Baby View 3D Services Agreement
Baby 3D View Services Agreement
WHEREAS Service Provider has the capability and capacity to provide certain services; and
WHEREAS Customer desires to purchase such elective keepsake services and any selected
related products from Service Provider, and Service Provider is willing to provide the same
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Service Provider and Customer agree as follows:
1. Services. Service Provider shall provide to Customer the services (the “Services”) set out
in one or more statements of work. Additional Statements of Work shall be deemed issued and
accepted only if signed by an authorized representative of each Party. Service Provider shall
perform the Services in accordance with this Agreement.
2. Service Provider Obligations and Service Conditions.
Service Provider shall:
2.1 Provide the Services in a professional manner using personnel selected by Service
Provider in its discretion and in accordance with Service Provider’s procedures and
operational requirements.
(a) The Services are elective keepsake services selected for bonding, memory,
and non-medical viewing purposes only and are not medical care, prenatal care,
diagnosis, treatment, emergency services, or fetal assessment.
(b) Service Provider does not guarantee any particular image quality, fetal
pose, facial view, session length, recording quality, print quality, or other specific
result, because outcomes depend on factors outside Service Provider’s control,
including fetal position, gestational age, movement, maternal body habitus, placenta
position, and technical limitations.
2.2 Decline, pause, shorten, reschedule, repeat, or stop any session if Service Provider
determines, in its reasonable discretion, that conditions are unsuitable or that doing so is
necessary for safety, operational, technical, legal, compliance, or customer-conduct reasons.
(a) This may include circumstances in which fetal position or other conditions
do not permit a usable keepsake result.
(b) Service Provider may refuse service or end a session where reasonably
necessary for safety, legality, abuse prevention, policy enforcement, or protection of
staff or property.
2.3 Maintain complete and accurate records relating to the provision of the Services
under this Agreement as required by applicable law and Service Provider’s internal business
practices.
3. Customer Obligations and Acknowledgments.
Customer shall:
4. Fees, Payment, Refunds, Cancellations, and Custom Orders
4.3 Customer should provide as much advance notice as possible for cancellations or
rescheduling requests. Service Provider may treat repeated late cancellations, no-shows, or same-day cancellations as forfeiting the booking deposit. Rescheduling is subject to
availability and may be limited for promotional, discounted, or special bookings.
5. Non-Diagnostic Disclaimer, Limited Warranty, and Limitation of Liability.
5.1 Customer understands and agrees that Service Provider provides elective, nondiagnostic keepsake services only. No statement by Service Provider or its personnel shall
be understood as a diagnosis, medical opinion, confirmation of normal fetal development,
confirmation that a fetus is free from anomalies or complications, prenatal treatment advice,
emergency evaluation, or a substitute for care from Customer’s physician, midwife, or other
licensed healthcare provider.
(a) If Customer has any medical concern before, during, or after a session,
Customer must contact Customer’s own licensed healthcare provider or seek
appropriate medical care.
(b) Service Provider warrants only that it will perform the Services in a
professional manner consistent with its studio procedures and generally recognized
standards for similar elective keepsake services.
(c) Any 3D printed keepsake product is an artistic and commemorative item
derived from available image data and is not a medical device, diagnostic tool, or
guaranteed anatomical replica.
5.2 Service Provider’s sole and exclusive liability and Customer’s sole and exclusive
remedy for any proven breach of the limited warranty in Section 5.1 shall be, at Service
Provider’s option, re-performance of the affected Services, repair or replacement of the
affected custom Product, a studio credit, or a refund of the amount actually paid for the
specific Service or Product giving rise to the claim.
(a) Service Provider shall have a reasonable opportunity to review and, where
appropriate, cure any claimed issue.
(b) Any refund, if issued, shall not exceed the amount actually paid by
Customer for the specific Service or product at issue.
(c) The foregoing remedy shall not be available unless Customer provides
written notice of such breach within 30 days after delivery of such Service or Product
to Customer.
