THIS SERVICES AGREEMENT (the "Agreement") is made and entered into by and between Carbone Entertainment, Inc. ("Carbone"), a Maryland corporation having its principal place of business at 12346 Sandy Point Court, Silver Spring, MD 20904, and the customer submitting this web form (the "Customer").
WHEREAS, Carbone is an event entertainment agency that specializes in providing customers with artists, performers, and activities.
WHEREAS, Customer intends to hold the event described in this web form (the "Event");
WHEREAS, with regard to the Event, Customer desires to engage Carbone to perform the services described in this web form (the "Services") and to do so pursuant to the terms set forth in this web form;
WHEREAS, Carbone desires to provide Customer with the Services on the terms set forth in this web form; and
WHEREAS, the Parties agree to such engagement, pursuant to the terms and conditions contained herein.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Services. Carbone shall perform the Services on the date and in accordance with the time frames finalized with Customer post booking, which is fully incorporated by reference herein.
2. Cooperation. The Parties agree to cooperate in good faith to achieve satisfactory completion of the Services in a timely and professional manner.
a. Prepayment. Customer shall provide Carbone with a non-refundable prepayment.
b. Rescheduling. Unless (i) Customer has provided Carbone with at least fourteen (14) days' notice of a need to reschedule the Event, and (ii) the rescheduled Event is to occur within seven (7) days of the original date, a rescheduling fee in the amount of fifty percent (50.0%) of the Compensation will be immediately due and payable to Carbone.
c. Method of Payment. Customer agrees to remit each payment by credit card (Visa, MasterCard, American Express, or Discover).
4. Independent Contractor Relationship. Carbone is an independent contractor, and nothing in this Agreement shall render Carbone or any of its agents, employees or subcontractors an employee, partner, agent, or joint venturer of/with Customer for any purpose. Neither Party is authorized to act as agent or bind the other Party except as expressly stated in this Agreement.
5. Method of Performing Services; Results. In accordance with Customer's objectives, Carbone will determine in its sole discretion the method, details and means of performing the Services. Customer will have no right to, and shall not, control the manner or determine the method of performing Carbone's Services. Carbone shall provide the Services to the reasonable satisfaction of Customer.
6. Subcontractors; Non-Solicitation. Carbone has the right to hire and/or use subcontractors and/or employees in the performance of the Services and to charge Customer for such persons' time in accordance with the Summary Sheet. For a period of eighteen (18) months of full performance of the Services, Customer shall not directly or indirectly, without Carbone's prior written consent, (i) enter into any negotiations or transactions with any person, entity or affiliate, or (ii) solicit, hire or influence, any subcontractor, employee or agent, where any such contact was disclosed, introduced or otherwise revealed to Customer by Carbone.
7. Nonexclusive Services. Carbone may, during the term of this Agreement, render services on its own account or for any other person or entity as Carbone, in Carbone's sole discretion, sees fit. Customer and Carbone each agree that there is no exclusivity in the arrangements contemplated hereunder.
a. For purposes of this Agreement, "Confidential Information" means information concerning a Party or a third party that is disclosed to another Party and generally not known by the public at large, including, but not limited to information concerning its business, financial condition, operations, marketing and public relations strategies, systems of operations, employee or contractor information, techniques, or trade secrets. Confidential Information does not include (i) information that is in the public domain, (ii) information that becomes public knowledge through no fault of the receiving Party or any wrongful disclosure by others, (iii) information of which a Party already was aware prior to disclosure by the other Party, which fact can be shown by reasonable demonstrable evidence; or (iv) the fact that Carbone is providing the Services to Customer.
b. In connection with the engagement contemplated in this Agreement, one Party may disclose Confidential Information (hereinafter defined) to another Party, which the receiving Party agrees it will not disclose or reveal to any other person or entity, except that (1) Carbone may do so, in its reasonable discretion, where necessary for purposes of rendering the Services; and (2) a Party may do so as required by law, but only to the extent so required.
9. LIMITATION OF LIABILITY. CARBONE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS HOWSOEVER ARISING. IN NO EVENT SHALL CARBONE'S MAXIMUM LIABILITY HEREUNDER EXCEED THE AMOUNT ACTUALLY PAID TO CARBONE UNDER THIS AGREEMENT. THIS WAIVER INCLUDES BUT IS NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF INCOME, LOSS OF REPUTATION, UNREALIZED SAVINGS OR DIMUNITION OF PROPERTY VALUE. THE LIMITATION SET FORTH HEREIN IS FOR ANY AND ALL MATTERS FOR WHICH CARBONE MAY OTHERWISE HAVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER THE CLAIM ARISES IN CONTRACT, TORT, STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT AND BREACH OF WARRANTY ON THE PART OF CARBONE OR ANY SUBCONTRACTOR, EMPLOYEE OR OTHER AGENT.
