The terms and provisions of this South Florida Fair and Palm Beach County Expositions, Inc., Performance Rider ("Rider") are incorporated into the attached Agreement or Contract ("Contract") between the South Florida Fair and Palm Beach County Expositions, Inc. (“Fair”) and from above section (“Group/School”).
1. The parties to this Rider and Contract intend the relationship between them to be one of an independent contractor and customer. No employee, agent, servant, representative or contractor of Performer shall be, or shall be deemed to be, an employee, agent, servant, representative or contractor the Fair. The manner, means and methods of providing the services contemplated in the Contract and Rider are to be under the sole direction and control of Performer, with the exception of Performer’s dates, times and the minimum or maximum length of performance. None of the benefits provided by an employer to its employees, including but not limited to any wages or compensation, workers' compensation insurance or unemployment insurance shall be available from or through Fair to Performer or the employees, agents, servants, representatives or contractors of Performer at any time. Performer represents and warrants that he/she/they/it has in place and will maintain in effect throughout the contract insurance in an amount sufficient to cover Performer and its employees, agents, servants, contractors and representatives who are performing Performer’s obligations arising out of the Contract and Rider, including but not limited to sufficient coverage for work-related injuries sustained by Performer, employees, employers' liability coverage, auto liability coverage, workers compensation coverage and general liability coverage.
2. Performer shall remain liable for the acts of its agents, servants, employees, representatives and contractors during the performance of any of Performer’s obligations arising under the Contract and Rider and during any travel to and/or from the fairgrounds. Performer hereby covenants and agrees to fully exonerate, indemnify, defend and hold harmless the South Florida Fair and Palm Beach County Expositions, Inc., its Board of Trustees, Directors, Officers and all management, staff, agents and employees each severally and separately from any and all claims, suits, losses, damages, judgments, fines, penalties, liabilities, expenses, including reasonable attorney's fees and costs, in all administrative proceedings and at the trial and appellate level, for any injury or death to persons (whether they be third persons or employees of either the Fair or Performer and any loss (through theft, fire or otherwise) of or damage to property (whether it be that of the Fair, Performer, or some third party) caused by, growing out of, or arising out of Performer’s performance, or use or attendance on the fairgrounds, including, without limitation, use by Performer’s agents, employees or third parties; exercise of any rights under the Contract or Rider; breach of any term, warranty or provision of this Contract or Rider by Performer; the sale of products; performance on the fairgrounds; or any act or omission of Performer, its employees, officers, or agents. All such liability is hereby expressly assumed by Performer. Such indemnification shall not apply to injury to persons or damage to property arising out of the Fair's gross negligence or willful misconduct. Fair cannot indemnify a Performer or Agent of Performer as a result of its entitilement to sovereign immunity. This provision shall expressly survive termination of this Contract and Rider.
3. Performer agrees to comply with all local ordinances and codes, applicable state and federal statutes and regulations, whether existing or in the future, in performing his/her/their/its obligations arising out of the Contract and Rider. Performer agrees to deduct, pay and remain solely responsible for any necessary workman's compensation insurance premiums, income taxes, required withholdings, unemployment insurance premiums, agent's fees or commissions, or union dues arising out of the performance of Performer’s obligations arising under the Contract and Rider, and Performer will defend and hold Fair harmless against any such expenses, fees, commissions, and/or alleged violation(s) of any local ordinances, codes, statutes and/or regulations, as well as against any claim(s) by any Union(s) and/or Agent(s) for benefits, fees, commissions, dues, or other payments arising out of, or resulting from the performance.
4. The Fair reserves all rights and privileges for outgoing television, radio, internet and other electronic and computer generated broadcasts originating from the fairgrounds, including Performer’s performance(s). Fair shall advertise the Performer’s performance(s), and utilize Performer’s likeness, to any extent and through any medium desired, as it deems appropriate. Performer in carrying out its rights and responsibilities hereunder shall not infringe upon any patent, copyright or trademark owned by any third party. Performer agrees to indemnify, defend and hold the Fair harmless from any claims, damages, or costs, including legal fees, which might arise from any infringement or alleged infringement. The Fair name and logo are protected trademark/service marks and may not be used without the express written consent of the Fair.
5. The venue of any legal proceeding brought in connection with the Contract and Rider, or any aspect of the relationship between the parties shall be in Palm Beach County, Florida and the Contract and Rider shall be considered to have been made and executed in Palm Beach County, Florida, and shall be interpreted, construed and enforced in accordance with the laws of Florida and no other.
6. Unless otherwise agreed by the parties in writing, Performer shall provide all necessary equipment for the performance at Performer's sole expense. Fair is not responsible for any equipment unless otherwise specifically provided for in this Agreement. Performer shall be prepared to begin the performance precisely at the date and time set forth on the attached Contract. Any required setup shall be completed by Performer in advance of said date and time. No Performer merchandise sales are permitted, unless authorized in writing by the Fair, or the subject of a separate contract between the parties.
7. If an Act of God, nature, war, riots, epidemics, strikes, an act (or order) of public authority, pandemics, on-sight mechanical difficulties (i.e., a power failure), a request by any local, state or federal agency to utilize or occupy the fairgrounds, a local, state or federal request to cancel the Event as a result of a recognized health threat, including but not limited to, COVID-19, or other legitimate causes beyond the control of the parties should render the performance contemplated by the Contract and Rider impossible, the parties shall not be liable to one another for any damages they sustain, including but not limited to non-payment of the performance fee. In such an event, the parties shall attempt to reschedule the performance for another mutually convenient date and time. If rescheduling is not possible, then the Contract and Rider shall become null and void upon either party's written notification to the other at its last known address and any monies paid by Fair shall be refunded in full, less expenses incurred by Performer. In such an event, neither party shall have any other or further obligation to the other arising out of the Contract and Rider.
