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Membership & User Terms & Conditions

These terms and conditions and the policies and procedures described in the User Fees, Membership Fees, Platform and/or Reservation Usage/Fees, and Policies, herein attached as Exhibit A, (the “Policies” and, collectively, with the Terms and Conditions, these “Terms”) are the only terms that govern the provision of services by EXP Studio, LLC (the “Company”) to the User and Member. 

1. Services. The Company shall provide the services and licenses (the “Services”) to the User in accordance herewith and as further described in the Policies. The Company shall provide certain of these Services at the Company’s flagship office located at 250 East Main Street, Suite 3300 Rochester, NY 14604 (the “Premises”).
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2. Fees and Expenses; Payment Terms; Interest on Late Payments. In consideration of the provision of the Services by the Company and the rights granted to User under these Terms, User shall pay the fees set forth in the Policies (“Membership Fees”). Initial Membership Fees set forth in the Policies shall be due upon signing. Thereafter, Membership Fees shall be charged automatically on the same day of each year (or month for monthly terms) following the date of execution of a membership agreement (“Execution Date”). All payments hereunder shall be in US dollars and made by credit or debit card only and the Company reserves the right to automatically charge any card that the User puts on file with the Company for purposes of paying the Membership Fees. In the event payments are not received by the Company seven days after becoming due, the Company may charge a penalty fee on any such unpaid amounts at a rate of 10% per month or the highest amount permitted by law. If after three attempts to charge User the Company has not received the Membership Fees due, the Company shall terminate the User’s rights under these Terms and cease to provide the Services to such User. The User shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the User hereunder. Membership Fees are not refundable to the User for any reason.
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3. Changes to Services. The availability of the Services and other aspects of the Premises are subject to change from time to time in the Company’s sole discretion, and the Company may change, suspend, or discontinue all or part of the Services at any time in our sole discretion. From time to time, the Company may also make modifications, deletions or additions to these Terms. We may also impose limits on or restrict any User’s access to the Services or the Premises without notice or liability. A User’s continued use of the Services following notification of any changes to these Terms constitutes acceptance of those changes, which will apply to all Users’ continued use of the Services going forward. Each User’s use of the Services is subject to the Terms in effect at the time of such use. 
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4.  Confidential Information. All non-public, confidential or proprietary information including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information“), disclosed by the Company to the User, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and these Terms is confidential, and shall not be disclosed or copied by the User without the prior written consent of the disclosing party. Confidential Information does not include information that is: in the public domain; known to the User at the time of disclosure; or rightfully obtained by the User on a non-confidential basis from a third party. Notwithstanding the foregoing, the Company hereby grants the User an irrevocable, world-wide, royalty free license to use the Confidential Information to fulfill its obligations hereunder. The Company shall be entitled to seek injunctive relief for any violation by the User of this Section.
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5. Disclaimer. The Company represents and warrants to User that it uses commercially reasonable efforts to perform the Services pursuant to generally accepted industry standards. In the event that the Company is in breach of the warranty set forth in this Section 6, User must provide written notice of such breach within 10 days of User’s discovery thereof and User’s sole remedy shall be to have the Company repair or re-perform such Services (or the defective part). If the Company’s performance of its obligations under these Terms is prevented or delayed by any act or omission of User or its agents, the Company shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges or losses sustained or incurred by User, in each case, to the extent arising directly or indirectly from such prevention or delay. THE REMEDIES SET FORTH IN THIS SECTION 6 SHALL BE MEMBER’S SOLE AND EXCLUSIVE REMEDY AND THE COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 6. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 6, THE COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE MEMBER AGREES THAT, TO THE EXTENT NOT EXPRESSLY PROHIBITED BY LAW, THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGE EITHER TO PERSON OR PROPERTY SUSTAINED BY THE MEMBER OR GUESTS OF THE MEMBER DUE TO THE PREMISES OR ANY PART THEREOF OR ANY APPURTENANCES THERETO BECOMING OUT OF REPAIR, OR DUE TO THE HAPPENING OF ANY ACCIDENT IN OR ABOUT SAID PREMISES, OR DUE TO ANY ACT OR NEGLECT OF ANY OCCUPANT OF SAID PREMISES OR OF ANY OTHER PERSON.
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6. Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE TO MEMBER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID TO THE COMPANY PURSUANT TO THE POLICIES IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. Without prejudice to any other right or remedy it may have, the Company reserves the right to set off at any time any amount owing to it by the User against any amount payable by the User to the Company under this Agreement or otherwise. 
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7. Release. User hereby expressly waives and releases any and all claims, now known or hereafter known, against the Company, and its officers, directors, employees, agents, affiliates, successors, and assigns (collectively, “Releasees”), from any and all other claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, arising from, related to or associated with User’s use of the Premises, receipt of the Services or interaction with other Users.
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8. Name and Likeness. EXP Studio highlights and promotes the events, creativity, and people in our space and community often. Notwithstanding the below, User and its licensors reserve and retain their sole and exclusive ownership of all right, title and interest in and to the User’s Proprietary Information, including all intellectual property rights arising therefrom or relating thereto. “User’s Proprietary Information” means any and all of User’s registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. EXP Studio is proud to support creative entrepreneurs by taking no equity in the Users work while using the space for Users own pursuits. To ensure Company can celebrate and promote the community, User irrevocably permits, authorizes, grants, and licenses the Company and its affiliates, successors and assigns, and their respective licensees, advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them (“Authorized Persons”), the rights to display, publicly perform, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, modify, create derivative works, otherwise use, and permit only such others as necessary to use my name, image, likeness and appearance, voice, professional and personal biographical information and signature, and all materials created by or on behalf of the Company that incorporate any of the foregoing in perpetuity throughout the universe in any medium or format whatsoever now existing or hereafter created.
