Terms & Conditions

This Photography Services Agreement (“PSA”) is entered into as by and between Bluebird Portraits (“Bluebird”), a Delaware corporation having its principal offices at 2716 Fairmount St. Dallas, TX 75201 and the entity entering into this PSA with Bluebird through a corresponding Order Form or otherwise (“Customer”, and together with Bluebird, each a “Party” or jointly as the “Parties”). In consideration of the mutual obligations contained in this Agreement, the Parties agree as follows:

1.1. “Administrative Services” means the services associated with processing and management of an Order.

1.2. “Agreement” means this PSA in combination with any associated Order Form(s).

1.3. “Applicable Law” means any law, regulation, rule, or order, of any government authority applicable to a Party, its business, or the subject matter of this Agreement, including but not limited to the following United States (and, if applicable, Canadian) statutes and any regulations relating thereto.

1.4. “Artistry Services” means custom photo editing services applied to images captured during the Photography Services.

1.5. “Authorized User” means an agent of Customer who is authorized by the Customer, in writing, to access the Customer’s account.

1.6. “Confidential Information” means any information however disclosed by a Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) that is when disclosed or within thirty (30) days of disclosure designated or described as “Confidential,” “Proprietary,” or information that the Receiving Party knows, or reasonably should have known, was the Confidential Information of the Disclosing Party

1.7. “Content” means any and all text, pictures, video, or any other type or form of information contained in the body of any Message.

1.8. “Enter To Win Program” means any program offered by Bluebird where selected Customers are provided discounted or complimentary Photography Services, Artistry Services and/or Product.

1.9. “In House Payment Plan” means Bluebird’s program for payment over time by Customer to Bluebird for services defined in an Order. An In House Payment Plan is a type of payment plan this is also commonly referred to as a Layaway Plan. Orders paid for under an In House Payment Plan are fully refundable until they are paid in full, except for the first fifty (50%) of the Order, which is immediately earned by Bluebird as compensation for the Photography Services, Artistry Services and Administrative Services associated with an order.

1.10. “Order” means the combination of this PSA with any associated Order Form(s)

1.11. “Order Form” means any order form signed by the Parties that indicates the Photography Services, Artistry Services, Administrative Services, and Product to be provided by Bluebird and the fees to be paid by Customer and which also incorporates by reference this Agreement.

1.12. “Photography Services” means photography services provided by Bluebird to Customer in a Bluebird studio location.

1.13. “Photography Session” means the appointment where Customer is photographed in a Bluebird Studio

1.14. “Product” means the portrait and display products provided to Customers by Bluebird including but not limited to digital images, memory books and wall portraits.

1.15. “Third Party” means any person not a Party to this Agreement.

1.16. “Virtual Viewing Session” means the appointment where Customer views the images captured during their Photography Session.

2. BLUEBIRD SERVICES.

2.1. Photography Services. Subject to the terms and conditions of this Agreement, Bluebird will provide custom Photography Services to Customer on a non-exclusive basis in Bluebird’s magical forest photography studios. Photography Services are provided by Bluebird on an appointment-only basis. Customer acknowledges that they forfeit any reservation fee associated with the appointment should the Customer arrive more than five (5) minutes late for their appointment or cancel or reschedule within 10 days of their original appointment date. Ownership of all images captured during the Photography Sessions remains solely with Bluebird until an Order is completed with the Customer. Upon payment in full to Bluebird by the Customer for a Customer Order, Bluebird grants the Customer an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of the images the Customer Ordered.

2.2. Right To Include Customer In Bluebird Marketing. Customer grants to Bluebird an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of the Customer’s name, image, and likeness for the purposes of any Bluebird marketing and promotional Content unless the Customer chooses to opt-out at the time of booking their appointment for the Photography Services.

2.3. Video Surveillance. Customer acknowledges that Photography Services provided by Bluebird at the Bluebird studios are under video surveillance at all times for the protection of all Parties.

2.4. Artistry Services. Upon completion of an Order from the Customer, Bluebird will provide custom Artistry Services to the images ordered by the Customer. Artistry Services will include basic editing and the addition of magical forest artistic elements identified in the Customer Order. Bluebird does not provide custom image editing services directed by the Customer after the Order.

2.5. Administration Services. Upon placement of an Order by Customer, Bluebird will process the Order, manage and track billing receipts from Customer, complete Artistry Services and produce the ordered Product(s) and deliver the Product(s) to the Customer.

2.6. Product. Based on the Product(s) selected by the Customer via the Order, Bluebird or Bluebird agents, will produce the Product(s) and ship the Product(s) to the Customer.

3. FEES AND PAYMENTS

3.1. Fees. Customer shall pay to Bluebird the amounts set forth in the Order Form and invoiced by Bluebird in connection with any services provided by Bluebird to Customer.

