Additional Conditions of the Contract
a. Preferred Speakers. It is understood that Preferred Speakers is acting as the Talent’s booking agent only. As the booking agent, Preferred Speakers has the authority to bind the Talent to terms of this contract. There is no general principal/agent relationship that exists between Preferred Speakers and the Talent. Neither Preferred Speakers nor the Talent have the authority, either expressed or implied, to bind the other to any agreement not signed by the party to be bound except for this contract. Neither Preferred Speakers nor the Talent is responsible for act or omission on the part of the other.
b. Talent. The Talent is an independent contractor and is not deemed an employee of either the client or Preferred Speakers. As an independent contractor, the Talent shall have the exclusive control over the means, method and details of fulfilling the services outlined in this contract.
c. Client. The client is not the agent or employee of either Preferred Speakers or the Talent and has no other authority, expressed or implied, to speak for, or bind either Preferred Speakers or the Talent except as expressly set out in the agreement.
2. NON-ASSIGNABILITY. It is agreed that this is a personal service contract and that the terms of this contract are not assignable in whole or in part by any party without the written agreement of the others.
3. TAXES, FEES AND VISAS. It is understood that the Talent executes this agreement as an independent contractor and assumes all responsibility for federal income tax, social security and Medicare tax, state income tax, public liability and worker’s compensation insurance. It is understood that Preferred Speakers may be required to withhold state and local income taxes in certain U.S. jurisdictions and foreign income taxes in certain foreign countries. These taxes will be withheld from the fees due the Talent and remitted directly to the jurisdiction by Preferred Speakers on the Talent’s behalf. In the event that there are any sales taxes, admission taxes, user fees or other charges, taxes or fees of any kind levied by the jurisdiction where the engagement is to take place, the client shall be wholly responsible for all such taxes and expenses in addition to any other payment due under the terms of this agreement. Client will advise Talent if a Travel Visa is required for entry into venue country.
4. PAYMENT AND TERMS. The payment terms as set out in this contract must be complied with strictly by the Client. The timing of payments is of the essence to this contract and if not received by the due date shall constitute a material breach by the Client of the terms of the contract. The acceptance of payment after the due date by Preferred Speakers shall not be construed to be a waiver of this breach. Client agrees to compensate Preferred Speakers for the costs of any collection procedure which may result from failure to live up to the financial terms of this agreement, including but not limited to, legal, court and bank fees associated with returned checks.
5. BREACHES. In the event the Client fails to provide any of the items herein stated or fails to make payments as provided herein in a timely manner or fails to proceed with the engagement or breaches any of the other conditions set forth in this contract, the Talent shall have no obligation to perform under this agreement and Preferred Speakers may immediately enforce any and all remedies available to it under law.
a. This Contract removes the Talent from the marketplace, therefore any cancellation of this Contract by the Client, the Client agrees to pay Preferred Speakers the entire honorarium and shall be due immediately to Preferred Speakers. In the event of such cancellation, Preferred Speakers, upon receipt of the payment, shall pay the Talent the honorarium minus the amount of the full commission.
b. For purposes of clarity, (i) a delay in payment, and the failure to cure such untimely payment within five (5) business days of receipt of notice thereof, provided such payment shall in no event be received by Preferred Speakers within thirty (30) business days before the scheduled date of the Engagement, (ii) a significant change to the Venue, (iii) cancellation or (iv) a breach of the intellectual property or right of publicity terms under this Agreement shall be considered a material breach of this Agreement.
c. If the Client fails to pay any sums due within five (5) days from the date such sums are due and owing, the balance will accrue interest at the rate of 1 % per month. In the event that if becomes necessary to involve the services of an attorney or collection agent, the Client agrees to pay all costs of collection including reasonable attorneys’ fees and all the costs incurred in any litigation instituted to recover amounts due under this Agreement.
6. CANCELLATION. In the event of cancellation of this agreement at any time by the Talent due to illness, unforeseen emergency, failure of transportation, or overriding professional responsibility, Preferred Speakers and the Talent will have no liability for expenses or losses incurred by the Client. Preferred Speakers will use best efforts to provide a comparable Talent that is acceptable to the Client. Preferred Speakers agrees to immediately refund to the Client any deposits received from the Client minus Preferred Speakers commission, in the event the Talent cancels the contract and if Preferred Speakers cannot provide a comparable Talent that is acceptable to the Client.
a. In the event the Talent is unavoidably delayed, but arrives within a reasonable time and presents his/her program in full as directed by the Client, the engagement will be considered to have been completed as agreed. All fees and other charges shall be due in full unless otherwise agreed to, in writing, by Preferred Speakers or the Talent.
7. FORCE MAJEURE/EMERGENCIES/CANCELLATION CLAUSE. Notwithstanding any other provision of this Agreement, in the event that the performance of any obligation under this Agreement by either Party is prevented due to acts of God, exchange controls, export or import controls, or any other government restriction, wars, hostilities, blockades, civil disturbances, revolutions, strikes, terrorist attacks, lockouts, or any other cause beyond the reasonable control of a Party, such Party shall not be responsible to the other Parties for failure of delay in performance of its obligations under this Agreement. Each Party shall promptly notify the other Parties of such force majeure condition. The terms of this Clause shall not exempt, but merely suspend, any Party from its duty to perform the obligations under this Agreement until as soon as practicable after a force majeure condition ceases to exist.