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9. Indemnification. The User agrees to indemnify, defend and hold harmless the Company and its directors, officers, employees and contractors (the “Indemnitees”) from and against any and all losses, claims, obligations, liabilities, commitments, actions, suits, proceedings, demands, judgments, assessments, penalties, payments, costs, expenses (including reasonable attorney fees and other expenses), and damages of any kind, nature or description whatsoever (the “Damages”) arising out of the User’s (i) breach of these Terms or (ii) gross negligence, negligence or willful misconduct in connection with these Terms or (iii) claims, charges, and conflicts incurred from another User or Guest or other third party. The User further agrees to indemnify, defend and hold harmless the Indemnitees from any infringement, misappropriation or violation of any third party’s or the Company’s intellectual property rights.  
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10. Terms; Termination. The initial term of these Terms shall be one (1) month for monthly memberships, and twelve (12) months for yearly memberships (“Initial Term”), after which period, the Terms shall automatically renew under the same terms as the Initial Terms, unless and until terminated in accordance herewith. If User wishes to cancel membership before the end of the Initial Term, User shall nonetheless be responsible for the full amount of membership fees due for the Initial Term. Either party may terminate these Terms at any time without cause with 30 days’ prior written notice. Upon such termination, provision of the Services shall cease immediately and User shall pay all Fees and expenses accrued or incurred through the date of termination. 
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11. Force Majeure. The Company shall not be liable or responsible to User, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
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12. Non-Disparagement. User shall not make any statements or comments of a defamatory or disparaging nature to any third party with respect to or in connection with the Company, or any of its officers, directors, employees, personnel, agents, policies, services, products, or other Users except as required to comply with applicable law. Company reserves the right to terminate User at any time, which will be enforced effective immediately if Company determines User to be violent, dangerous, or disruptive to the Company or other Users. 
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13. Data Collection. Company collects data to improve and analyze its services and products. User authorizes the Company to collect, store, utilize, and share any such data, and furthermore acknowledges the necessity to do so in the interest of the User and Company. For the protection of User and the Company, Company will never share User data with any malicious organization, group, or individual.
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14. Credit Check Authorization. User authorizes the Company to request and obtain User’s information from credit reporting sources, consumer reporting agencies, private credit reporting associations or other third parties regarding User’s creditworthiness and credit history. Furthermore, User authorizes the Company to periodically obtain and use User’s credit report and other credit information provided by a credit-reporting agency, private credit reporting association or third parties. 
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15. Guest Policy. User may bring only as many guests into the Premises as permitted by the capacity restrictions associated with the private studio such User has booked. User is liable for any and all actions or omissions of their guests and shall indemnify the Company for any losses sustained by the Company in connection with such actions or omissions of such User’s guests. All guests must register upon arrival with the Company. Guests may only access the private studio User has booked, the kitchen and the bathrooms. Guests must be under User’s supervision while inside the Premises. 
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16. Restrictions.  Each User acknowledges and agrees that he/she/they or it shall not act or omit to act in any manner that (i) infringes or violates the intellectual property rights or proprietary rights of any third party; (ii) reveals any restricted, confidential or proprietary information of others, including any other party’s trade secret or private information such as another individual’s credit card number, social security number or driver’s license number, unless you own the information or have the owner’s permission to post it; (iii) violates any law, statute, ordinance or regulation; (iv) is prohibited by any employment, contractual or other legal obligation or relationship; (v) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (vi) bullies or advocates the stalking of or the intimidation of another person or is otherwise harmful, fraudulent, inaccurate, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (vii) harms minors in any way; (viii) violates the privacy of any individual or entity; (ix) involves spamming, the sending of mass solicitations, or any other commercial and/or sale activities without our prior written consent; (x) impersonates any person or entity, including without limitation any employee or representative of the Company, without the applicable party’s consent; (xi) is connected with any business that is illegal, fraudulent or otherwise inappropriate or objectionable; (xii) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (xiii) uses any manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the the Company’s equipment or other systems; (xiv) collects email addresses or other contact information of users without their prior consent; (xv) “frames” or “mirrors” any portion of the Company’s software or technology or attempts to decompile, reverse engineer, or otherwise attempt to obtain the source code of the Company’s software or technology; or (xvi) that disrupts the healthy community and space of Company by showing up intoxicated to Company for a session or other related purpose. If the User is deemed intoxicated by Company staff, User will not be allowed to use the studios, the equipment, or any of the facilities of Company, and will be asked to leave with no refund. If the User shows up to Company intoxicated multiple times, Company may terminate User’s Membership with no refund. 
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17. No Guarantee of Results.  User acknowledges and agrees that the Company cannot guarantee that User’s objectives in using the Services will be achieved. The Company makes no representation as to the commercial utility of its advice, recommendations or Services. User shall be solely responsible for making all decisions and taking actions related to their career or business, including compliance with all applicable laws and regulations, and User hereby waives and covenants not to sue the Company or its employees, agents, contractors, or other representatives for any claim related to such matters.
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18. Miscellaneous. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Pennsylvania Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Terms. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. No waiver by the Company of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by the Company.
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19. Further Assurances. Upon the Company’s reasonable request, the User shall, at their sole cost and expense, promptly execute all such further documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
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20. Entire Agreement. This Agreement and all related Exhibits and Schedules, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter. The Parties have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.
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21. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
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22. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at such address that may be designated by the receiving party in writing.

