Term & Conditions
Effective as of June 17th 2021
This PHOTO BOOTH RENTAL AGREEMENT AND TERMS AND CONDITIONS (this “Agreement”) is made by and between Act1 Photo Booths (the “Company”) and the inquirer of services (the “Client”) relating to any event(s) (the “Event(s)”) booked through the booking forms (the “Booking Forms”) located on the Company’s website (www.act1photobooths.com) or any other related website or page operated by the Company.
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.
RESERVATIONS, CHANGES, AND CANCELLATIONS
RESERVATION: An electronically submitted Booking Form and a non-refundable deposit are required to reserve the dates and times of the Event(s). If the Event(s) are rescheduled, postponed, or cancelled; or if there is a breach of this Agreement by the Client, the Company shall be entitled to keep the entirety of the Deposit and the Client agrees that it shall have no recourse to recover such Deposit or any portion thereof. The Client shall also be responsible to pay to the Company any amounts that the Company has 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.
CHANGE IN EVENT DATE: If subsequent to this Agreement, the Client changes the date of the event with a reasonable period of advance notice of no less than 30 days, the Company will use its reasonable commercial efforts to accommodate the Client and provide services on the changed date. If, after exercise of its reasonable commercial efforts, the Company cannot provide such services or the Company’s personnel, including but not limited to the attendant assigned to the Event, is not available on the changed date of the Event, the Company shall be entitled to keep the deposit and neither party shall have any further liability or obligation under this Agreement except as otherwise stated herein. If the Company is able to accommodate the change to the date of the Event, the Client shall be charged the then-current price for such Event. The Company shall have no obligation to accommodate a change to the Event date with less than 30 days advance notice from the Client.
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 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.
DEPOSIT AND PAYMENT: After submitting the Booking Form, the Company shall send an invoice to the Client stating the Service Fee applicable to the Event. The Client is responsible for making a deposit payment, equal to 50% of the Service Fee (the “Deposit”), to the Company within seven (7) days of the date of the invoice. The Company shall have no obligations or liability to perform any services until the Company has received the Deposit. The Client shall be liable for and shall pay the difference between the Deposit and the Service Fee to the Company a minimum of thirty (30) days prior to the date of the applicable Event. If the Client is booking an Event with less than thirty (30) days prior to the Event date, the Client shall pay the entire amount of the Service Fee within seven (7) days of the date of the applicable invoice submitted by the Company to the Client for such Event. If the Client is booking an Event with less than seven (7) days prior to the Event date, the Client shall pay the entirety of the Service Fee immediately upon receipt of the applicable invoice for such Event, and in no instance shall the Company perform services prior to the receipt of the entirety of the Service Fee.
ADDITIONAL PAYMENT TERMS. If the Client does not make payment of the Service Fee upon the dates and in the amounts stated herein, the Client agrees that the Company may, in its sole and absolute discretion, assess a late payment charge in the amount of $150 per month for such late payment. 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 not attend the Event(s). Returned checks will be assessed a $30 non-sufficient funds fee.
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 Deposit, the Company agrees to reserve the Event date in the Company’s schedule in anticipation of the Client’s Event. If the Client cancels the Event or fails to pay the remaining portion of the Service Fee when due, the Company may not have sufficient time prior to the Event date to offer the Company’s services to a different client, or may need to do so at a reduced cost. 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 when due, 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 any Deposit made as partial payment thereof) in event of a breach of this Agreement by the Client.
EVENT PROVISIONS AND AGREEMENTS
EVENT SCHEDULE: The Client agrees to confirm the schedule of the Event at least two-weeks prior to the date of the Event. Notification of any changes in schedule or location must be made in a timely manner and confirmation of receipt must be obtained from the Company by the Client. The Client is responsible for providing the Company with the correct date of the Event, and shall bear the full risk of loss if the Client provides an incorrect Event date to the Company. If the Event is to occur less than two-weeks from the date of booking, the Company shall use the information provided to the Company on the Booking Form as the confirmation of the schedule required hereunder.
NUMBER OF PHOTOS: Numbers of guests at the Event and their involvement with the Company varies per event. The Company does not guarantee any number of photos for the hosts.
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.
CAPTURE AND DELIVERY: The Company is not liable to deliver every image taken at the event. The determination of images delivered to the Client is left to the discretion of the Company.
SHOOTING TIME / ADDITIONS: The Client and the Company agree that cooperation and punctuality are essential to accomplish the goals and wishes of all parties. Photo booth rental commences at the scheduled start time and ends at the scheduled end time. If the Client does not arrive at the appointed time for the Event(s), rental will commence at the scheduled start time and end at the scheduled end time. All additional time beyond the scheduled end time will be billed to the Client at the Company’s hourly rate for additional time, and such additional time shall be provided by Company based on the Company’s availability in its sole discretion.
