This Sales Agreement ("Agreement") is entered into by and between HootBooth Photo, LLC ("Company") and the customer (“Customer”) as stated in the sales invoice.
1. Sale of Photo Booth and Accessories. Customer hereby agrees to purchase from Company as set forth in the sales invoice, which is incorporated herein by reference. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
2. Price. The price and time for payment for the photo booth and accessories is as set forth in the attached Sales Order, which is incorporated herein by reference to this sales agreement.
3. Delivery. Company shall use its reasonable efforts to deliver the photo booth and accessories to Customer on the delivery date set forth in the sales invoice. Unless free shipping is provided, Customer shall pay all transportation, brokerage fees, customs fees, shipping and handling charges unless specified. Customer bears all risk of loss or damage to the photo booth and accessories after acceptance of delivery to the transportation shipping point.
4. Operation of the Photo Booth and Electronic Components. Customer shall be responsible for operation of the photo booth, printers or Instagram Printers in a reasonably competent manner and in compliance with the reference guides provided at time of purchase. Customer shall operate the electronic components including Canon camera and accessories, PCs or tablet computers, Sinfonia printer, and all other associated electronics in a reasonably competent manner and in compliance with the operation manuals of each individual electronic component. Customer shall comply with all applicable rules, laws, and regulations in connection with operation of the photo booth. Customer shall not use the equipment in any manner that could threaten the life or safety of any persons. Customer is responsible for all reasonable repairs due to its negligence of operation or resulting from Customer’s use of photo booth, printer or accessories.
5. Trademark Information. You agree that all of Company’s trademarks, trade names, service marks and other logos and brand features, and product and service names are trademarks and the property of Company. Without Company’s prior permission, you agree not to display or use in any manner the Company’s marks.
6. Disclaimers and Warranty.
(a) Company warrants to the original purchaser of photo booth, enclosures, printers and accessories for the one year Warranty Period as disclosed on our website. The Photo Booth, enclosures and printers will be free from structural defects in materials and workmanship. Minor cosmetic imperfections that do not impair the functionality of the photo booth, printers and accessories are a natural part of the powder coating process and are not covered in the warranty. All electronic components shall be subject to their own manufacturer’s warranty, and are not covered by the Company. The foregoing warranty on the photo booth, enclosures, printer and accessories is subject to the proper installation, operation and maintenance of the products in accordance with installation instructions and the reference guides supplied to Customer. Warranty does not include normal wear and tear on the products including paint chipping and denting. Customer must make warranty claims in writing within thirty days of the manifestation of a problem. Company's sole obligation under the foregoing warranty is, at Company's option, to repair, replace or correct any such defect that was present at the time of delivery.
(b) "Warranty Period" begins on the date the photo booth is shipped and continues for twelve (12) months.
(c) An authorized Company service representative must conduct any repairs under this warranty.
(d) Excluded from the warranty are problems due to accidents, misuse, misapplication, storage damage, negligence, normal wear and tear, or modification to the photo booth, enclosures, printer or its Electronic Components. Overclocking a PC by the customer or other PC modifications and removal of any serial numbers from the PC, printer or display will void the photo booth or printer warranty.
(e) Company does not authorize any person or party to assume or create for it any other obligation or liability in connection with the photo booth and other products except as set forth herein.
(f) THE WARRANTY IN SECTION 6(a) ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, OR USE INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Statement of Business Opportunity. The Company makes no representations or claims as to the amount of revenue or earnings that the Customer could make in pursuit of this business opportunity. The Company imposes no on-going royalties or fees on the Customer’s business. This is not a franchise. There are no existing criminal or civil legal actions with respect to this business opportunity.
9. Non-Compete and Non-Disclosure.
(i) Beginning immediately and as a condition of their respective participation in this Agreement, each Party agrees to maintain the absolute confidentiality of any and all documentation and information, whether verbal or written, provided and/or disclosed by each Party to the other pertaining to Photo Booth, or otherwise pursuant to the terms and conditions of this Agreement (“Confidential Information”).