10. Representations and Warranties.
a. Compliance with Laws. Customer hereby warrants and represents that he/she/it is in material compliance with all applicable laws, statutes, rules, regulations and ordinances relating to the Services and will remain so throughout its engagement of Carbone.
b. Conflicts of Interest. Each Party represents to the other Party that it is free to enter into this Agreement and that this engagement does not violate the terms of any agreement between it and any third party. Each Party shall defend, indemnify and hold the other Party and its successors, permitted assigns and licensees harmless from any and all claims, actions and proceedings, and the resulting losses, damages, costs and expenses (including reasonable attorney's fees) arising from any claim, action or proceeding based upon or in any way related to such Party's breach of any representation, warranty or covenant contained in this subsection.
c. DISCLAIMER OF WARRANTIES. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.
a. Force Majeure. Carbone shall not be liable for delay or failure in performance of the Services if such delay or failure is caused by conditions beyond its reasonable control. Carbone shall notify Customer of the occurrence of such an event as soon as reasonably practicable.
b. Marketing; Publicity. Unless and until Customer notifies Carbone in writing to the contrary, Customer hereby consents to Carbone's use of Customer's name in any advertising or promotional literature or website, and Carbone may advertise or refer publicly to the retention of Carbone for the Services. In addition, Customer hereby consents to Carbone's use, for advertising or promotional purposes, of photographs, videos, and other images that are both (i) created by or for Carbone, and (ii) relating to the Services.
c. Intellectual Property. The provision of any information, data, content, intellectual property or other asset to the other Party under this Agreement shall not affect the ownership of such information, data, content, intellectual property, know-how, work product or other asset. Each Party acknowledges and agrees that any materials used and/or provided by another Party in the course of rendering Services shall not be used by the other Party, other than in the provision of the Services, without such Party's specific written consent.
d. Assignment. Neither Party may assign any of his/her/its rights under this Agreement, without the prior written consent of the other Party, except that Carbone may freely assign this Agreement in its entirety (or any portion of it) to an affiliate.
e. Successors and Assigns; No Third Party Beneficiary Rights. All of the provisions of this Agreement shall be binding upon and inure only to the benefit of the Parties and their respective heirs, if any, permitted successors, and permitted assigns. No provision of this Agreement shall in any way inure to the benefit of any third party (including the public at large) so as to render any such person a third party beneficiary of this Agreement or any provision hereof, or otherwise give rise to any cause of action in any person not a Party.
f. Indemnification. Customer shall defend, indemnify, and hold Carbone and its officers, employees, agents, representatives, affiliates, successors, assigns and licensees harmless from any and all claims, actions, and proceedings, and the resulting losses, damages, costs and expenses (including reasonable attorneys' fees) arising from any claim, action or proceeding based upon or in any way related to the negligence, intentionally tortious conduct, or breach of this Agreement by Customer or any of Customer's employees, independent contractors, agents, or guests, as the case may be, including but not limited to conduct that causes physical damage to equipment/belongings of Customer's subcontractors.
g. Governing Law; Venue. The construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to conflicts of laws principles. Except as otherwise provided in this Agreement, any dispute arising from or related to this Agreement shall, to the extent subject matter jurisdiction otherwise exists, be resolved in a Maryland state court located in Montgomery County or in the United States District Court for the District of Maryland, Southern Division. Accordingly, with respect to any such court action, Contractor (i) submits to the personal jurisdiction of such courts; (ii) consents to service of process outside the State Maryland, if applicable; and (iii) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.
h. Disputes. In the event of any dispute, other than a dispute for nonpayment, the Parties agree to endeavor to resolve any such matter through good faith discussions for a period of at least fifteen (15) days prior to filing a lawsuit.
i. Waiver. Waiver by one Party of breach or default of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default.
j. Notices. All notices and consents must be in writing and will be deemed effective when received by (i) registered mail; (ii) certified mail, return receipt requested; (iii) overnight mail; (iv) courier; (v) email; or (vi) facsimile. Mail and delivery shall go to the mailing addresses listed on the Summary Sheet, and emails/facsimiles shall go to the addresses/numbers listed on the Summary Sheet. Notwithstanding the foregoing, either Party may change the address/email/fax number to which notices to him/her/it are to be sent by providing written notice to the other Party as provided in this subsection.
k. Modification or Amendment. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the Parties.
l. Entire Understanding. This Agreement, including the fully incorporated the Summary Sheet, constitutes the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations are hereby superseded, terminated and canceled in their entirety and are of no further force and effect.
m. Unenforceability of Provisions. If any provision of this Agreement, or any portion thereof, is held to be illegal, invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect. Furthermore, if the scope of any provision of this Agreement is determined to be too broad in any respect whatsoever to permit enforcement to its maximum extent, then such provision shall be enforced to the maximum extent permitted by law.
n. Survival. The Parties acknowledge and agree that Sections 4-11 shall survive this Agreement regardless of the reason, basis or circumstances of the termination of this Agreement.
o. Section Headings. Section and subsection headings are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
p. Executed Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, and all counterparts shall be considered together as one agreement. The Parties agree that electronic or digital signatures submitted via Carbone's website shall be as effective as if originals.