6. I mage, Recording, Product, and Marketing Authorization.
7. Privacy and Electronic Records.
Service Provider will use Customer’s non-public information in accordance with this
Agreement, its applicable privacy practices, and applicable law. Customer understands that
this Agreement and related intake forms, invoices, approvals, and authorizations may be
presented, accepted, and signed electronically, including on an iPad or similar device, and
that electronic signatures and records may be retained by Service Provider and treated as
originals to the fullest extent permitted by law. Customer also acknowledges that Service
Provider’s website terms, privacy policy, and related customer notices may apply to online
booking, forms, communications, payment processing, and related business operations.
8. Data Security.
8.2 Service Provider’s safeguards shall be appropriate in light of the nature of the
Services and the sensitivity of the Customer Data actually processed by Service Provider
under this Agreement. Customer acknowledges that no security measures are infallible and
that Service Provider does not warrant that its safeguards will prevent all security incidents.
8.3 Service Provider shall limit access to Customer Data to those of its employees,
contractors, and subcontractors who have a need to know such Customer Data for purposes
of performing the Services and who are bound by confidentiality obligations at least as
protective as those set forth in this Agreement.
8.4 In the event Service Provider becomes aware of confirmed unauthorized access to
or acquisition of Customer Data in Service Provider’s possession or control that materially
compromises the security or confidentiality of such Customer Data (a “Security Incident”),
Service Provider shall notify Customer without unreasonable delay, as permitted by
applicable law. Service Provider shall use commercially reasonable efforts to identify the
cause of the Security Incident and to take such steps as it deems reasonably necessary and
appropriate to contain, investigate, and mitigate the Security Incident.
8.5 Taking into account the nature of the Services and the information available to
Service Provider, Service Provider shall provide commercially reasonable cooperation and
information to Customer relating to a Security Incident to the extent reasonably necessary
for Customer to comply with applicable law. Unless otherwise required by applicable law or
expressly agreed in the applicable Statement of Work, Customer shall be responsible for
determining whether any notice to affected persons, regulators, or others is required in
connection with a Security Incident.
8.6 Service Provider may update or modify its information security practices from
time to time in its discretion, provided that Service Provider does not materially diminish the
overall level of protection for Customer Data maintained in connection with the Services.
8.7 Upon expiration or termination of this Agreement, and upon Customer’s written
request, Service Provider shall use commercially reasonable efforts to return or delete
Customer Data in its active systems, except to the extent Service Provider is required to
retain such Customer Data by applicable law or for legitimate internal business purposes,
including archival, backup, legal, or compliance purposes, in each case subject to the
confidentiality obligations set forth in this Agreement.
9. Term, Termination, and Survival.
9.1 This Agreement shall commence as of the Effective Date and shall continue until
the Services and any related Product obligations are completed, unless sooner terminated in
accordance with this Agreement.
9.2 Either Party may terminate this Agreement upon written notice to the other Party
if the other Party materially breaches this Agreement and fails to cure such breach within 30
days after receipt of written notice of such breach, unless such breach is incapable of cure.
9.3 Notwithstanding anything to the contrary herein, Service Provider may suspend
performance, withhold release of images, files, recordings, or Products, or terminate this
Agreement upon written notice if Customer fails to pay any undisputed amount when due or
materially violates studio policies, safety rules, or behavioral requirements.
9.4 The rights and obligations of the Parties set forth in this paragraph 9.4 and in
Sections 5 (Non-Diagnostic Disclaimer, Limited Warranty, and Limitation of Liability), 6
(Image, Recording, Product, and Marketing Authorization), 7 (Privacy and Electronic
Records), 8 (Data Security), 10 (Limitation of Liability), and 27 (Non-Disparagement), and
any right or obligation of the Parties in this Agreement which, by its nature, should survive
termination or expiration of this Agreement, will survive any such termination or expiration
of this Agreement.
10. Limitation of Liability.
10.1TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY
THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING EMOTIONAL DISTRESS,
LOST OPPORTUNITY, REPUTATIONAL HARM, LOSS OF USE, LOSS OF DATA, OR
SPECULATIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER
SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
SERVICE PROVIDER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE SERVICES OR PRODUCTS SHALL NOT
EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC
SERVICE OR PRODUCT GIVING RISE TO THE CLAIM. NOTHING IN THIS
AGREEMENT LIMITS LIABILITY THAT CANNOT LAWFULLY BE LIMITED.
