This Facility Use Agreement (this “Agreement”) is entered into by and between KINDLE Photo Studio & Event Space, a Colorado limited liability company (“Kindle”) and the "Client", whose name and address are outlined in the Client’s Booking Confirmation Email (the “Booking” or the “Booking Date”) for use of Kindle’s facility located at 511 N. Tejon Street, Suites 110 and 120, Colorado Springs, Colorado, 80903 (the “Facility”) and services in connection therewith which are specifically enumerated in this Agreement. Kindle and the Client may sometimes be collectively referred to as the “Parties” or singularly as “Party” for purposes of this Agreement.
In consideration of the foregoing and the payments and other mutual promises set out below, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Revocable License
Kindle hereby grants to the Client a limited and revocable license to use a portion or portions of the Facility for the Booking as more particularly described in the Client’s Booking Confirmation Email, subject to the terms hereof. For purposes of this Agreement, the term “Facility” shall mean the portion or portions of the Facility that may be utilized by the Client for the Booking.
Permitted Use
The Client is authorized to use the Facility for the Booking and for no other purpose. The Client may not use the Facility in any manner that would render Kindle’s insurance policies void or which may result in increased insurance premiums for Kindle. The Client is further restricted to the use of only such parts or portions of the Facility as are described in the Booking Confirmation. The Client will not be granted access to any part of portion of the Facility that is not expressly set forth in the Booking Confirmation.
Facility Use Fee
The Facility Use Fee (the “Use Fee”) includes any services provided by Kindle hereunder and all items, equipment, and/or personal property rented from Kindle (collectively, the “Kindle Equipment”) to the Client. Payment of the Use Fee shall be as follows:
Client will pay the Use Fee in full upon execution of this Agreement. If, on the Booking Date, the Client extends its Booking for any reason, Client will be charged 1.5x the hourly rate on the Client’s credit card on file. If the Client fails to pay the Use Fee or otherwise cancels the reservation for any reason, Kindle may unilaterally terminate this Agreement, revoke the license granted herein, and keep any sums paid by the Client up to the date of termination as liquidated damages. The Parties hereby agree that such amount is a fair and reasonable estimate of the total detriment and damages that Kindle would suffer in the event the Client fails to make full and timely payment of the Use Fee or cancels the Booking for any reason.
Client Cancellation & Rescheduling
If the Booking is cancelled by the Client within 24 hours or less after the mutual execution of this Agreement, the Use Fee will be fully refunded by Kindle to the Client. Cancellation by the Client within more than 24 hours after the mutual execution of this Agreement will result in forfeiture of the Use Fee (e.g. nonrefundable). Should the Client choose to reschedule the original Booking anytime up to 48 hours prior to the original Booking Date, the Use Fee will instead be applied to the new Booking, subject to availability and at Kindle’s discretion.
Kindle Cancellation & Rescheduling
In the event that Kindle is unable to make the Facility available to the Client on the Booking Date, the Client will have the option of choosing an alternate date to hold the Booking (“Alternate Booking Date”). If the Client selects an Alternate Booking Date that is reasonably acceptable to Kindle, then the Alternate Booking Date will replace the Booking Date for the purposes of this Agreement and this Agreement as modified will remain binding on both Parties. If the Client and Kindle cannot agree on an Alternate Booking Date within ten (10) days of Kindle notifying the Client of the unavailability of the Facility, then Kindle will refund to the Client the full amount of the Use Fee. In neither case will Kindle be liable for any additional costs or damages suffered by the Client arising out of a rescheduling or cancellation of the Booking pursuant to this section.
Kindle Termination and Revocation of License
Kindle shall have the right to immediately terminate this Agreement and revoke the Client’s license to use the Facility at any time prior to the Booking Date due to nonpayment of any Use Fee, the Client’s other breach of this Agreement, or if the Client intends to use the Facility for a purpose Kindle deems to be inappropriate in its sole discretion.
Credit Card Guarantee
The Client agrees to provide a valid credit number (and other customary information required to process a credit card transaction) to Kindle upon the mutual execution of this Agreement. The Client hereby authorizes Kindle to charge any fees, costs, expenses or charges incurred under this Agreement, or any other sums due hereunder, to the credit card Kindle has on file for the Client in the event that repair and/or excessive cleaning is required (in the sole discretion of Kindle) after the Booking to return the Facility to such condition as it existed prior to the Booking.
Event Capacity
The total number of guests in the Facility at one time during the Booking will not exceed the capacity detailed on the Client’s Booking Confirmation Email or as otherwise permitted by city ordinance (the “Event Capacity”). The Event Capacity includes all persons at the Booking, i.e., all guests, vendors, photographers, models, and any other persons present at the Booking. Kindle reserves the right to refuse admission to the Facility to all persons in excess of the Event Capacity.
