Wedding Photo-Video Contract Terms and Conditions
1. By checking the boxes next to each Client name and by clicking the Process Payment button, each Client identified on the Online Booking and Process Payment webpage (collectively, “Client”) and Eivan’s Photo Inc. (“Eivan’s”) enter into this Wedding Photography & Videography Contract (“Contract”) to protect both Client and Eivan’s and to confirm the understanding and agreement of the parties. To the extent Client’s selected package does not include certain services or features, such as videography or a Photobooth, the provisions hereof related to such services or features shall not apply. This Contract supersedes and replaces all previous understandings, agreements or contracts, written or verbal, between Eivan’s and the Client. Any modification of this Contract will not be valid unless made in a writing signed or acknowledged by both parties. Client and Eivan’s agree that digital or electronic signatures shall be binding on the parties and sufficient to execute, negotiate and finalize this Contract. If Client wishes to purchase any service or product made available through www.eivans.com (the “Site”) (each such purchase, a “Transaction”), Client may be asked to supply certain information relevant to your Transaction including, without limitation, Client’s credit card number, the expiration date of the credit card, Client’s billing address, and Client’s shipping information. EACH CLIENT REPRESENTS AND WARRANTS THAT EACH CLIENT HAS THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, each Client grants to Eivan’s the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by Client or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
THIS AGREEMENT is between Eivan’s Photo, Inc. of 10020 W. 190th Pl. Mokena, IL 60448 (“Eivan’s”) and the Client for the purposes of providing photography, video and other services for the stipulated consecutive hourly coverage amount notated within the booking invoice and its contents on the booking date (hereinafter referred to as the “Contract”). For purposes of this Contract, the first page Event and Parties Information shall be incorporated as a part of this Contract. For the protection of both parties and to reflect the understanding and agreement of both parties, the parties agree to the following:
2. SCOPE OF WORK
This Contract establishes an order for wedding photographs, albums, prints and video and or any other media that might be purchased using this Contract. Eivan’s shall provide photography, video and other services for Client. If the selected package includes features such as but not limited to, videography or the use of other services, the provisions hereof related to such services will apply.
3. PREVIOUS UNDERSTANDINGS & MODIFICATIONS
The Parties agree that this Contract supersedes and replaces all previous understandings, agreements, or contracts, written or verbal between Eivan’s and Client. Any modification of this Contract will not be valid unless made in writing and signed by both parties as evidence of the parties agreeing with the modifications made
Client agrees to pay the total amount as indicated on the booking contract and guarantees that all payments shall be rendered as indicated by the “Statement of Account – Payment Schedule” on the booking contract. Client agrees that all monies whether in the form of a deposit, retainer or other are non-refundable. Balance must be paid no later than 60 days prior to the event date. If the Client selects to pay by installment, pursuant to the payment terms as offered by Eivan’s, Client agrees to pay an additional 5% (five percent) of the total amount of the contract, payable in equal installments over the course of the installment payment period. Additionally, other provisions located in this Booking Invoice as they pertain to the terms and conditions of the payment shall be applied accordingly. In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including commission on collection of the additional costs and also including legal demand costs. Overdue accounts will be subject to interest at the rate of 13% per invoice, calculated for the period the account is due until the date it is paid. Client agrees to pay an additional $500.00 for any credit card dispute attempt if the dispute is unsuccessful for the amount disputed plus all collection and legal fees until complete amount is paid in full not as a penalty but as a fee for extra labor to research and submit additional paper work for credit card processor.
5. CHANGE OF DATE, TIME, SCHEDULE OR LOCATION OF VENUE
In the event of any change in date, time, schedule or location of event, Client understands and agrees that Eivan’s must be notified immediately of any changes that may affect its performance under the Contract including but not limited to a change in date, time, schedule, or location of the event. Notification of any changes must be in the form of a written notice sent via email for documentation. In the circumstance that an email is sent, a confirmation of receipt must be in writing. However, upon notice of any changes in the date, time, schedule or location of the event (including Client’s cancellation of the event), it shall be within the sole discretion of Eivan’s to either (a) deem the change to be a cancellation of this Contract and collect payment for all services rendered prior to and including the date of cancellation plus a Cancellation Fee as provided herein; or (b) accommodate the change in date, time, schedule or location and charge the Client at the payment rate effective at the time of the change. Further, it is the Client’s responsibility to confirm all arrangements at least 7-10 days prior to the event. In the event of change of address or contact information (time, etc.) as listed, Client must notify Eivan’s immediately.