8. Payment will be made by Fair, as provided in the Contract, immediately following the performance(s).
9. If any actions by Performer or Performer's employees, agents, servants, or representatives are in conflict with any policies, rules, or regulations of Fair while Performer is on Fair's property, and Performer or his/her/their/its employees, agents, servants or representatives fail or refuse to correct the same upon verbal notification by Fair, then Fair shall have the right to immediately terminate the performance and cancel the Contract and Rider with no liability whatsoever, including non-payment of the performance fee. Performer and Performer's employees, agents, servants and representatives shall not be under the influence of any intoxicating beverages, narcotics or drugs at any time while on Fair's property. Any violation of this provision will result in immediate termination of the Contract and Rider by Fair with no liability whatsoever, including nonpayment of the performance fee.
10. All terms and conditions of the Contract and Rider shall be binding upon the parties, his/her/their/its heirs, representatives and assigns and cannot be waived or modified by any oral representation or promise of any agent or other representative of the parties hereto unless the same be in writing and signed by the duly authorized agent or agents who executed the Contract and Rider. Neither party may rely on any oral representations and must look solely to the terms of Contract and Rider. The Contract and Rider constitutes the entire agreement and understanding between the parties, whether oral or in writing, as to the subject matter hereof. Any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force or effect.
11. Any damage to Fair's property or any rented equipment which results from the acts or omissions of Performer and/or his/her/their/its employees, agents, servants, representatives or contractors shall be the responsibility of Performer and payment for any such damage shall be made by Performer upon written notification of the damage by Fair, or the Fair may elect to deduct the amount of damage from the performance fee due the Performer.
12. In the event of any conflict, inconsistency or incongruity between the terms of the Contract and Rider, or between this Rider and any other Contract or Rider concerning the subject matter hereof, the terms and provisions of this Rider shall in all respects govern and control.
13. In signing the Contract and this Rider, the undersigned parties hereby represent and warrant that he/she/they are duly authorized representatives of the person or entity for which he/she/they sign and legally are entitled to enter binding contracts on his/her/their/its behalf; that the undersigned’s have read this entire document; that the undersigned’s understand the terms and provisions of this document; that the undersigned’s know this document will affect his/her/their legal rights and/or those of the person or entity they represent; and that the undersigned’s have signed this document knowingly and voluntarily.
14. Since the essence of the Contract and this Rider concern the specific individuals and the unique personalities and talents of Performer, Fair will only pay the performance fee specified in the Contract if the Performer performing is, in fact, the specific Performer agreed upon. If in the case of a group, the entire group does not perform, or if the Performer is not the Performer specified in the Contract, payment of the performance fee shall not be required unless Performer has notified Fair of the change in advance of the performance and Fair has agreed, in writing, to allow the group to perform with less than the entire group or with performers other than those contemplated when the Contract was executed. This provision is a material inducement to the Fair entering into the Contract. The Contract and Rider and any and all of their rights may not be assigned. The Performer agrees to be bound by all exclusive agreements entered into by the Fair with third parties, such as Pepsi.
15. All of the terms and provisions of this Rider and the Contract shall be enforceable irrespective of whether the Performer is being compensated, or is performing free of charge, such as in the case of a benefit performance. Time is of the essence of all of the provisions and terms of this Rider and Contract.
16. To facilitate the execution of this Rider and Contract, any number of counterparts of them may be executed and delivered. It shall not be necessary that each party's signature appear on each counterpart, but it shall be sufficient that each party's signature appear on one or more of the counterparts. Each of the counterparts shall be considered an original and all of them, together, shall constitute one and the same instrument. Any number of duplicates of the Contract or Rider may be executed and delivered, each of which shall be considered an original. If any term, covenant, or condition of this Rider or Contract or the application thereof to any person or circumstance shall be to any extent held invalid or unenforceable, the remainder of this Rider or Contract or the application of such terms, covenants, and conditions to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Rider or Contract shall be valid and enforceable to the fullest extent permitted by law.
17. Prior to bringing any lawsuit under this Rider and Contract, the parties hereto agree to submit any and all disputes to pre-suit mediation under the Florida Rules for Certified and Court-Appointed Mediators and the Florida Rules of Civil Procedures 1.700- 1.730 (and FRCP 1.750, excluding subsection (b)) together with the rules of the American Arbitration Association or the Foundation for Dispute Resolution. Accordingly, the parties agree to strictly follow said rules and abide by any agreement made as the result of mediation. Good faith compliance with this provision shall be a condition precedent to the right of any party hereto to bring a lawsuit under this Rider and Contract. This provision is a material inducement to the Fair entering into this Rider and Contract.
18. Performer warrants and represents that Performer is in compliance with Section 448.095, Florida Statutes, as may be amended, and that Performer: (1) is registered with and uses the E-Verify System (E-Verify.gov) to electronically verify the employment eligibility of all newly hired workers; and (2) has verified that all of the Performer’s subcontractors performing the duties and obligations of this Contract and Rider are registered with and use the E-Verify System to electronically verify the employment eligibility of all newly hired workers.
19. NOT WITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FAIR, OR ITS RESPECTIVE TRUSTEES, DIRECTORS, OFFICERS, OR EMPLOYEES, BE LIABLE TO PERFORMER FOR ANY INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE, LOSS OF USE OR INTERRUPTION OF BUSINESSS) ARISING OUT OF OR RELATED TO THE CONTRACT AND RIDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND PERFORMER RELEASES FAIR FROM ANY SUCH LIABILITY.