Use and Return of the Facility
Kindle will make the Facility available to the Client on the Booking Date in conformance with the specifications set forth in the Client’s Booking Confirmation Email. The Facility will be provided as-is. Kindle makes no representations or warranties regarding the suitability of the Facility for the Client’s intended use. Kindle makes no warranties (express, implied, or statutory) as to any matter whatsoever addressed in this Agreement, including the provision of services by Kindle, the condition of the Facility, its merchantability, its capacity, its fitness for any particular purpose, or that it will meet the requirements of any laws, rules, specifications, or contracts. The Client will leave the Facility in the same or similar condition as it was delivered to the Client. Any outside materials brought into the Facility by the Client or any third party on the Client’s behalf must be removed by the end of the Booking. If applicable, the Client will return all Kindle Equipment in the same condition as it was provided to the Client.
Damages
The Client shall be responsible for any damage caused to the Facility beyond ordinary wear and tear. If the Facility is not left in the same condition as when rented to the Client, the Client’s credit card on file will be charged a $200 cleaning fee, plus any additional applicable expenses. The Client will also be responsible for all consequential damages that may result in Kindle’s inability to operate the Facility due to any damages arising out of the Client’s use of the Facility. The Client hereby authorizes Kindle to charge the Client’s credit card on file for any and all amounts due under this section.
Prohibited Items
The following are prohibited in, on or about the Facility: (i) nails, staples, glues, screws, tacks, or the like on the walls, ceilings, or floors; (ii) holes in the walls, partitions, ceiling, or floors; (iii) painting of any signs, placards, or other advertising, banners, pennants, awnings, or the like; (iv) sparklers, fireworks, or pyrotechnics of any sort; (v) hazardous, poisonous, or flammable materials; (vi) open flames, grills, or heating elements of any kind, (vii) glitter, rice, confetti, silk flower petals, bird seed, or silly string; (viii) drugs and alcohol of any kind, including recreational marijuana, unless written permission is explicitly given; and (ix) smoking of any kind, including vaporizers.
Food & Beverages
The Client may not cook on site but may bring pre-made outside food into the Facility. Any deliveries and pickups must be scheduled during the Booking and must be made at designated access points only.
Safety and Security
Any disorderly conduct during the Booking will be grounds for immediate termination of the Booking. Kindle reserves the right, but assumes no duty or obligation, to take any necessary action, including termination of the Booking, to protect the safety and well-being of the Facility, and all guests and personnel at the Booking. The Client will ensure that the Booking is operated in a safe and secure manner at all times. Children 16 years or younger must be supervised and accompanied by an adult at all times.
Refusal of Admission
Kindle reserves the right, but assumes no duty or obligation, to refuse admission to any person into the Facility or to eject any person from the Facility whom it believes, in its sole judgment, may cause disruption, disturbances, endanger life, or cause bodily injury or in any way affect the safety and security of the Facility, Kindle’s employees, staff, personnel, or the Client's guests. The Client, on behalf of itself and its guests and attendees, hereby waives any and all claims for damages against Kindle, its affiliates, officers, directors, employees, representatives, contractors, agents, successors, and assigns officers, agents, employees, and contractors (collectively, the “Kindle Parties”), resulting from the exercise of this authority.
Video Surveillance
The Client acknowledges that Kindle has installed, or may install, video surveillance in the Facility and, by signing below, expressly consents to the recording of the Booking for security purposes. The Client will not tamper with, cover, or remove any cameras located in or around the Facility.
Use of Lockbox
Lockbox access will be provided to the Client if the Client’s Booking begins or ends after the Facility’s regular business hours (e.g. the outer door to the Facility is locked) which are 8:00 a.m. - 5:00 p.m. To access the inner door to the studio outside of regular business hours, Kindle will issue a key code to the Client that is specifically assigned to the Client for the Client’s use only. After the Booking and upon leaving the Facility, the Client will return the key to the lockbox and ensure that the outer door to the Facility is securely locked.
Age of Models
The Client is solely responsible for verifying that all photographic subjects are of legal age or accompanied by a parent or legal guardian. Kindle has no responsibility to determine or verify the age of participants in the Client’s Booking activities, but reserves the right to demand proof of parental consent if models or photographic subjects are under the age of 18, and to end the Booking if Kindle becomes aware that legal age violations are occurring. The Kindle Parties are hereby expressly released from any and all claims arising out of an invalid identification or any other form of age verification.
Client Equipment Damage or Loss
Kindle is not responsible for the loss, theft, misuse, or damage of or to the personal or organizational property of the Client or the Client’s guests. Kindle is hereby authorized to remove from the Facility, and to dispose of in any manner it deems advisable, any goods, equipment, or other property which remains in the Facility after the completion of the Booking. Kindle will not be liable for any damage to or loss of any such property, and the Kindle Parties are hereby expressly released from any and all claims for any such loss or damage.
Kindle Equipment Damage or Loss
The Client is responsible for all loss, damage, or destruction of any Kindle Equipment provided by Kindle to the Client for the Booking. The Client will be responsible for the replacement cost value or repair cost of the Kindle Equipment. The Client will also compensate Kindle for the loss of use of any Kindle Equipment during the time it is being repaired or replaced. The Client is not responsible for loss or damage to Kindle Equipment caused by Kindle’s sole negligence or misconduct.