6. CANCELLATION POLICY
Upon providing a retainer/deposit there shall be NO refund issued after the signing of this Contract due to the reservation of the photography date. Client understands that when they sign the Contract, Eivan’s Photo, Inc. reserves a photographer/videographer or both for the day and time of event. Due to the work and time involved, in the circumstance that the event is cancelled & for any reason, Client shall pay Eivan’s, Photo, Inc. for all services rendered prior to and including the date of cancellation (including, without limitation, any fees already paid to Eivan’s photographers or videographers) plus fifty percent (50%) of the total Contract amount not as a penalty but as liquidated damages for Client’s breach of Contract (the “Cancellation Fee”). Any monies Eivan’s received from Client in the form of either a deposit or a retainer, are non-refundable, and Eivan’s shall retain all payments made by Client prior to cancellation. If the monies paid by Client are insufficient to cover the amount for the services rendered by Eivan’s prior to and including the date of cancellation and the Cancellation Fee, Client shall pay any additional amount required hereunder within one week of such cancellation. Any other arrangements shall be discussed between Client and approved by Eivan’s Photo, Inc. Let it be known that all arrangements will be put in writing.
7. EXCLUSIVE PHOTOGRAPHER AND VIDEOGRAPHER
Client agrees that they have had the opportunity to critically view samples of Eivan’s work, and after such review, they have chosen to retain Eivan’s as the exclusive photographer and or videographer, if included in Client’s package, to cover the event. Furthermore, Client agrees that Evian’s photographers and videographers will be the sole professional photographers and videographers employed for the event. Family and friends of the Client and other wedding vendors shall not interfere with the photographer or videographer’s duties. Guests will be asked to refrain from taking flash photographs at certain intervals of wedding services to ensure proper exposure of images. Eivan’s will have priority over any other type of photographer or videographer, whether employed or not in connection with the event and retains exclusive control over the positioning of cameras and equipment. Such breach of this provision will constitute a reason for not completing the job without any liability to Eivan’s and the loss of all deposits paid by the Client.
8. DIGITAL NEGATIVES
All photography and video digital files remain the property of Eivan’s and are subject to federal copyright laws. No person shall reproduce, publish or exhibit photographs taken in connection with this event without the written consent of Eivan’s. Clients do not have the right to use the negatives for profit or in any commercial, advertising, or third-party publication.
9. FAILURE TO PERFORM
Due to the limited and subjective nature of the event, Eivan’s cannot be held responsible for requested photographs or video not taken or missed, lack of coverage resulting from weather conditions, or schedule complications caused by but not limited to, anyone in or at the event, or by the church or location restrictions. The photographer is not responsible for lost photo opportunities due to any kind of equipment malfunction, the lateness of the Client, or other principal parties to the event. The photographer is not responsible for lack of coverage due to weather conditions, scheduling complications due to lateness of individuals, rules and restrictions of venue, or the rendering of decorations of the location. Hereby it is acknowledged that any photo or video lists submitted to Eivan’s will be used for organizational purposes only and in no way represents photography that will be produced. Due to the nature of the event, Eivan’s promises to do its best to fulfill all requests but cannot make any guarantees that all images or video clips will be delivered.
10. INCLEMENT WEATHER CHARGE
In the event of severe weather, including but not limited to, a blizzard, severe rain storm, fire, or other unforeseen and/or natural occurrences or events Eivan’s personnel may make the decision that it’s unsafe to drive home, and hotel stay will be billed to the client.
11. LIGHTING AND VENUE RESTRICTION LIABILITY
Eivan’s photographers and videographers, (if included in Client’s package), are limited by the guidelines of the ceremony official or reception site management. Among other restrictions, Eivan’s and its third-party servicers are not responsible for lighting restrictions imposed at any of the ceremony, reception or other venues, whether known or unknown by the Client prior to the wedding day. The Client agrees to accept the technical results of their imposition on the photographer and videographer. Negotiation with the officials for alteration of guidelines is solely the Client’s responsibility. Eivan’s will offer technical recommendations only. Furthermore, the Client agrees that Eivan’s is limited by the restrictions imposed by the church, reception, hall, and any other venue and the constraints of the physical environment, which can affect the quality, and production of the photography and videography coverage. Again, Eivan’s is not responsible and shall not be held liable for any venue or environmental restrictions.
