Hero Meetings, LLC Professional Engagement Agreement

This Professional Engagement Agreement (the “Agreement”) Effective as of December 1, 2019, is entered into by and between Hero Meetings, LLC, a California limited liability company (“Company”) and the Hero , in connection with your proposed engagement with Company and its experiential services offered by and through its website, heromeetings.com (the “Service”) (Company and Hero shall each be referred to individually as a “Party” and collectively, the “Parties”). This Agreement sets forth the Parties’ rights and obligations as they relate to each other.

BACKGROUND

A. WHEREAS, the mission of Company and the Service is to deepen the relationship experience between fans and their heroes by facilitating curated activities (each, an “Experience”) between the Company’s customers (the “Fans”), and select celebrities such as the Hero for a stated fee (“Experience Fee”); and

B. WHEREAS, the Company desires to engage Hero on a non-exclusive, independent contractor basis, for the purpose of featuring the Hero’s likeness on the Service’s database and securing Hero’s services in curating and participating in certain select Experiences in exchange for the Experience Fee.

NOW THEREFORE, in mutual consideration of the foregoing, and the mutual covenants and conditions contained herein, the Parties hereby agree as follow:

  1. Engagement; SOW’s. Subject to the terms and conditions of this Agreement, Company hereby engages Hero to provide services as a featured participant in one or more Experiences or in connection with the Service, with the details of each such engagement to be more specifically set forth in one or more Statement of Work(s) (“SOW”).  Each SOW shall be made available for Hero to review and negotiate the specific terms therein via Hero’s personal account on the HeroMeetings.com website. With respect to any Experience, each SOW shall include substantially the following details:
  1. A detailed description of the Experience or other engagement with the Service in which the Hero agrees to participate;
  2. The dates upon which the Hero is available to participate in the Experience;
  3. The total fee to be paid to Hero for the Experience;
  4. The Experience implementation plan, including, without limitation, any relevant timetables, restrictions, security, necessary accommodations, required tools or other materials needed for completion of performance, and if any filming, photography or other documentation may be permitted during the Experience;
  5. The name and primary contact information for any Fan(s) to be participating in the Experience; and 
  6. Any other terms and conditions agreed upon by the parties in connection with the applicable services to be performed in the relevant Experience.

In order to accept the terms of a respective SOW, the Hero must “agree” electronically in the manner provided on the website. Once a Hero has agreed to the terms of such SOW, it shall become a binding contract and incorporated herein by reference. The parties acknowledge and agree that an SOW does not become binding unless and until such SOW has been agreed upon by the Hero and Company has provided Hero with a Notice of Engagement. Once a SOW has been confirmed, any further changes must be mutually agreed upon in writing and any changes thereto may require additional considerations, including, without limitation, variations to the timing for performance, or stated fees arising from the change.

