This STUDIO AGREEMENT AND TERMS AND CONDITIONS (this "Agreement") is made by and between The SnapBar, LLC, a Washington limited liability company (the "Company") and the inquirer of services (the "Client") relating to a virtual headshot studio of any duration (the "Studio”) confirmed through a quote (the "Quote") sent to and approved via electronic signature by the Client.
YOU ARE ENTERING INTO A CONTRACT WITH THE COMPANY. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY.
This Agreement is a contract between you, as the Client or as agent for the Client, and the Company. This Agreement constitutes the entire understanding between the Company and the Client and supersedes all prior and simultaneous contracts or agreements between the parties.
RESERVATION, FEES AND PRICING
SERVICE FEE: The service fee (the "Service Fee") encompasses only those items included in the list of services located in the invoice sent by the Company to the Client. The Service Fee is composed of the non-refundable Studio Activation fee, the Credit Pack fee, and optional add-ons. The Service Fee does not include applicable state sales tax. The Company will be under no duty to perform its obligations under this Agreement until such time as Client has paid the service fee in full.
RESERVATION: A signed Quote and the Service Fee are required for the Company to provide the Client with a Studio. If the Client wishes to cancel their order or if there is a breach of this Agreement by the Client, the Company shall be entitled to keep the entirety of the Studio Activation fee and the Client agrees that it shall have no recourse to recover such Studio Activation fee or any portion thereof. The Client shall also be responsible to pay to the Company any amounts that the Company expended in furtherance of performing the Company's obligations under this Agreement that are incurred up to and including the time that the Company receives the Client's notice of cancellation as well as any unavoidable amounts the Company incurs after the notice of cancellation.
ADDITIONAL PAYMENT TERMS: The Company will be under no duty to perform its obligations under this Agreement until such time as Client has paid the Service Fee in full. In the event the Client fails to remit payment as specified, the Company shall have the right to immediately terminate this Agreement with no further obligation, retain any monies already paid, and provide no services. Returned checks will be assessed a $30 non-sufficient funds fee and Company will not perform any obligations until payment is made with sufficient funds.
PRICING: Services or merchandise not included in this Agreement will be sold at the current price when the order is placed. All prices are subject to change at any time without notice. If at any point the Company issues credit vouchers or other similar instruments representing credit that the Company will provide to a Client, those instruments shall have no intrinsic cash value, shall be non-transferable, and may only be applied toward specified products or services from the Company.
LIQUIDATED DAMAGES: Following receipt of the Service Fee, the Company agrees to build a Studio for the client. If the Client cancels the Studio or fails to pay the remaining portion of the Service Fee when due, the Company may have expended time and resources for the Client’s Studio that could have been put towards other products or services. As a result, the Client and Company agree that (1) it will be difficult to estimate the total amount of damages to the Company in the event that the Client breaches this Agreement, including but not limited to a failure by the Client to pay the Service Fee, and (2) that the amount of the Service Fee is the best estimate of the damages to the Company if the Client were to breach this Agreement. As a result, the Company shall be entitled to liquidated damages in the amount of the Service Fee (and entitled to keep the non-refundable Activation Fee) in event of a breach of this Agreement by the Client. Company is not obligated to seek Liquidated Damages and does not waive its right to pursue any other damages.
EVENT PROVISIONS AND AGREEMENTS
STUDIO ACTIVATION: The Client agrees to provide their preferred studio activation date, which is to be no sooner than six business days after the Quote has been signed, via the Company’s customization form or otherwise. Notification of any changes in schedule must be made in a timely manner and confirmation of receipt must be obtained from the Company by the Client. The Company does not guarantee the Studio will be supplied to the Client within any certain amount of time, and if the Client accelerates the schedule, expedition fees may apply.
INHERENT QUALITIES: The Client acknowledges that it is aware that color dyes in photography may fade or discolor over time due to the inherent qualities of dyes as well as digital media which may deteriorate due to de-lamination and oxidation, and Client releases the Company from any liability for any claims whatsoever based upon the deterioration due to such inherent qualities. The Client also acknowledges that Client has the sole responsibility for any printing done by any third party and Company makes no representation of quality for printing.
DISCLAIMER: The Company disclaims any and all liability and the Client agrees that the Company shall have no liability due to causes beyond the control of the Company including but not limited to improper use of technology by the Company, power outages, and improper use of technology by users.
AUTHORIZATIONS: The Client represents and warrants to the Company that it has obtained any and all necessary authorizations, permits, licenses, or other agreements from the virtual headshot users, such that the Company has full rights to provide the product in connection with providing the services requested by the Client hereunder. This includes, but is not limited to, any protected intellectual property, such as copyrights, trademarks, rights of publicity, that may appear in the images taken with the Company’s product (including any such intellectual property present in the background of such photographs based on the location of the users), and the permission necessary to enable users to take such photographs. The Client agrees to indemnify, defend, and hold Company harmless for any breach of this section.