12. PHOTOGRAPHER SUBSTITUTION
In the event of the assigned Photographer’s or Videographer’s unavailability, Eivan’s retains the right to substitute another photographer or videographer to take the photographs or video. Eivan’s will exercise its best efforts to provide adequate backup means or otherwise to perform this photography and or video service.
13. UNFORESEEN CIRCUMSTANCES
If Eivan’s or its assigns, cannot perform this Contract on the event date due to a fire, casualty, strike or other civil disturbances, Acts of God, including but not limited to, illegality of the event as determined by local, state or federal government, or becomes impossible to perform, road closures, severe traffic, fire, terrorism, local epidemics or pandemics, or other causes beyond the control of the parties, or due to the photographers illness, then Eivan’s agrees to provide a non-refundable credit in the same amount of all payments to use for another date pending availability, or this credit may be transferred to a designated assignee by the Client but shall have no further liability with respect to this Contract. This limitation of liability shall also apply if photographic materials are damaged in processing, lost through camera malfunction, compact flash card malfunction, lost in the mail, or otherwise lost or damaged without the fault on the part of Eivan’s.
14. WEDDING GARMENTS
Eivan’s cannot and will not be held responsible for damage to garments during the event. Client is responsible to arrange for personal assistance for wedding garments.
15. MODEL RELEASE
In signing the Contract, the Client, individually and as agent for all members of the party and guest, hereby grants to Eivan’s all rights for display, airing, exhibition, promotion, newsletter, contests, and advertising use of all photos and video (if applicable) produced under this Contract, including the images, likenesses and voices, and, on behalf of their legal representatives, heirs and assigns, hereby release(s) Eivan’s and its legal representatives, employees and assigns from all claims and liabilities relating to use of said photos or video (and, without limitation, the images, likenesses and voices contained therein). Client waive any right to inspect or approve the photographs or video or the use to which it may be applied, including any written copy that may appear in connection therewith.
16. TRANSPORTATION, ACCOMMODATION, TOLL AND PARKING COSTS
16. (a) Client is responsible for all travel expenses incurred by Eivan’s or its affiliates or third party contractors in connection with the photography and/or videography services. Specifically, Client shall reimburse Eivan’s for the following expenses incurred or to be incurred by each photographer and/or each videographer: (1) tolls, (2) parking (for each parking fee incurred in connection with the wedding event and engagement session), (3) taxi and other transportation costs (such as Uber or Lyft), and (4) the long distance and overnight accommodation fees referred to below. Any travel costs payable by Client shall be paid to Eivan’s no later than fifteen (15) days after the date of invoice.
(b) If the wedding location is beyond Eivan’s Service Area, certain additional travel fees will be added to the amounts payable by Client under this Contract in accordance with this Section 16(b). All travel fees will be charged per shooter and Client may be subject to one or both travel fees described below depending on the wedding location.
(i) Client agrees to pay a long-distance travel charge (the “Long Distance Fee”) if the photographer(s) and/or videographer(s) needs to travel 90 miles or more round trip. The Long-Distance Fee is equal to $90.00 plus $1.50 for each additional mile in excess of 90 miles.
(ii) Client also agrees to pay a talent overnight accommodation charge (the “Accommodation Fee”) if the wedding location is 2 or more hours away from the City Center as determined by Eivan’s using mapping technology which takes into account, without limitation, traffic patterns, ferry crossing, and road conditions, as applicable. The Accommodation Fee is applied to the costs of overnight accommodations for each shooter. If the wedding location is more than 2 hours but less than 3 hours away from the City Center, Client agrees to pay an Accommodation Fee for one night for each shooter. If the wedding location is more than 3 or more hours away from the City Center, Client agrees to pay an Accommodation Fee for two nights for each shooter covering the evening before and the evening of the wedding. Except as provided in the following sentence, the Accommodation Fee is equal to $150.00 per shooter per night and is payable at the time of signing this Contract or when Eivan’s invoices the Client. If the hotel room costs (including the room rate and all applicable taxes and fees charged by the hotel) exceed the amount paid by Client at the time of signing this Contract or when Eivan’s invoices the Client, Eivan’s will invoice Client for the difference between the actual costs and the amount already paid by Client or invoiced; this amount will be due and payable by Client within 15 days from the invoice date.