    1. Background and Security Checks.   Prior to the commencement of any Experience, Company will engage an online professional employment background check service — such as Goodhire, Truthfinder or Instant Checkmate, as designated by Company in its sole discretion — to pre-screen any Fan for their employment and criminal history. Additionally, Company may offer the Hero optional security accompaniment, or other such similar services, the terms of which, including any associated fees, shall be mutually agreed upon and specified in the applicable SOW. 
    1. Obligations to Commence. The Parties understand that the commencement of any Experience designated in a given SOW is conditioned upon Company actually reaching an agreement with a Fan through the Service.  Hero further understands that Company will have no obligation to actually engage Hero for any Experience described in a SOW, provided however that if Company does decide to commence with the engagement stated in such SOW, then Company will be responsible for the fulfillment of its obligations as stated therein, subject to suspension, delay or otherwise due to a Force Majeure Event (as defined below) or in accordance with Company’s grounds for Termination as specified herein. Notwithstanding the foregoing, Hero agrees and acknowledges that once Company has engaged Hero for commencement of an Experience pursuant to a given SOW, Hero’s performance in connection therewith may only be suspended or terminated with no less than fourteen (14) days written notice prior to the agreed upon commencement date of such Experience.  Subject only to nonperformance due to a Force Majeure Event (as described below), Hero shall be liable for any actual costs or other damages incurred by Company for Hero’s nonperformance if the required timely notice has not been provided.
  1. Use of Image and Likeness. Hero grants Company and its affiliates the right to use, publish, display, perform, transmit, exhibit, and reproduce Hero’s name, approved likeness, approved photographs, and approved biographical information (collectively, “Likeness”), in whole or in part, individually or in conjunction with other person(s) or material, on the Service and for advertising, publicity, promotion, packaging, trade, posters, or other promotion including sales and endorsements of the Service. Additionally, Hero grants Company and its affiliates the right to use his/her Likeness after termination of this Agreement for historical purposes, so long as such use does not imply a then current endorsement by Hero of Company or the Service.
  1. Term. The term of this Agreement shall commence on the Effective Date, and shall continue for a period of one (1) year (the “Term”) unless sooner terminated as provided herein.  In the event any SOW extends past the Term, the Parties agree that the performance of any services or obligations specified in such SOW will be complete in accordance therewith.
  1. Termination. Company may terminate or suspend this Agreement or refuse Hero’s performance of an SOW if, in the sole and exclusive judgment of the Company, Hero: (i) fails to fulfill his/her obligations under this Agreement; (ii) is unable to perform the obligations specified in any SOW for a period of six (6) months due to illness or injury or any other condition; (iii) disparages Company or the Service by his/her words or conduct; (iv) is involved with a scandal that significantly impairs the use of his/her Likeness as contemplated hereunder, or otherwise causes injury to his/her reputation and/or the reputation of Company or the Service; (v) is convicted of any criminal act in violation of state or federal laws, including, but not limited to, the possession, use, distribution or sale of illegal substances; (vi) breaches or is in default of any of the provisions of this Agreement; (vii) engages in any act of moral turpitude; (viii) fails to provide to Company proof of health insurance upon request; or (xii) fails to provide to Company with 14 days prior notice of Hero’s unavailability to perform the services or obligations required in a SOW.
  1. Representations and Warranties.
    1. Hero’s Reps and Warranties. Hero specifically represents and warrants that (i) Hero has the right to enter into this Agreement and grant the rights granted herein, and this Agreement is not and will not be in conflict with any existing or future agreement or understanding to which the Hero is a party or by which Hero is bound; (ii) Hero has all the requisite resources, skill experience and qualifications to perform the services and/or obligations set forth in this Agreement and in any SOW, and such shall be done in a manner consistent with the specifications contained therein, in a professional and workmanlike manner in accordance with generally recognized industry standards for such services, and in compliance with applicable law; and (iii) Hero has or will obtain, and will maintain throughout the time for performance in any SOW, the requisite insurance coverage or maintains sufficient financial resources to cover any damages suffered by Hero, and for damages in which Company is entitled to indemnification, as further provided in Section 7 below regarding insurance. 
    1. Company’s Reps and Warranties. Company specifically represents and warrants that (i) to the best of Company’s knowledge, neither the execution and delivery of this Agreement by Company, the compliance by Company with the terms and conditions hereof, including any applicable SOW, nor the transactions contemplated hereby will (a) conflict with any of the terms, conditions, or provisions of any other agreement, (b) violate any provision of, or require any consent, authorization, or approval under, any law or administrative regulation or any judicial, administrative or arbitration order, award, judgment, writ, injunction or decree applicable to Company, (c) otherwise adversely affect the contractual or other legal rights or privileges of Company, or (d) violate any applicable US laws, including without limitation, FTC rules and/or guidelines, and consumer protection or product liability law; and (ii) Company has all the requisite resources, skill experience and qualifications to perform the services and/or obligations set forth in this Agreement and in any SOW, and such shall be done in a manner consistent with the specifications contained therein, in a professional and workmanlike manner in accordance with generally recognized industry standards for such services, and in compliance with applicable law; and (iii) Prior to commencement of any Experience with Hero Company will have performed its obligations regarding performing background and security checks, as further specified herein, and that the results of such check(s) will be accurately conveyed to Hero.