RESELLING: The Client agrees that it shall not charge users for services rendered by the Company. The Client must obtain written permission from the Company prior to selling the images taken by the Company or charging any individual or entity for the services provided by the Company.
LIMITATIONS OF LIABILITY
LIMIT OF LIABILITY: The Client agrees that in all instances, the Company’s total and aggregate liability to Client for any claim for damages, reimbursement or loss, relating to or in connection with this Agreement, is solely limited to amount of the Service Fee or other form of compensation paid by Client to Company over the immediately preceding six (6) month period. In the event that the product malfunctions for reasons outside the Company’s control such as technology failure, the Company’s liability is further limited to the return of the Service Fee. Because users are at liberty to act independently, the Company cannot guarantee delivery of any specifically requested image(s), including any specific number or quality of images.
FORCE MAJEURE: In the event that the Company is unable to supply its services due to an illness, act of God, act of terrorism, or other cause beyond the control of the Company, responsibility and liability is limited to the return of the Service Fee.
INDEMNIFICATION: The Client covenants and agrees to indemnify, defend and hold the Company harmless from all claims, demands, actions or damage of every kind and nature, including attorney fees and all other costs and expenses necessarily incurred, which may accrue to, or be suffered by the Company due to any breach of this Agreement by Client or by virtue of the Company providing the services described hereunder to Client.
RELEASES, POLICIES, AND COPYRIGHTS
FILM AND COPYRIGHTS: The images produced by the Company are protected by copyright and are not considered works-made-for hire under the Copyright Act of 1976, Title 17 U.S.C., as amended (the "Copyright Act"). The photographs may not be reproduced, disseminated, or displayed except as specifically provided for herein. Upon receipt of full payment of the Service Fee, the Company agrees that the Client shall receive a limited license to use, display and disseminate the images provided by the Company to Client. The Client shall not receive a license to commercially exploit or in any way alter such photographs, except as may be separately agreed to in writing between the Company and Client. Client and users will not use any image in violation of any laws, including, but not limited to, copyright laws or rights of publicity.
MODEL RELEASE: The Client hereby assigns to the Company, the irrevocable and unrestricted right to use and publish images from the Client’s virtual headshot booth which may be used for editorial, trade, advertising, educational and any other purpose and in any manner and medium; to alter the same without restriction; and to register the copyright of the same without restriction. This includes, but is not limited to, any rights arising under any copyright laws or rights of publicity or personality that the Client or virtual headshots users believe they may have. The Client and all virtual headshots users release all claim to profits that may arise from use of images. The Client covenants that it has obtained a model release, that substantially incorporates all requirements of this Agreement, from each of the virtual headshots users and to the extent that any such model release has not been obtained, the Client agrees that it will fully defend, indemnify and hold the Company harmless from any damages, losses or liability that results from Client’s failure to obtain such model release. Client acknowledges that the Company is relying on Client’s representations herein and has informed all virtual headshots users that images taken will be included in an album accessible by the Client and the Company, unless otherwise arranged.
SUCCESSORS AND ASSIGNS: The terms and provisions of this Agreement shall be binding on and inure to the benefit of the successors and assigns of the parties.
NONASSIGNABLE: This Agreement may be freely assigned by the Company to its affiliates or affiliated entities. This Agreement is not assignable by the Client without the express consent of the Company, which may be withheld at the Company’s sole discretion.
JURISDICTION, VENUE AND GOVERNING LAW: All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule (whether of the State of Washington or any other jurisdiction). Any claim or cause of action arising under this Agreement may be brought only in the federal and state courts located in Pierce County, Washington. The parties hereby irrevocably consent to the exclusive jurisdiction of such courts.
SEVERABILITY: Unless otherwise provided herein, if any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
NO WAIVER: Any agreement to waive one or more provisions of this Agreement or any failure by one or both parties to enforce a provision of this Agreement shall not constitute a waiver of any other portion or provision of this Agreement. Any waiver of a breach or default hereunder shall not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Agreement.
HEADINGS: The headings and sub-headings of clauses contained are used for convenience and ease of reference and do not limit the scope for intent of the clause.
ATTORNEYS' FEES. In the event of any litigation or any other action regarding or relating to this Agreement, the Quote, or the invoice(s), the prevailing party shall be entitled to recover from the other party all of its reasonable attorneys' fees and other reasonable expenses incurred in connection therewith, including in any appeal therefrom or in any bankruptcy.