(iii) These travel charges also apply for any portrait session, any Multi Day Session or any other session Eivan’s or its affiliate or contractor is shooting for Client if the mileage or travel times exceed the amounts specified above. Travel fees are subject to change.
17. VENDOR MEAL
The Client is not required to provide the photographer(s) and/or videographer(s) or any additional staff working with Eivan’s a meal. However, if no meal is offered to the photographer(s) and videographer(s) and/or staff, the photographer(s) and videographer(s) and/or staff will be allowed (1) hour to leave the event for lunch and/or dinner, the timing being at their sole discretion and with no reduction in fees. During such break, Eivan’s is not responsible for any photography and/or videography coverage missed during that time.
18. REQUESTED EVENT PLANNING DOCUMENTS
Eivan’s will provide Client with event planning documents at least eight (8) weeks before the wedding date. In most circumstances, these event planning documents will be given to the Client upon signing of the Contract. In all circumstances, if the Client is not given these documents, it is their responsibility to obtain them from Eivan’s. These documents is the Client’s opportunity to furnish Eivan’s with a list of persons, groups, or occurrences specifically desired to be photographed and/or videotaped (if applicable), and any photos or other materials requested to be included in the video production. If Client’s package includes videography services, any such materials for inclusion in the video production must be supplied to Eivan’s AT LEAST THIRTY DAYS (30) prior to the event. Client agrees that production of the video may proceed without these materials if the Client has not supplied Evian’s in a timely manner, with no reduction of fees due under this Contract. Eivan’s reserves the right to terminate this Contract if Client does not respond to requests to complete event planning documents in a timely manner. Eivan’s recommends that the Client designate an “event guide” to inform Eivan’s of important individuals for informal or candid photographs or videotaping and recommends that the Client designate a personal friend or family member to assist in identifying people or gathering people for photographs or videotaping. Eivan’s will make its best efforts to obtain the requested photographs or video but makes no guarantee that Client requests will be fulfilled.
19. EXTENDED COVERAGE CLAUSE
Eivan’s shall have the sole discretion to comply with the Client’s request for an extension of photography and/or videography coverage in the event that activities extend beyond the agreed-upon length of time. If Eivan’s agrees to extend coverage, such extended coverage overtime will be billed in half hour increments at the current rate of $100.00 per half hour per photographer and/or videographer, until the Client departs from the activities or informs Eivan’s Photography Inc. to discontinue. In the event of a discrepancy regarding the coverage of certain events opposed to the time allotted on this Contract, the Request Form that the Client filled out prior to the wedding will take precedence. Eivan’s promises to do its absolute best in capturing the requested poses and photography moments in accordance with the Request Form while still abiding to the time parameters.
20. WARRANTY OF MERCHANTABILITY
The Client grants Eivan’s full production and editorial control regarding all aspects of production. Again, Eivan’s makes no guarantee either expressed or implied regarding aesthetic qualities of the products and services offered. Eivan’s makes no guarantee concerning any effect, request, and specific pose, photographed or videotaped segments. Eivan’s warrants that all album and video products (to the extent included in Client’s package) shall be free from material defects in materials or workmanship for a period of one year, excluding normal wear and tear, cosmetic aging and damage caused by mishandling or improper storage. EXCEPT AS SET FORTH IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND GOODS, INCLUDING PHOTOGRAPHS AND VIDEO, PROVIDED HEREUNDER ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTY OF ANY KIND AND EIVAN’S PHOTOGRAPHY INC. HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
21. THIRD PARTY LIABILITY
In no event shall Eivan’s nor any of its third-party servicer’s be held liable to Client for any indirect, incidental, special or consequential damages of any kind. To the fullest extent permitted by applicable law, under all circumstances, the liability of Eivan’s and its third-party servicer’s is limited to a pro rata refund of amounts paid by Client under this Contract.
22. AUTHORIZATION TO SELL TO THIRD PARTIES
Client hereby authorize Eivan’s to sell any photos or DVDs or Blu-Ray Discs of the event to third parties, including, but not limited to, guests at the event or family members of the Client. Client shall not be responsible for payment of the price of the photos or DVDs or Blu-Ray Discs sold to third parties.