  1. Confidentiality. The Parties acknowledge that through the course of the relationship contemplated hereunder, past and present, each Party may have exposure to Confidential Information.  Each such Party (the “Receiving Party”) acknowledges and agrees that it shall not use for any purpose other than performance of this Agreement and applicable SOW’s, or disclose to any third party, other than its officers, employees or representatives with a need to know for the purposes of this Agreement, either during the term of this Agreement or any time thereafter, without the express permission of the other Party, any Confidential Information disclosed to the Receiving Party by the other Party (the “Disclosing Party”). For purposes of this Agreement, the term “Confidential Information” shall be deemed to mean and include all such information, material and data of the Disclosing Party (i) labeled or designated in writing as confidential or proprietary, (ii) which the Receiving Party knows or reasonably should know is confidential or proprietary, and solely by way of illustration and not in limitation shall include the following: Information relating to financial data, plans, forecasts, intellectual property, methodologies, agreements, market intelligence, technical concepts, personal information, strategic analyses, internal developments, publications, accountings or any other activities conducted or planned by either Party. The confidentiality obligations herein shall not apply to any such information (i) which is or becomes publicly known without any fault of or participation by the Receiving Party, (ii) was in Receiving Party’s possession prior to the time it was received from Disclosing Party or came into Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than Disclosing Party and not subject to any obligation of confidentiality or restriction of use, or (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party shall notify the Disclosing Party of the requirement of disclosure before making such disclosure and shall comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv) is independently developed by the Receiving Party by persons not having exposure to Disclosing Party’s Confidential Information. The Receiving Party shall be permitted to use Confidential Information of the Disclosing Party in connection with any legal proceeding arising out of or in connection with this Agreement, provided the Receiving Party uses commercially reasonable efforts to disclose and/or file such Confidential Information under seal or to obtain a mutually agreed protective order governing the use and disclosure of such Confidential Information in the legal proceeding.
  1. Insurance.  Hero must maintain at all times a primary accident and health insurance policy to cover any medical expenses, accidental bodily injury and/or accidental death, as well as any insurance to cover Hero’s short-term or long-term disability from any injury.  Hero understands and acknowledges that Company shall carry a general liability insurance policy and the Certificate of Insurance thereof (i) shall name Hero as an additional insured, provided, however, that Coverage shall be considered secondary and not in excess of or contributory to any other insurance afforded by Hero; (ii) shall provide that Hero is to receive 30 days written notice of cancellation or any material change in the designated insurance coverages; and (iii) shall provide for a waiver of any right of subrogation against Hero. The protection afforded to Hero by being named as an additional insured under Company’s insurance policies shall be limited to and shall be no greater than the protection afforded by Company’s indemnification obligation specified below.  Hero acknowledges that Company’s insurance policies will not cover Hero for any claims arising from any activity performed outside the scope of Engagement required hereunder. 
  1. Indemnification.  
    1. Hero understands and acknowledges that while Company has performed background checks on, and vetted any Fans prior to the execution/performance of an Experience/SOW, as further specified herein, there is an inherent risk in meeting a Fan and/or engaging in the activities which make up an Experience, as specified in an SOW. Hero hereby accepts and assumes those risks associated with any such activities Hero performs in connection with an SOW, and agrees to release the Company, and its affiliates, and other entities that may be related to the performance of the Experience in connection with the SOW, the Service, or otherwise, and their respective agents, successors, assigns and licensees and any of their respective affiliate companies, parent companies, subsidiaries, and advertising agencies (collectively, the “Released Parties”) from any and all liability whatsoever (including liability for negligence on behalf of the Company). Additionally, Hero agrees to defend, indemnify, and hold harmless the Released Parties from and against any expenses, damages, demands, claims, suits, actions, liabilities, judgments and costs, including reasonable attorney’s fees (collectively, “Losses”) arising out of or related to the services provided by Hero in connection with any SOW, specifically but not limited to any claims that arise out of injury to Hero while performing the activities specified in the respective SOW, any violation of third party rights by Hero, and other claims arising out of Hero’s action or inaction beyond the control of the Company, or relating to the breach of any covenants, agreements, representations, or warranties made by Hero in this Agreement, including but not limited to claims for personal injury, death, damage to property or false or misleading statements made by Hero about Company, the Service, or the Experience.  Hero Further agrees to defend, indemnify and hold Company harmless with respect to any claim or demand by any governmental agency or any other entity regarding any tax liability or financial obligation of Hero due to any fees received in connection with any SOW. The termination of this Agreement shall not affect the continuing indemnity obligation of Hero as set forth herein.
    1. Company will defend, indemnify, and hold harmless Hero from any Losses arising out of or relating to (i) the breach of any covenants, agreements, representations, or warranties made by Company in this Agreement, or (ii) any third party claim or action resulting from Company’s operation of the Service and in connection with the general management of the Company and/or operation of the Service, which shall include any Loss arising from the negligent fulfillment of any Experiences or any other services provided by the Service, to the extent such Loss is not subject to indemnification by Hero as specified above.