Media Capture & Media Share
If the Client opts in to media capture, Kindle reserves the right to make photographs, audio, and video recordings during the Booking at its option to use in connection with Kindle’s marketing, promotions, and portfolio. Kindle’s media capture may include “behind the scenes” content unless the Client or any of the Client’s guests expressly object to the same. All media capture by Kindle will be subject to Kindle’s collection of proper rights and releases from those present at the Booking. Kindle will properly credit the Client in connection with any media sharing. The Client represents and warrants that the Client has all necessary rights from those appearing in the photos and recordings, owns all rights in and to the photos and recordings, and Kindle’s use of said photos and recordings will not violate any third party’s rights.
On-Site Contact
The Client must retain and appoint an on-site contact for the Booking. The Client’s on-site contact must be: (a) specified on the Client’s Booking Confirmation Email, (b) on-site at the Facility throughout the Booking and, (c) responsible for Booking setup, coordination, management, tear down, and cleanup in accordance with Kindle’s check in / check out sheet, and in support of Kindle personnel.
Independent Service Providers
The Client hereby agrees to indemnify, defend and hold harmless the Kindle Parties from any damages, actions, liabilities, claims, costs, and expenses (including reasonable attorneys’ fees) related to any damage or injury (including death) to any person or the Facility caused by any independent service provider hired or employed by the Client to provide services for the Booking, including any acts or omissions on the part of the Client, its officers, directors, employees, independent contractors, or agents (the “Client Parties”).
Control of Facility – Not a Lease
This Agreement is not a lease between the Parties. Nothing in this Agreement will be construed to entitle the Client to any right of possession or control of the Facility. Kindle reserves the right to possess and manage the entire Facility and to enforce all necessary rules for the management of the Facility. Kindle will have the right to enter the Facility grounds at any time for any reason. A representative of Kindle may be present at the Facility throughout the Booking.
Ingress and Egress
All portions of the entrances, passages, vestibules, halls, and all ways of access to public utilities on the Facility grounds will be kept unobstructed by the Client and will not be used for any purpose other than ingress or egress to, from, and within the Facility.
Indemnification
In addition to (and not in lieu of) any indemnifications or releases from liability as otherwise set forth in this Agreement, the Client Parties agree to indemnify, defend and hold harmless the Kindle Parties from and against any damages, actions, liabilities, claims, costs, and expenses (including reasonable attorneys’ fees) related to the Client’s actions or inactions under this Agreement and/or the Client’s use of the Facility, including any acts or omissions on the part of the Client Parties. The Client will immediately notify Kindle of any instance giving rise to the foregoing indemnification including damage or injury of which it has knowledge in, to, or near the Facility, regardless of the cause of such damage or injury.
Compliance with Laws, Policies, and Procedures
The Client will comply with all applicable city, state, and federal laws, and all rules and policies set forth by Kindle as they pertain to the Facility. The Client will not use the Facility or any part thereof for any unlawful or immoral purpose or in any manner so as to injure person or property in, on, or near the Facility. The Client will obtain and maintain all necessary permits, licenses, and other forms of authorization necessary to use the Facility as permitted hereunder.
Representations
Each Party represents and warrants that it has full and complete authority to enter into, execute, and perform this Agreement. Each individual signing on behalf of an entity represents and warrants that he/she has full and complete authority to enter into and execute this Agreement on behalf of that entity. Each Party acknowledges that it has read and understands all the provisions of this Agreement, and that such provisions are reasonable and enforceable.
Email List Subscription
Client agrees to be added to Kindle's email list, from which they can unsubscribe at any point.
Monthly Memberships
By signing up for a monthly membership, Client agrees to pay the allotted amount monthly for 6 months, at which point they can renew their membership for another 6 months to continue receiving the discounted hourly rate or cancel.
Time to Bring Action
No action brought against Kindle by the Client, regardless of the theory of recovery, may be brought unless the action is commenced within ninety (90) days after the occurrence causing the loss or damage.
Additional Terms
This Agreement and the Booking Confirmation constitute the entire agreement between the Parties regarding their subject matter, and supersede any prior understanding or representation, oral or written, regarding said subject matter. This Agreement may only be modified in a writing signed by both parties. The Client may not assign or transfer its rights or obligations under this Agreement without prior written consent of Kindle. If any part of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, such provision will be limited so as to be valid and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by the laws of the State of Colorado and the Parties hereby submit to the exclusive jurisdiction of the courts located in Colorado Springs, Colorado. In the event of any dispute hereunder, Kindle may recover its reasonable attorneys’ fees and costs. Notwithstanding which Party drafted this Agreement, its interpretation will not be construed against either Party. This Agreement may be executed in counterparts and digital copies, each of which will be an original and all of which will constitute a single instrument. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
IN WITNESS WHEREOF, the Parties have executed this Facility Use Agreement on the date set forth in the booking agreement.