3.2. Reservation Fees. In order to book a Photography Session with Bluebird, Customer must pay a reservation fee to Bluebird. This reservation fee is refundable should the Customer adhere to the originally scheduled appointment time for both their Photography Session and their Virtual Viewing Session. Appointments can be rescheduled without penalty no later than twenty-four (24) hours prior to the originally scheduled appointment time.

3.3. In House Payment Plan. Bluebird may offer Customer the ability to pay for their Order via a layaway program, referred to as an In House Payment Plan. Under this program, Customer makes monthly payments as described in the Order Form, until the Order is paid in full. Once the Order is paid in full, Product will be shipped to Customer by Bluebird. Should Customer utilize an In House Payment Plan, fifty percent (50%) of the Order value or seven hundred fifty dollars ($750), whichever is greater, is fully earned by Bluebird immediately upon placement of the Order to compensate Bluebird for Photography Services, Artistry Services and Administrative Services associated with the Order. Should Customer not complete the payments associated with the In House Payment Plan, the remainder of the Order value is fully refundable to Customer within thirty (30) days of a written request to Bluebird by Customer. Should Customer not notify Bluebird of their request for such refund prior to 12 months of the date of the Order, any payments made by Customer under the In House Payment Plan will be fully earned by Bluebird and are no longer eligible for refund.

3.4. Enter To Win Program. Bluebird regularly offers an Enter To Win Program to Customers. This program allows participating Customers to realize a discounted Photography Services (a single photography session) and discounted Product (a 8”x10” portrait). Enter To Win Program participants can transfer their discounted services to family members or friends by notifying Bluebird. Customer participation in the Enter To Win Program is limited to one occurrence per immediate family each calendar year.

3.5. Invoicing and Payment. Any invoiced charges are due immediately upon invoice. Unless otherwise specified in the Order Form, all payments are due and payable by Customer to Bluebird in United States dollars upon receipt of the invoice. Customer acknowledges fifty percent (50%) of the Order value or seven hundred fifty dollars ($750), whichever is greater, is fully earned by Bluebird immediately upon placement of the Order to compensate Bluebird for Photography Services, Artistry Services and Administrative Services associated with the Order. If Customer disputes any amounts set forth in the invoice, Customer shall notify Bluebird in writing within 15 days of the receipt of the invoice and the Parties shall work together in good faith to resolve such dispute. Should the Parties not be able to resolve such dispute, Customer explicitly waives any right to indirectly dispute an invoice or charge with Bluebird via their credit card company, merchant bank or any other provider of credit to Customer.

3.6. Late Payments and Interest. Undisputed payments not received by the due date will be assessed a finance charge of one and one half percent (1.5%) per month. If Customer is paying by credit or charge card, Customer acknowledges and agrees that this Agreement constitutes a services agreement as specified in the Order Form and Customer is not entitled to any refund.

3.7. Taxes and Delivery Fees. Customer will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Order purchased by Customer. Similarly, Customer will pay any applicable delivery fees charged to Bluebird by freight, shipping or delivery companies.

4. INFORMATION SECURITY AND PRIVACY

4.1. Information Security. In providing the Photography Services, Bluebird employs information security protocols and measures consistent with generally accepted industry standards, and in any event no less than commercially reasonable standards, considering the types and nature of the information processed, stored, accessed, collected and/or used by Bluebird and/or its permitted affiliates, agents, consultants, personnel and other representatives, and all applicable laws and regulations. Bluebird maintains a data breach plan and upon the occurrence of any data breach with respect to the systems maintained by or on behalf of Bluebird affecting Customer information, Bluebird will comply with all applicable laws and implement the procedures required under such data breach plan.

4.2. Privacy Policy. Bluebird complies with the Bluebird Privacy Policy which can be found at https://bluebirdportraits.com/privacy-policy.

5. REPRESENTATIONS AND COVENANTS; WARRANTIES DISCLAIMER; LIMITATION OF LIABILITY

5.1. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLUEBIRD DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY SERVICES PROVIDED BY BLUEBIRD HEREUNDER, INCLUDING WITHOUT LIMITATION THE PHOTOGRAPHY SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. BLUEBIRD DOES NOT WARRANT THAT THE PHOTOGRAPHY SERVCIES OR ANY OTHER SERVICES PROVIDED WILL MEET CUSTOMER’S REQUIREMENTS.

5.2. LIMITATION OF LIABILITY. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, AND COSTS OF LOST OR DAMAGED DATA, EVEN IF AND REGARDLESS OF WHETHER IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

5.3. IN NO EVENT SHALL BLUEBIRD’S TOTAL LIABILITY FOR ANY CLAIM(S) OR DEMANDS ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO BLUEBIRD BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT(S) FROM WHICH THE CLAIM(S) OR DEMANDS AND LIABILITY ARISES. THE LIMITATIONS IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS IN THIS SECTION ARE A MATERIAL BASIS OF THE BARGAIN, AND THE TERMS OF THIS AGREEMENT WOULD BE DIFFERENT WITHOUT SUCH LIMITATIONS.