(ii) Each Party agrees to limit its disclosure of Confidential Information solely to those persons and any third party consultants who have a legitimate need to know the Confidential Information for the purpose of evaluating and providing products under this Agreement, and any such persons and shall prior to such disclosure be informed by the disclosing Party of the confidential and proprietary nature of the Confidential Information and shall agree in writing to comply with the terms of this Agreement, specifically including the confidentiality provisions.
(iii) Each Party agrees not to use the Confidential Information in any way detrimental to the other Party.
(iv) Notwithstanding the foregoing, Confidential Information may be disclosed by the Receiving Party if required by any governmental or regulatory authority or court or otherwise by law, provided that the disclosing Party being required by any court or legislative or administrative body to disclose any Confidential Information shall first provide the non-disclosing Party with prompt written notice of such requirement in order to afford the non-disclosing Party an opportunity to take whatever actions it deems appropriate including intervening in any proceeding and seeking an appropriate protective order. If the non-disclosing Party is unable to obtain or does not seek a protective order and the disclosing Party, in the opinion of its counsel, is compelled to disclose the Confidential Information, disclosure of the information will not be deemed to be a violation of this Agreement, provided, however, that the disclosing Party shall disclose to the person compelling disclosure only that part of the Confidential Information as is required by law to be disclosed.
(v) Each Party will promptly notify the other party in writing if any information comes to its attention which may indicate that there was or is likely to be a loss of confidentiality of any aspect of the Confidential Information. Such Party shall use reasonable efforts to retrieve the lost or wrongfully disclosed Confidential Information and to prevent further unauthorized disclosure or loss of any Confidential Information.
(vi) Upon any termination of this Agreement, or at any other time as may be requested in writing by either Party, the Confidential Information shall be handled pursuant to this Agreement.
10. Indemnification. Customer agrees to indemnify, defend and hold harmless HootBooth Photo, LLC and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
(a) This Agreement, and all matters arising out of or relating to it, shall be governed by the laws
of the State of Texas (exclusive of conflict of laws principles), and shall be executed in Travis County, Texas.
(b) Any legal action or proceeding relating to this Agreement shall be instituted solely in a state or federal court in Travis County, Texas. Company and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
(c) All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail or by fax to the address listed on Sales Order.
(d) Unless noted in the invoice, prices for photo booth and other products listed on our website are exclusive of all city, state and federal taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Customer agrees to pay such taxes directly or to reimburse Company for all such taxes, whether imposed on Customer required to be collected by Company, or imposed on products or on Customer in connection with this sale. Wherever applicable, such tax or taxes shall be added to the invoice as a separate charge on invoiced separately. Customer agrees to pay all personal property taxes that may be levied against photo booths and other products after delivery.
(e) In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
(f) The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for non- payment or breach of Company's proprietary rights, no action, regardless of form, arising out of or in connection with this Agreement may be brought by either party more than one year after the cause of action has accrued.
(g) Customer agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that the Equipment is not (1) exported, directly or indirectly, in violation of Export Laws; or (2) intended to be used for any purposes prohibited by the Export Laws. Customer agrees that the Equipment will only be used or operated in the United States and other territories approved in writing by Company.
(h) Company is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
(i) This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, understandings, representations, discussions, proposals, literature, and the like, written or oral. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement shall supersede the terms in any Customer purchase order or other ordering document.
(j) In any proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and costs incurred.
(k) This Agreement shall be construed as to its fair meaning and not strictly for or against either party.
(l) Company shall not be deemed to be in default of any provision of this Agreement, or for failures in performance, resulting from acts or events beyond its reasonable control. Such acts shall include but not be limited to acts of God, civil or military authority, civil disturbance, war, strikes, fires, other catastrophes, labor disputes, parts shortages, or other events beyond Company's reasonable control.
(m) This Agreement is not assignable, directly or indirectly, by Customer.
(n) This Agreement may be executed in counterparts, including by electronic delivery and fax.