11. Insurance. During the term of this Agreement and for a period of 1 year thereafter,
if Customer is a business entity, Customer shall, at its own expense, maintain and carry insurance
with financially sound and reputable insurers, in full force and effect that includes, but is not
limited to, commercial general liability in a sum no less than $1,000,000 with financially sound
and reputable insurers. Upon Service Provider’s request, Customer shall provide Service Provider
with a certificate of insurance from Customer’s insurer evidencing the insurance coverage
specified in this Agreement. The certificate of insurance shall name Service Provider as an
additional insured. Customer shall provide Service Provider with 30 days’ advance written notice
in the event of a cancellation or material change in Customer’s insurance policy. Except where
prohibited by law, Customer shall require its insurer to waive all rights of subrogation against
Service Provider’s insurers and Service Provider.
12. Entire Agreement. This Agreement, including and together with any related
Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and
entire agreement of the Parties with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous understandings, agreements, representations, and
warranties, both written and oral, regarding such subject matter. The parties acknowledge and
agree that if there is any conflict between the terms and conditions of this Agreement and the
terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall
supersede and control.
13. Notices. All notices, requests, consents, claims, demands, waivers, and other
communications under this Agreement (each, a “Notice”) must be in writing and addressed to the
other Party at the contact information provided by such Party in connection with this Agreement,
as updated from time to time. Unless otherwise agreed herein, Notices may be delivered by
personal delivery, nationally recognized overnight courier, certified or registered mail, or email.
Except as otherwise provided in this Agreement, a Notice is effective only on receipt by the
receiving Party.
Notice to Customer is as provided Attention: _____________
Notice to Service Provider:
Creative 3D LLC d/b/a BabyView3D Attention: General Counsel
14. Severability. If any term or provision of this Agreement is found by a court of
competent jurisdiction or an arbitrator to be invalid, illegal, or unenforceable in any jurisdiction,
such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court or
arbitrator making such determination may modify this Agreement to effect the original intent of
the Parties as closely as possible in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
15. Amendments. No amendment to or modification of or rescission, termination, or
discharge of this Agreement is effective unless it is in writing, identified as an amendment to or
rescission, termination, or discharge of this Agreement and signed by an authorized
representative of each Party.
16. Waiver. No waiver by any Party of any of the provisions of this Agreement shall
be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as
otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right,
remedy, power, or privilege arising from this Agreement shall operate or be construed as a
waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power, or privilege.
17. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of
its rights or delegate any of its obligations under this Agreement without the prior written
consent of Service Provider. Any purported assignment or delegation in violation of this
paragraph 17 shall be null and void. No assignment or delegation shall relieve the Customer of
any of its obligations under this Agreement. Service Provider may assign any of its rights or
delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of
Service Provider’s assets without Customer’s consent.
18. Successors and Assigns. This Agreement is binding on and inures to the benefit of
the Parties to this Agreement and their respective permitted successors and permitted assigns.
19. Relationship of the Parties. The relationship between the Parties is that of
independent contractors. The details of the method and manner for performance of the Services
by Service Provider shall be under its own control, Customer being interested only in the results
thereof. Service Provider shall be solely responsible for supervising, controlling, and directing
the details and manner of the completion of the Services. Nothing in this Agreement shall be
construed as creating any agency, partnership, joint venture, or other form of joint enterprise,
employment, or fiduciary relationship between the Parties, and neither Party shall have authority
to contract for or bind the other Party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this
Agreement and their respective permitted successors and assigns and nothing in this Agreement,
express or implied, confers on any other Person any legal or equitable right, benefit, or remedy
of any nature whatsoever under or by reason of this Agreement.
21. Choice of Law. This Agreement and all related documents including all exhibits
attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in
contract, tort, or statute are governed by, and construed in accordance with, the laws of the
Commonwealth of Virginia, United States of America (including its statutes of limitations),
without giving effect to the conflict of laws provisions thereof to the extent such principles or
rules would require or permit the application of the laws of any jurisdiction other than those of
the Commonwealth of Virginia.
22. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will
not commence any action, litigation, or proceeding of any kind whatsoever against the other
Party in any way arising from or relating to this Agreement, including all exhibits, schedules,
attachments, and appendices attached to this Agreement, and all contemplated transactions,
including contract, equity, tort, fraud, and statutory claims, in any forum other than the United
States District Court for the Eastern District of Virginia, or, if such court does not have subject
matter jurisdiction, the courts of the Commonwealth of Virginia sitting in Fairfax County, and
any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the
exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding
only in the United States District Court for the Eastern District of Virginia, or, if such court does
not have subject matter jurisdiction, the courts of the Commonwealth of Virginia sitting in
Fairfax County. Each Party agrees that a final judgment in any such action, litigation, or
proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
23. Dispute Resolution; Arbitration. Except for any claim for injunctive or other
equitable relief relating to a Party’s intellectual property rights, Confidential Information, or
misuse of data, any dispute, controversy, or claim arising out of or relating to this Agreement or
the breach, termination, enforcement, interpretation, or validity hereof shall be resolved by
binding arbitration administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules then in effect. Except for any claim for injunctive or other
equitable relief relating to a Party’s intellectual property rights, Confidential Information, or
misuse of data, any dispute, controversy, or claim arising out of or relating to this Agreement or
the breach, termination, enforcement, interpretation, or validity hereof shall be resolved by
binding arbitration administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules then in effect. The arbitration shall be conducted by one arbitrator
in Fairfax County, Virginia. Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. Each Party shall bear its own attorneys’ fees and costs in
connection with the arbitration, and the Parties shall share equally the arbitrator’s fees and
administrative costs, except to the extent the arbitrator awards otherwise in accordance with
applicable law or the rules of the arbitration administrator. Judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear its
own attorneys’ fees and costs in connection with the arbitration, and the Parties shall share
equally the arbitrator’s fees and administrative costs, except to the extent the arbitrator awards
otherwise in accordance with applicable law or the rules of the arbitration administrator.
24. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING
EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING
ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY
AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES
25. Interpretation. For purposes of this Agreement, (a) the words “include,”
“includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the
word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder”
refer to this Agreement as a whole; (d) unless the context otherwise requires, references herein:
(i) to Sections, Exhibits, Schedules, Attachments, and Appendices refer to the Sections of, and
Exhibits, Schedules, Attachments, and Appendices attached to, this Agreement; (ii) to an
agreement, instrument, or other document means such agreement, instrument, or other document
as amended, supplemented, and modified from time to time to the extent permitted by the
provisions thereof; and (iii) to a statute means such statute as amended from time to time and
includes any successor legislation thereto and any regulations promulgated thereunder; (e) words
importing the singular include the plural and vice versa; and (f) this Agreement shall be
construed without regard to any presumption or rule requiring construction or interpretation
against the Party drafting an instrument or causing any instrument to be drafted.
26. Counterparts. This Agreement may be executed in counterparts, each of which is
deemed an original, but all of which together are deemed to be one and the same agreement.
Notwithstanding anything to the contrary in 13, a signed copy of this Agreement delivered by
facsimile, email, or other means of electronic transmission is deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.
27. Non-Disparagement. During the Term and thereafter, Customer shall not, and
Customer shall cause its officers, directors, and employees acting on its behalf not to, make any
false, misleading, or disparaging statements, whether orally or in writing, about Service Provider
or Service Provider’s business, services, officers, directors, employees, or representatives;
provided, however, that nothing in this Section shall prohibit truthful statements required by
applicable law, regulation, legal process, or governmental request, truthful consumer reviews
posted in good faith, or statements made in good faith in connection with enforcing a Party’s
rights under this Agreement.
28. Force Majeure. No Party shall be liable or responsible to the other Party, or be
deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling
or performing any term of this Agreement (except for any obligations of the Customer to make
payments to Service Provider hereunder), when and to the extent such failure or delay is caused
by or results from acts beyond the impacted party’s (“Impacted Party”) control, including,
without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of
God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether
war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order,
law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and
(f) national or regional emergency; and (g) strikes, labor stoppages, or slowdowns, or other
industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in
obtaining supplies of adequate or suitable materials; and (i) other events beyond the control of
the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other
Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall
use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event
are minimized. The Impacted Party shall resume the performance of its obligations as soon as
reasonably practicable after the removal of the cause. In the event that the Impacted Party’s
failure or delay remains uncured for a period of 60 consecutive days following written notice
given by it under this Section 28, the other Party may thereafter terminate this Agreement upon
10 days’ written notice.