6. INDEMNITY

6.1. Indemnification of Bluebird. Customer shall (a) defend Bluebird, its Affiliates, and their respective officers, directors and employees (individually, a “Bluebird Indemnitee,” and collectively, “Bluebird Indemnitees”), against any Permitted Bluebird Indemnitee Claim, and (b) pay the amount (i) awarded to any such Third Party in any final judgment against any Bluebird Indemnitee based on any Permitted Bluebird Indemnitee Claim, or (ii) set forth in any written and executed settlement in full of any and all Permitted Bluebird Indemnitee Claims of such Third Party. As used herein, “Permitted Bluebird Indemnitee Claim” means any Third Party claim asserted against any Bluebird Indemnitee that (1) Customer’s use of Bluebird’s services, or (2) arises from Customer’s material breach of the Agreement.

6.2. Procedure. The foregoing obligations are conditioned on Bluebird promptly notifying Customer in writing of such action, giving Customer sole control of the defense and settlement of the claims against Bluebird (except that Customer may not settle any claim against Bluebird unless it unconditionally releases Bluebird from all liability) and at Customer’s reasonable request and expense, assisting Customer in such defense.

7. MISCELLANEOUS

7.1. Survival. The provisions of Sections 1, 3, (to the extent of accrued and outstanding unpaid fees), 4, 5, 6, and 7 will survive the termination or expiration of this Agreement.

7.2. Independent Contractors; No Third-Party Beneficiaries. In making and performing this Agreement, Bluebird and Customer act and will act at all times as independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership, or employer and employee relationship between them. Neither Party shall have the power by virtue of this Agreement to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement is entered into solely between the Parties and may only be enforced by a Party against the other Party.

7.3. Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of courier, by certified U.S. mail, postage prepaid and return receipt requested, by a nationally recognized express mail service or by electronic mail to the corresponding Party at: (a) with respect to Bluebird, the contact information listed below, and (b) with respect to Customer, any address or email made available to Bluebird by Customer. Notice will be effective upon receipt or refusal of delivery. Each party may change its address for receipt of notice by giving notice of such change to the other party.

If to Bluebird:

Bluebird Portraits

2716 Fairmount St.

Dallas, TX 75201

With a copy to: shale.gulbas@bluebirdportraits.com

7.4. Assignment. Except with respect to an assignment between Bluebird and any of its Affiliates, neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld, except pursuant to a merger, acquisition, or sale of all or substantially all of such Party’s assets, in which case assignment shall be permitted without the consent of the other Party. Except as permitted by the foregoing, any attempted assignment will be null, void, and of no effect. In the event of permitted assignment of this Agreement, all terms and conditions hereof, will be binding on and inure to the assignee as though such assignee were an original Party hereto.

7.5. Force Majeure. Any delay in the performance of any duties or obligations of either party, except the payment of money owed, will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party (a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

7.6. Intellectual Property. The Parties retain all rights, title, and interest in and to their respective intellectual property and nothing in this Agreement, or the performance of a Party’s obligations hereunder, shall, or be construed to, operate as, or to cause, any conveyance, license, or other transfer of a Party’s intellectual property rights to the other Party or any Third Party.

7.7. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Texas, U.S.A. without regard to, or application of, any choice of law or conflicts of law rules thereof. This Agreement is prepared and executed in the English language only and any translations of this Agreement into any other language that either Party may prepare shall have no legal or binding effect on the other Party.

7.8. Jurisdiction and Venue. The Parties agree that any claims of any kind arising from, or related to, this Agreement shall be commenced exclusively in a state or federal court sitting in the state of Texas, U.S.A and each Party hereby (a) irrevocably submits to the jurisdiction of such courts over it, and (b) waives, and agrees not to assert in any action or proceeding in such courts to the fullest permitted by law any defense or objection that the action or proceeding is brought in an inconvenient forum, that the venue of the action or proceeding is improper, or that this Agreement, or the subject matter hereof, or any of the transactions contemplated hereby, may not be enforced in or by such courts. Notwithstanding the foregoing, either Party may commence in any court of competent jurisdiction an action solely for the purpose of obtaining an injunction against the other Party for an alleged violation hereof.

7.9. Agreement, Modifications, Severability, and Waiver. This Agreement, together with all Exhibits attached hereto, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous, oral or written agreements, discussions, and understandings between the Parties with respect to the subject matter hereof, it being understood that neither Party will be bound by any conditions, inducements, or representations other than as expressly provided for herein. This Agreement may not be amended or modified except in writing duly executed by the Parties. If any provision of this Agreement is invalid or unenforceable for any reason in any court or tribunal of competent jurisdiction, such provision will be construed to have been modified to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering such provision invalid or unenforceable in any other case, circumstance, or jurisdiction or of rendering other provisions of this Agreement invalid or unenforceable whatsoever. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is, or would be, sought and any such waiver will constitute a waiver only with respect to the specific matter described there in and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

7.10. Counterparts. This Agreement may be executed in counterparts, including by electronic transmission, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same Agreement.