23. CREATIVE EDITING CONTROL
Eivan’s shall have sole discretion as to the recording and inclusion of any portions of the event in the Edited Master DVD or Blu-Ray Disc (if included in Client’s package), and shall have no liability or reduction in fees for the failure to record or include any portion of the event in the Edited Master DVD or Blu-Ray Disc. Images are edited at Eivan’s discretion, and delivered proofs may not include all images shot. Eivan’s reserves the creative right to edit and release only those deemed credible as professional in quality and within Eivan’s artistic standards. Every effort will be made to assure satisfaction according to Eivan’s professional standards. Eivan’s will not be held responsible for the Client or any third party’s subjective interpretations of photography or videography.
24. LEGAL RIGHTS AND LICENSES FOR DVD/BLU-RAY DISC
In the event that Client’s package includes videography services, Client warrants that they have the legal right and have acquired any required licenses to any property delivered to Eivan’s for inclusion in the Client’s DVD or Blu-Ray Disc, including photos, musical recordings, videotapes, or any other materials. The Client’s agrees to defend, indemnify and hold Eivan’s and its third party services harmless for any loss, damage, or liability for infringement of any rights arising from the use or sales of DVDs or Blu-Ray Discs the Client hire Eivan’s to produce, edit, or duplicate.
25. REQUESTED CHANGES TO DVD/BLU-RAY DISC
In the event that Client’s package includes videography services, Client may request changes to the Edited DVD or Blu-Ray Disc within fourteen (14) days after delivery by Eivan’s. Eivan’s agrees to perform one hour of complimentary editing of the Edited DVD or Blu-Ray Disc as requested by the Client. Additional editing time will be billed to the Client in half-hour increments at the current billing rate of $60 per half-hour. If no changes are requested within this fourteen (14) day period, the Client confirm that the video is in good working order, and admits that they are fully satisfied with the video, and accept the video as delivered and relieves Eivan’s from responsibility for any problems, defects, or imperfections thereafter.
26. CUSTOM PORTRAIT ALBUMS
The Client acknowledges that in order for Eivan’s to create a custom album design and to complete other products ordered by Client, it is necessary for the Client to provide Eivan’s with design instructions, feedback, and final album approval if included in purchased package. Eivan’s will make a reasonable attempt to obtain Client’s instructions, feedback and approval of the album design and other products that require Client feedback. If Client is unresponsive to Eivan’s attempts to obtain Client’s instructions, feedback and approval regarding the album or other products, Client and Eivan’s will consider Eivan’s obligations under this Contract to be complete and such album order or other product order shall be cancelled. In such an event, Eivan’s will retain all payments made by Client but will issue a credit to Client for the amount of the album or other product, which credit can be used by Client toward the purchase of a new album or other product at the then current pricing subject to availability. If Client purchases a new album or other product at that time, Eivan’s reserves the right to charge an un-archiving fee of $350.00 to Client if Client does not provide package selections within 120 days of event date.
27. PORTRAIT ALBUM CHANGES
All print and album orders are considered non-refundable custom orders. Normal pick-up of the completed album production is 16 to 24 weeks after the event expiration from website or album approval if included in the purchased package. The cost of album design stated herein (if included in the purchased package) includes fifteen (15) individual changes requested by the Client, which include but are not limited to, swapping images, adding or deleting images, arranging individual images, changing options, colors or text. The Client will be charged $50 (plus applicable tax) per change for any change beyond these fifteen (15) changes.
28. PICK-UP COMPLETED WEDDING PACKAGE/CONTRACTED PRODUCTS
Upon the end of the scheduled event viewing period on Eivan’s website, Client will receive an email from Eivan’s with instructions on how to receive the completed contracted products. Client agrees that upon receipt of their Eivan’s contracted products or items, they waive their right to bring any further complaints or issues regarding the contracted products. NO PRODUCTS WILL BE RELEASED UNLESS VALID STATE ID’s ARE PROVIDED FOR IDENTITY VERIFICATION PURPOSES OF CONTRACTING PARTIES IF REQUESTED BY EIVAN’S MANAGEMENT.