EXHIBIT A

MEMBERSHIP FEES AND POLICIES

Membership Plans. The nature of the services, available discounts and benefits provided by the Company to the User (defined below) are determined by the membership plan selected by User. The Company offers three membership plans at yearly Terms: Base, plan Up and All In. User may change their plan at any time and without incurring any penalty or additional fees.

• ‍Level 1: $299/year‍
• Level 2: $599/year‍
• Level 3: $999/year

Membership Fees. Upon executing a membership agreement, User with membership a.k.a Member shall pay the first year membership fee that corresponds with the membership plan they select. Member shall be charged on the first day of year thereafter on the anniversary date for the membership fee that corresponds with the membership plan they selected. If offered at the then current time by Company and at Company’s sole discretion, Member may be offered the option to pay for their membership in monthly installments.

Payment Plans. If offered by Company at the then current time, Member may elect to pay for membership fees through a payment plan option. Member acknowledges that all membership fees are due and payable on the set dates as outlined at the time of purchase to Member, even if Member decides to terminate their membership prior to the payment plan dates established.

Freezing Membership. Members may elect to freeze their account, which means their access to the space, app, and Membership benefits is no longer available. Members on a Yearly Plan may elect to freeze their account for up to two consecutive months one time per Membership year, which enables credits from months during the freeze to rollover. However, Yearly Members who elect to freeze their account will not have additional months extended to their Membership. Members on a Monthly Plan can freeze for two consecutive months at no charge, after-which their Account will automatically unfreeze.

Age Restriction. User/Member and their guests must be at least 16 years old. Parent/guardian consent is required for membership if User/Member is under the age of 18.

Premises Rules and Regulations. 

1. Access. Member shall have full access to membership benefits while the Premises is opened during operation hours, provided however, that Member shall not access the Premises outside of operation hours without special permission in writing from active staff. User shall access the Premises through Mercantile on Main, Franklin Street and Garage(s) entrances while Sibley Building is open to the public. Users shall access the Premises via the Company’s recommended methods and/or appointments when the Sibley Building is closed.
2. Co-working Space. Co-working space is available to all members on a first come first served basis. The Company does not guarantee availability of co-working space at any time. Member acknowledges that the co-working space is also an event space and may not always be available for use during programming. 
3. Private Studios. Member may reserve private studios during Premises operating hours. Reservations canceled within 24 hours will not reimbursed. If Member is over 1 hour late to their reservation, the reservation will be canceled and not reimbursed, unless staff are notified in advance.
4. Equipment. User/Member understands that some equipment and private studios in the Premises require User/Member to become certified before using the equipment. Using equipment that a User/Member has not been certified for can result in a fine or cancellation of membership. All equipment must remain within the Premises. User/Member is prohibited from taking any Equipment owned by the Company off the Premises. User/Member will be charged directly if they remove a piece of equipment from the Premises. Memberships may be revoked for a violation of this provision.
5. Equipment or Premises Damage. User/Member is responsible for all damage to the Premises or the Company’s equipment caused by them or their guests. User/Member agrees that their account will be charged directly for the cost of repair or replacement.

Personal Property. The Company is not responsible for any personal belongings or equipment that may be left in the Premises. In order to utilize all the Services offered to User, it may be necessary to install software onto a User’s personal computer, tablet, laptop, mobile device or other similar equipment. If User refuses to install such software, User acknowledges and agrees that User may not have access to certain Services. 

EXP Studio Retail. To the extent User/Member would like to sell any goods in the Company’s retail store located on the Premises, User/Member understands that it must agree to the rules and regulations set forth in the Company’s Consignment Agreement (available upon request) and that such User/Member would be required to agree to such Consignment Agreement as a condition to selling such goods at any location on the Premises.

Computer Hard Drive Policy. User/Member understands and acknowledges that the Company will delete all files from the hard drives on the Company’s computers once a month. The Company is not liable for any saved or stored media files that are left on devices in the Premises. If files are lost, the Company is not liable. 

Talent Agency Representation. The Company shall represent User/Member in selling User/Member’s creative services. The parties acknowledge that such representation shall be non-exclusive and that the Company shall be permitted to and may, from time to time, represent other individuals, including those that may directly compete with the User/Member.