VENUE AND LOCATION LIMITATIONS: The Company is limited by the rules and regulations of the venue, location and site management for any Event. The Client agrees to accept the results of their imposition on the Company. Negotiation with the venue or site management regarding the application of any rules and regulations is solely the Client’s responsibility; the Company will offer technical recommendations only and shall bear no liability if such rules or regulations prevent the Company from performing all or part of the services.
DAMAGE TO COMPANY PROPERTY. If the services to be provided hereunder involve use of any of the Company’s property, including but not limited to the photo booth, tablet computers, or other forms of Company property, the Client agrees that it shall be liable for any damage caused to such property while such property is located at the Event site, including in the event that such damage is caused by any Event attendee or invitee of the Client, except for damage to such property caused by the Company or its personnel. Client agrees that its liability under this section shall not be limited to the liquidated damages otherwise provided for herein.
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 obtrusive guests, lateness of the Client or guests, weather conditions, schedule complications, incorrect addresses provided to the Company, incorrect dates provided to the Company, rendering of decorations, or restrictions of the locations. The Company is not responsible for backgrounds or lighting conditions which may negatively impact or restrict the photo coverage. The Company disclaims any and all liability, and the Client agrees that the Company shall not be liable for not photographing the entirety of the Event or any specific individual or object present at the Event.
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 Event venue and each and every guest attending such Event, such that the Company has full rights to take and use the photographs 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, or architecture rights, that may appear in the photographs taken by the Company or its equipment (including any such intellectual property present in the background of such photographs based on the location of the Event venue or the venue itself), and the permission necessary to take and disseminate 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 Event guests or attendees for services rendered by the Company at the Event. The Client must obtain written permission from the Company prior to selling the photographs taken by the Company or charging any individual or entity for the services provided by the Company. Notwithstanding the foregoing, this section shall not apply to any admission or other type of entrance fee that the Client charges for admission to the Event.
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 digital files have been lost, stolen, or destroyed for reasons beyond the Company’s control, including but not limited to camera, hard drive, or equipment malfunction, the Company’s liability is further limited to the return of the Service Fee. The limit of liability for a partial loss of originals shall be a prorated amount of the exposures lost based on the percentage of total number of originals. Because an event is an uncontrollable event, the Company cannot guarantee delivery of any specifically requested image(s). Client further recognizes and agrees that an entire event cannot be replicated, reenacted or repeated for the purpose of a re-shoot, and that the Company has no obligation under this Agreement to do so.
ATTENDANTS ILLNESS OR INJURY: Should the Company personnel previously assigned to the event become unexpectedly ill or injured, the Company shall make best efforts to secure the services of an alternative local personnel for the event. If the services of an alternative local personnel cannot be secured, then the Company shall promptly reimburse Client any and all Service Fee amounts Client has previously paid to the Company in connection with the applicable Event, and neither party shall have any further obligations or additional liability under this Agreement.
INAPPROPRIATE BEHAVIOR BY GUESTS: If at any point during the Event the Company personnel, in their sole and absolute discretion, determine that behavior of the Event guests, staff, attendees or other person(s) at the Event is inappropriate, threatening, hostile or offensive, including but not limited to behavior that the Company personnel determines make them feel unsafe, harassed or sexually harassed, the Company personnel may immediately cease to provide any further services and leave the Event. In such an instance, the Client will remain fully liable for any sums due, including but not limited to the Service Fee, as stated in this Agreement, and the Company shall be fully discharged of any and all further liability to the Client.
FORCE MAJEURE: In the event that the assigned attendant from the Company is unable to perform due to an injury, illness, act of God, act of terrorism, or other cause beyond the control of the Company, the Company will make every effort to secure a replacement. If the situation should occur and a suitable replacement is not found, 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, including but not limited to the following occurrences: theft of or damage caused to the Company’s equipment, personnel or property at the Event situs by Event attendees, regardless of whether such attendees are personnel of the Client, invitees of Client, or attending in any other capacity, photographic materials being damaged in processing, loss of photographic materials due to camera malfunction, loss of photographic materials in the mail, and photographic materials being stolen while outside the control of the Company.
PERMITS, RELEASES, POLICIES, AND COPYRIGHTS
PERMITS: The Client covenants that it has acquired all necessary permits and permissions for activities and at all locations for which it has engaged the Company and the Company’s services.
FILM AND COPYRIGHTS: The photographs 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. The Company retains all ownership and intellectual property rights, including copyright, in and to all of the photographs and images produced in connection with this Agreement and the Company’s services. 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 photographs provided by the Company to Client. Notwithstanding the foregoing, 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. In all instances, the Company name shall be included and credited in each photograph produced under this Agreement.
MODEL RELEASE: The Client hereby assigns to the Company, the irrevocable and unrestricted right to use and publish photographs containing images of the Client, guests of the Client, or Event attendees 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. The Client releases all claim to profits that may arise from use of images. The Client covenants that it has obtained a model release, in substantially the same form as this section, from each of the persons present at the Event 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 persons present at the Event that images taken by the Company at the Event will be published in an album on the Company’s website.
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 in 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 Booking Form(s) 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.