29. PACKAGE AND RE-PRINT ORDERS
All package and reprint orders must be returned to Eivan’s no later than 90 days after the wedding date, or $200.00 plus $5.00 per day charge will be applied to the orders to re-open files.
30. TIME FRAME OF RECEIPT OF FINAL PROOFS AFTER EVENT
Normal posting of the Client’s proofs on Eivan’s website is roughly 3 to 6 weeks and normal delivery of the Client’s purchased package is within sixteen (16) to twenty-four (24) weeks of the event. This delivery schedule is only approximate, and depends on various factors, including but not limited to, the Client’s provision of production materials for inclusion in the DVD or Blu-Ray Disc. Eivan’s makes no guarantee of any delivery date and reserves the right, within its sole discretion to extend the delivery schedule, as necessary for proper completion of the event proofs, DVD or Blu-Ray Disc, without any reduction in fees or other obligations of the Client hereunder.
31. PRICE LISTS
The charges in this Contract reflect Eivan’s Price Lists and are guaranteed until three months after receipt of the proofs. Receipt of proofs is defined as the time when the wedding photographs are released for viewing to the Client online at www.eivans.com. Orders placed more than 90 days after receipt of proofs will be charged the prices in effect at the time the order is placed.
32. SHIPPING AND HANDLING COSTS
Client understands that they are responsible for all shipping and handling costs. Such shipping and handling costs are determined by the items included in the Contract and subsequently ordered by the Client. The estimated shipping and handling amount will be, but is not limited to $50.00 to $100.00 and covers standard ground shipping to one address within the continental US for any of the following items ordered on page one: albums, canvas prints, frames, digital negatives, guest books, greeting cards, signature boards, event cards and DVD’s or Blu-Ray Discs. If the actual shipping and handling costs exceed the stated amount if collected at the time of the Contract execution, the Client will be billed for any excess shipping and handling amounts at the time of shipping. Any additional items ordered later will incur separate additional shipping and handling costs. Client agrees that expedited shipping requests will also incur an additional charge.
33. PHOTO SESSION
It shall be the responsibility of Client to contact Eivan’s to schedule a mutually agreeable date and time for a portrait session, at least three weeks prior to the proposed portrait date. Cancellation or rescheduling of an on-location portrait session within 5 days of the scheduled date will result in the loss of the on-location portrait session with no reduction in fees and cancellation or rescheduling of an in-studio portrait session within 48 hours of the scheduled date will result in the loss of the in-studio portrait with no reduction in fees. On-location portraits choice of site must include an alternative site to accommodate inclement weather. Inclement weather is not a legitimate reason for the cancellation of an on-location portrait. THE SESSION CANNOT BE SCHEDULED UNLESS TOTAL PACKAGE BALANCE IS PAID IN FULL. CLIENT MUST COMPLETE PRE-WEDDING SESSION QUESTIONNAIRE & PROVIDE AT LEAST 4-6 POSSIBLE DATES WITH AT LEAST 3 WEEKS NOTICE AND CANNOT BE SCHEDULED ON FRIDAY, SATURDAY OR SUNDAY. ADDITIONAL CHARGES MAY APPLY IF SESSION LOCATION IS OVER 30 MILES FROM EIVAN’S SERVICE AREA (i.e. major metropolitan city).
34. WAIVER OF RESPONSIBILITY FOR PRINTS, DIGITAL FILES, DVD/BLU-RAYS
Eivan’s shall assume no responsibility for loss or the destruction of the Digital Files, prints, CD’s/DVD’s/Blu-Ray Discs, or flash drives when they are out of Eivan’s possession. Due to the potential loss of information from CD’s/DVD’s/Blu-Ray Discs or flash drives, Eivan’s recommends the Client back up their images on another media format other than CD’s/DVD’s/Blu-Ray Discs or flash drives and recommends that the Client make multiple copies of CD’s/DVD’s/Blu-Ray Discs or flash drives every year to insure images for years to come. Eivan’s will not be held responsible for the failure of CD’s/DVD’s/Blu-Ray Discs or flash drives due to mishandling. It is the Client’s responsibility to keep several copies of any CD’s/DVD’s/Blu-Ray Discs or flash drives in more than one location, and back the images up on another format such as a hard drive.