  1. Force Majeure.  No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement and applicable SOW when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation, acts of God, flood, fire or explosion, war, invasion, riot or other civil unrest, actions embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, or any other event which is beyond the reasonable control of such Party (collectively, a “Force Majeure Event”). A Party whose performance is affected by a Force Majeure Event shall give prompt notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The non-affected Party may terminate this Agreement and any affected SOW if such failure or delay continues for a period of thirty (30) days or more and, if the non-affected Party is Company, receive a refund of any amounts paid to the Hero in advance for the affected services in connection with such SOW.
  1. Limitation of Liability.   HERO AGREES THAT, IF THIS AGREEMENT IS TERMINATED FOR ANY REASON, HERO SHALL HAVE NO RIGHTS TO DAMAGES OR INDEMNIFICATION OF ANY NATURE AGAINST ANY OF THE RELEASED PARTIES. HERO EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO COMPENSATION OR INDEMNITIES FOR ANY TERMINATION OF A BUSINESS RELATIONSHIP.
  1. Assignment. This Agreement is made only between Company and Hero. The rights given to Hero pursuant to this Agreement may not be sold, transferred, assigned or otherwise conveyed in any way to any third party without the written consent of Company; any such purported sale, transfer, assignment, or conveyance without the written consent of Company shall be deemed null and void and a breach of this Agreement and shall give Company the right to immediately terminate this Agreement.
  1. Relationship of the Parties.  The parties are dealing with each other as independent contractors.  Nothing herein may be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency between Company or its affiliates, representatives, or employees, on the one hand, and Hero, on the other hand.
  1. Governing Law; Consent to Jurisdiction and Venue.   This Agreement shall be governed by and interpreted in accordance with, the laws of the state of California without regard to conflicts of law principles. The Superior Court of California, County of Los Angeles, or the United States District Court, Central District of California, Southern Division (“California Courts”) will be the exclusive venue for any action arising under this Agreement and Hero specifically consents to be subject to the personal jurisdiction of said California Courts.
  1. Attorney’s Fees. The prevailing party in any action under this Agreement shall be entitled to recover its reasonable outside attorneys’ fees in addition to any other damages or costs awarded by the court, or pursuant to Section 18 below (binding arbitration or other protective court action).
  1. Entire Agreement; Amendments; No Waiver.  This Agreement, including any and all SOW’s attached hereto contains the full and complete understanding between Company and Hero, and supersedes any and all prior understandings, arrangements, representations, discussions, and/or agreements, whether verbal, written, or otherwise between the parties relating to the subject matter hereof. No modification, amendment, or waiver of or with respect to any provisions of this Agreement, nor consent to any departure by Hero from any of the terms or conditions thereof, shall in any event be effective unless it shall be in writing and signed by Company and Hero.  Any waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand on Hero in any case shall, of itself, entitle it to any other or further consent or demand in similar or other circumstances. The failure of Company to insist upon the performance of any of the provisions of this Agreement, or to take advantage of any of its rights hereunder, will not be construed as a waiver of any such provisions or the relinquishment of any such rights, and the same will continue and remain in full force and effect. No single of partial exercise of any right or remedy will preclude other or further exercise of such right or remedy or the exercise of any other right or remedy.
  1. Severability. In the event any provision of this Agreement is found to be void or unenforceable for any reason, that provision will be severed and the remaining provisions of this Agreement shall continue to remain fully valid and effective to the fullest extent allowable by law.
  1. Counterparts. This Agreement may be executed in one or more counterparts, or by electronic signature, and may be delivered by fax or email with the same enforceability as if such signature pages were originals delivered in person.
  1. Binding Arbitration of Disputes.   If any controversy or claim arising out of or relating to this contract, or the breach of any term hereof, cannot be settled through direct discussions, it shall be resolved by binding arbitration conducted in the County of Los Angeles, and administered by JAMS in accordance with the Streamlined Arbitration Rules and Procedures of JAMS or subsequent versions thereof, including the optional appeal procedure (the “JAMS Rules”, available at www.jamsadr.com, including, without limitation, the rule providing that each party shall pay pro rata its share of JAMS fees and expenses, and the rules providing for limited discovery and other exchange of information). The JAMS Rules for selection of an arbitrator shall be followed, except that the arbitrator shall be an experienced arbitrator licensed to practice law in California. Notwithstanding the foregoing, Hero acknowledges and agrees that Company may nonetheless (i) seek to obtain injunctive or other equitable relief from a court to enforce Hero’s confidentiality obligations or to enforce Company’s (or its affiliates’) intellectual property rights, and (ii) bring an action to enforce the decision of the arbitrator before any court with jurisdiction.
  1. Headings; References. The headings of the Paragraphs herein are inserted for convenience of reference only and are not intended to affect the meaning or interpretation of this Agreement. Any reference to an Exhibit shall be deemed to refer to the applicable Exhibit attached hereto. As used herein, or in any Exhibit hereto, words of any gender (masculine, feminine, neutral) mean and include correlative words of the other genders.
  1. Notices and Communications. Notices: All notices and invoices and payments shall be in writing and shall be given by the parties personally, by overnight mailing (postage prepaid), or by email (with confirmation of receipt) at the address set forth below:
  • To Company: 4245 Alhama Drive, Woodland Hills, CA 91364 – Attn: Bryon Smith (Bryon@heromeetings.com); With a courtesy copy of any notices to: AltView Law Group, LLP, 12100 Wilshire Blvd., Ste. #800, Los Angeles, CA 90025 – Attn: Jason W. Brooks, Esq. (Jason@altviewlawgroup.com)
  • To Hero:  As indicated at the top of this Agreement, or as otherwise designated by Hero in writing from time to time.

The date of receipt of such personal delivery or mailing shall be presumed to be not later than two (2) days following submission of such notice, statement or payment, properly addressed to the applicable carrier.

  1. Survival. The provisions of Paragraphs: 1, 2, 4, 5, 6, 8 through 21 shall survive the termination of this Agreement under any circumstances.