8. THE ENGAGEMENT. Client agrees to provide a well-heated, lit and proper place for the program, in good condition, together with all necessary stage accessories and properties including microphones and amplification system in proper working condition. Client agrees to limit the audience to no more than the legal number permitted at the place of engagement. NO ADDITIONAL APPEARANCES OR ACTIVITIES SHALL BE PLANNED BY THE CLIENT NOR EXPECTED OF THE TALENT UNLESS EXPRESSLY CONTAINED AS A PART OF THE TERMS OF THIS AGREEMENT. THE FEE LISTED IS UNDERSTOOD TO BE for the speaking/performing engagement only and any additional activities must be negotiated independently with Preferred Speakers and set forth in writing. Any material change in the nature of the engagement including the location, the size of the audience, the purpose or the agenda shall constitute a breach of this agreement unless agreed to in writing by the parties hereto.
9. USE OF TALENT’S NAME OR LIKENESS FOR COMMERCIAL PURPOSES: Talent’s name or pre-approved likeness may not be used as an endorsement of any product or service, or in connection with any commercial activity without the Talent’s prior written consent.
10. EXPENSES. Unless otherwise agreed and expressed on the front of this contract under “fee” or “special instructions”, Client shall be responsible for any and all reasonable expenses in addition to any other payment. Expenses will include coach class air fare and other normal transportation charges and expenditures, local lodging and meals, ground transportation, and any other reasonable expenses made necessary by the Talents trip to, presence in, or trip from the city in which the program is presented.
11. FURTHER ASSURANCES. In the event Preferred Speakers, after entering into this agreement, receives information which raises concerns about the Client’s ability to perform all of the terms and conditions of this agreement including timely payment or, that the program as planned by the Client may not be acceptable or in keeping with the Talent’s public image or personal beliefs, the Client may be requested to provide further assurances. The further assurance may include but are not limited to, advance payment, personal guaranties or other security arrangements, and adjustment of the agenda.
12. ENTIRE AGREEMENT. This instrument may be executed in one or more counterparts, each of which will be deemed an original, but all of which, when taken together, will constitute one and the same instrument. This instrument sets forth the entire agreement between Preferred Speakers, the Client and the Talent. It shall not become effective until both issued copies of the contract are accepted and executed by both the Client and the Talent. This agreement may not be changed, modified, waived or discharged in whole or in part except by an instrument in writing signed by the parties hereto.
13. RECORDING PROHIBITED. It is agreed that the Engagement, including without limitation the Talent’s address, may not be recorded by any means, including without limitation, on audio tape, video tape or film, nor may it be broadcast or streamed on the Internet or via live streaming applications including but not limited to Periscope, Facebook Live, or Instagram Live, in whole or in part, without the prior written permission of Preferred Speakers and talent.
14. CONFIDENTIALITY. It is agreed that the terms of this contract including the compensation of the Talent are confidential and a breach, negligent or intentional of this confidentiality, shall be deemed a breach of this contract for which the breaching party may be held liable.
15. AUTHORIZATION. The representative of the Client in signing this agreement warrants that she or he signs as a duly authorized representative of the client.
16. LIMITATION OF LIABILITY. In no event shall either party be liable to the other for indirect, incidental, consequential, special, or exemplary damages such as, but not limited to, loss of revenue or anticipated profits or lost business, incurred by a party whether in an action in contract or tort even if the other party has been advised of the possibility of such damages. Except for the payment obligations of client under this Agreement, and the indemnification obligations of the parties, and any damages arising from one party’s misappropriation of the other’s intellectual property or confidential information, each Parties’ aggregate liability is limited to the amounts paid or payable by Client hereunder.
17. CONSENT TO JURISDICTION AND GOVERNING LAW. It is understood and agreed that this contract is entered in to, and accepted in the City of Minneapolis, Minnesota and that the laws of the state of Minnesota shall govern the terms of this contract.
18.DISPUTE RESOLUTION. In the event of a dispute arising from or relating to this Agreement, each Party shall appoint a senior management representative to negotiate a resolution. If such efforts are not successful within ninety (90) days or as otherwise agreed by the Parties, the Parties shall submit any dispute arising from or related to this Agreement to nonbinding mediation in a neutral location mutually agreeable to the Parties. If such mediation is not successful, then the Parties shall submit the dispute to arbitration by a single arbitrator in accordance with the Rules for Commercial Arbitration of the American Arbitration Association in a neutral location mutually agreeable to the Parties.
19. INDEMNITY AND HOLD HARMLESS.
Each party agrees to hold the others harmless from any and all liability, suits, claims, losses, costs and expenses arising out of their respective illegal acts or gross negligence or breach of this agreement.
20. SEPARABILITY. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
21. INTERPRETATION. This Agreement has been entered into after review and negotiation of its terms by the Parties hereto, who have both had the opportunity to be represented by counsel. The Agreement shall be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either Party. No ambiguity or omission shall be construed or resolved against either Party on grounds that this Agreement or any provision thereof was drafted or proposed by such Party.
22. HEADINGS. The Section headings provided herein are for convenience only and shall have no force or effect upon the construction or interpretation of any provision hereof.
23. SURVIVAL. The following sections of this Agreement (including their respective subparts) shall continue in full force and effect notwithstanding any termination or expiration hereof: 2, 3, 5, 14, 15, 16, 17, 18, 19, 20,21, 22, 24
24. ENTIRE AGREEMENT. This Agreement may be executed in one or more counterparts each of which will be deemed an original but all of which when taken together will constitute one and the same instrument. This Agreement sets forth the entire understanding between the Parties; it shall become effective when a fully executed original is received by Preferred Speakers. This Agreement may not be altered, changed, modified or waived in whole or part except by another agreement in writing signed by both Parties. An executed facsimile copy, email, or photocopy of this Agreement shall be deemed an original.