35. BREACH OF CONTRACT
If Client breaches this Contract (including, without limitation, due to Client’s failure to make timely payment hereunder), Client shall be required to reimburse Eivan’s Photo, Inc. and its affiliates’ costs and reasonable attorneys’ fees incurred in the enforcement of this agreement. Except for those suits filed by Eivan’s Photo, Inc. to collect payments due from Client hereunder, any dispute, claim or controversy arising out of or relating to this agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate. The parties agree to select an arbitrator listed by the American Arbitration Association. If the parties cannot agree to the arbitrator, the parties’ selected arbitrators will appoint an arbitrator. The prevailing party shall be awarded all of the filing fees and related administrative costs, reasonable attorney’s fees, administrative and other costs of enforcing an arbitration award, including the costs of subpoenas, depositions, transcripts and the like, witness fees, payment of reasonable attorney’s fees, and similar costs related to collecting an arbitrator’s award, will be added to, and become a part of, the amount due pursuant to this agreement. This agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to its conflict of law’s provisions. Any award shall be final and enforceable by a court, in which case Client and Eivan’s Photo, Inc. hereby consent to the non-exclusive jurisdiction of the courts located in the Circuit Court of Will County, Illinois and the United States District Court for the Northern District of Illinois. THE MAKING OF CLAIMS OR RESOLUTION OF DISPUTES PURSUANT TO THIS CONTRACT SHALL BE IN EACH CLIENT’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. CLIENT AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT WILL BE RESOLVED INDIVIDUALLY IN THE FORUM DESIGNATED IN THIS SECTION, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; AND (2) ANY AND ALL CLAIMS, JUDGMENTS, AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE.
36. ASSIGNABILITY AND PARTIES OF INTEREST
Except as otherwise provided herein, the terms and conditions of this Contract shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Contract, express or implied will confer upon any person or entity not a party to this Contract, or the legal representatives of such person or entity, any rights, remedies, obligations, or liabilities of any nature or kind whatsoever under or by reason of this Contract, except as expressly provided in this Contract.
37. AMENDMENTS AND WAIVER
This Contract and each provision hereof may be amended, modified, supplemented or waived only by a written document specifically identifying this Contract and duly executed by each party hereto or the authorized representative of such party. Except as expressly provided in this Contract, no course of dealing between the parties hereto and no delay in exercising any right, power or remedy conferred hereby or now or hereafter existing in law, in equity, by statute or otherwise, shall operate as a waiver of, or otherwise prejudice, any such rights, power or remedy.
38. INDEMNIFICATION PROVISION
Client agrees to indemnify and hold harmless Eivan’s from any loss, damage or liability resulting from Client’s violation of the terms of this Contract or any contract or agreement involving Client and Eivan’s. Additionally, Client shall indemnify Eivan’s and hold them harmless from and against any claims by any other person or entity resulting from the performance of his services under this Contract.
39. SEVERABILITY PROVISION
In the event any provision of this Contract shall be declared invalid or unenforceable by a court of competent jurisdiction, such provision or term of such contract shall be amended and interpreted to accomplish the objects of such provision to the fullest extent possible under applicable law and all other provisions and terms shall remain valid and binding. Eivan’s waiver of any breach or failure to enforce any term of this Contract will not be deemed a waiver of any subsequent breach or right to enforce this Contract, which may thereafter occur. This Contract contains the complete and exclusive agreement of the Client and Eivan’s relative to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements relative to the subject matter hereof.
This Agreement may be executed in counterparts. The execution of a signature page of this Contract shall constitute the execution of the Contract, and the Contract shall be binding on each party upon the date of signature, if each party executes such counterpart.
41. CLAUSE HEADINGS
The clause headings in this Contract are for reference only and do not form a part of this Contract.
42. ENTIRE AGREEMENT
This Contract constitutes a single integrated contract expressing the entire agreement of the Client and Eivan’s with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof, and, except as specifically set forth herein, there are no other agreements, representations, promises or inducements, written or oral, express or implied, between the parties hereto with respect to the subject matter hereof. Note: Client bookings prior to April 24, 2020, can view previous terms listed at the following url https://www.eivans.com/terms-of-service_a/
By checking the boxes next to each Client name and by clicking the Process Payment button, each Client identified on the Process Payment agrees to accept the terms and conditions of the Contract with Eivan’s Photo, Inc.