shall survive the expiration or termination of this Agreement. Any additional provisions herein that could be reasonably interpreted to survive the termination or expiration of these Terms of Service shall remain in effect until all applicable statutes of limitations have expired.

20.7. Order Form and Attachments. The order form and any attachments or addenda referenced in this agreement are incorporated into this agreement by reference. In the event of a conflict between this agreement and the terms of the order form or any attachment, the terms of the order form or attachment shall control.

20.8. Headings.  The headings used in this Agreement have been included for convenience only, and in no way limit or define the scope of this Agreement, and shall have no legal effect.

20.9. Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall comprise one and the same agreement.

20.10. Binding Effect.  This Agreement is binding upon and shall inure to the benefit of each Party hereto, and each of their respective successors, heirs, and assigns (as may be applicable and permitted herein).

20.11. Entire Agreement.  The Parties agree that this Agreement, its exhibits and schedules, and any subsequent amendments and modifications to this Agreement, shall constitute the complete and exclusive statement of the agreement between the Parties regarding the subject matter of this Agreement, and the terms of this Agreement supersede any and all prior or contemporaneous proposals, understandings communications, and/or statements of intention between the Parties, whether written or oral, relating to the subject matter of this Agreement.  No representation, promise, inducement, or statement of intention regarding the subject matter of this Agreement has been made by either Party that is not embodied in this Agreement. The terms and conditions of this Agreement shall govern all purchase orders. All terms, provisions, and conditions of any purchase order issued by Customer shall be considered null and void and of no force and effect as to the Parties.

20.12. Independent Parties.  This Agreement does not authorize (expressly or impliedly) either Party to act on behalf of the other Party, or to hold itself out as an agent or representative of the other Party.  The Parties are independent contractors, and this Agreement shall not be construed as constituting either Party as a partner, joint venture, or fiduciary of the other Party.  Nothing in this Agreement shall prevent, or shall be construed to prevent, either Party from contracting, or otherwise dealing, with any other party. In addition, Customer acknowledges that ET has a separate, independent relationship with attendees pursuant to ET’s end-user Terms of Service and Privacy Policy that are agreed upon and acknowledged by such attendees, and nothing contained herein will limit ET’s rights in relation to such attendees.

20.13. Attorneys’ Fees.  Each Party shall bear its own costs and attorneys’ fees incurred during the negotiation and preparation of this Agreement, and of any amendments or modifications to this Agreement.  If, however, any action, lawsuit, or proceeding, at law or in equity, is brought by ET to enforce or interpret the terms of this Agreement, ET shall be entitled to the recovery of reasonable attorneys’ fees and costs incurred as a result of such action. 

20.14. No Third-Party Beneficiaries.  Nothing in this Agreement is intended to, nor shall create, any third-party beneficiaries, whether intended or incidental, and neither Party shall make any representations to the contrary.

20.15. Update to Terms. Experience Tech may update this agreement from time to time. Providers will be notified of any material changes at least thirty (30) days before they take effect. Continued use of the service after the effective date constitutes acceptance of the updated terms. Material changes include changes to fees, data ownership, and new obligations imposed on Customer.