PARTY CHARACTERS FOR HIRE CUSTOMER AGREEMENT
1.0 DEFINITTIONS
Party Characters — wherever used in this Agreement, the phrase “Party Characters” is understood to refer to https://partycharactersforhire.com, Inc., and to all associates, partners, directors, officers, agents, employees, and assigns of https://partycharactersforhire.com, Inc. Party Characters is located at 3600 Wilshire Blvd, Los Angeles, CA 90036.
Entertainer — wherever used in this Agreement, the word “Entertainer” is understood to refer to the person or company, and all his/her/its associates, partners, directors, officers, agents, employees, and assigns, that enters into this Agreement with Party Characters for the purposes of performing the Entertainment Service. It includes clowns, costumed characters, balloon twisters, magicians, comedians, and other entertainment service providers.
Customer — wherever used in this Agreement, the word “Customer” is understood to refer to the person(s) who, using Party Characters’ web site and service, request(s) the Entertainment Service.
Entertainment Service – wherever used in this Agreement, the phrase “Entertainment Service” is understood to refer to a single, one-time performance of a song, play, trick, show, book-reading, or any other entertainment event — to be performed by Entertainer, and which is: (1) requested by Customer to be performed at the time and place of Customer’s choice (Place of Performance); (2) communicated and relayed by Party Characters to Entertainer; and (3) accepted by Entertainer pursuant to the terms of this Agreement.
Place of Performance — wherever used in this Agreement, the phrase “Place of Performance” is understood to refer to (1) Customer’s residence, house, apartment, backyard, front yard, business location, (2) park, recreation center, playground, hall, room or (3) any other place / location chosen by Customer for the performance of the Entertainment Service.
Booking Fee — wherever used in this Agreement, the term “Booking Fee” is understood to refer to the fee paid by Customer to Party Characters for the intermediary service of connecting Customer with Entertainer with respect to the performance of Entertainment Service.
This Site — wherever used in this Agreement, the term “This Site” is understood to refer to Party Character’s website.
2.0 GENERAL PROVISIONS
The following describes the terms on which Party Characters offers access to its services.
2.1 Welcome to the Customer Agreement for Party Characters. This Agreement describes the terms and conditions applicable to Customer’s use of Party Characters’ intermediary services available under the domain and sub-domains of https://partycharactersforhire.com. Customer must not use or access Party Characters’ intermediary services if Customer does not agree to be bound by the terms and conditions of this Agreement.
2.2 Customer must read, agree with and accept all of the terms and conditions contained in this Agreement, which include those terms and conditions expressly set out below and those incorporated by reference. Party Characters strongly recommends that, after Customer reads this Agreement, Customer also accesses and reads other pertinent pages of the Party Characters web site, as they may contain further terms and conditions that apply to Customer.
2.3 Party Characters may amend this Agreement at any time by posting the amended terms on Party Characters’ web site. If Customer had read a prior version of Party Characters’ Entertainer Agreement in the past with respect to a prior Entertainment Service, Customer must not assume that this Agreement is the same.
3.0 PARTY CHARACTERS IS AN INTERMIDIARY
3.1 The regular business of Party Characters is solely to act as an intermediary – to connect Customers with Entertainers. Party Characters does not and will not in any way physically participate in the performance of any Entertainment Service.
3.2 Party Characters helps Customers find the right entertainment for their kid’s party, corporate event or private affair. It is a website used by consumers to search and hire Entertainment Services by clowns, costumed characters, balloon twisters, magicians, comedians, and other Entertainers.
3.3 Entertainers must use only generic costumes that do not infringe on any intellectual property of brand-name characters or companies. Customers must not expect to see any brand-name characters during the performance of any Entertainment Service.
3.4 Entertainers and Customers share the responsibility for making sure the Entertainment Service events are exciting, rewarding, and hassle-free. Party Characters stresses that it is only an intermediary – a site, which allows Entertainers to sell Entertainment Services directly to Customers, and allows Customers to buy Entertainment Services directly from Entertainers. Party Characters provides intermediary services, which help Entertainers and Customers book their transaction.
3.5 Party Characters has absolutely no control over the quality, safety or legality of the Entertainment Service performed by Entertainer for Customer. The quality of Entertainment Service is a factor, among other things, of Entertainer’s education, training, experience, and skills – all of which Party Characters has no control over. As an independent contractor, in performing Entertainment Service, Entertainer owes a duty to Customer to perform good quality Entertainment Service that is safe and legal in all aspects.
3.6 Customer’s complaints related to the performance of the Entertainment Service must be directed to Entertainer. In the event of such a claim by Customer, Customer permits Party Characters to make a final decision, in its sole discretion, with respect to the issue of whether Customer’s claim is valid or not. Party Characters strongly encourages Customer to make reasonable and good faith attempts to resolve all claims related to Entertainment Service amicably and informally.
4.0 ENTERTAINER IS AN INDEPENDENT CONTRACTOR. ENTERTAINER IS NOT AN EMPLOYEE OF PARTY CHARACTERS.
4.1 Entertainer is not an employee of Party Characters. In performing the Entertainment Service pursuant to this Agreement, Entertainer acts solely as an independent contractor.
4.2 Party Characters does not have the right to control how Entertainer performs the Entertainment Service, and Party Characters will not control how Entertainer performs the Entertainment Service in any manner. Party Characters can only specify the result – i.e. Entertainer’s performance of the Entertainment Service in the capacity of an entertainment professional. Entertainer has the right to choose the costumes, text, lyrics, script, prompts, toys, duration, the number of performers, and all other aspects of the Entertainment Service. Further, Entertainer is not obligated to accept any offered Entertainment Service, and Entertainer has the right to refuse and reject any offered Entertainment Service for any reason; such rejection will not be used by Party Characters against Entertainer in any manner, including potential future Entertainment Services.
4.3 Party Characters does not and will not supply Entertainer with any equipment, tools, costumes, text, lyrics, script, prompts, toys, duration, performers, or any other object /item or person necessary to perform the Entertainment Service. In addition, Party Characters does not and will not supply Entertainer with any place of work or location to perform the Entertainment Service by Entertainer; it is the sole obligation of Entertainer to organize and arrange the Place of Performance directly with a Customer.
4.4 Entertainer will be paid by the job – i.e. for one Entertainment Service pursuant to this Agreement. Entertainer will not be paid by the hour.
4.5 The work being done by Entertainer is not part of the regular business of Party Characters. Specifically, it is not part of the regular business of Party Characters to perform any actual performances, including the Entertainment Service. The work being done by Entertainer (i.e. the Entertainment Service) is not the same as the work normally done by Party Characters or its employees. The regular business of Party Characters is solely to act as an intermediary – to connect Customers with Entertainers. Party Characters will not in any way physically participate in the performance of any Entertainment Service.
4.6 Once Party Characters and Entertainer enter into this Agreement for a single Entertainment Service, Party Characters does not and will not have an unlimited right to end the relationship with Entertainer. Party Characters has a right not to offer future engagements (or Entertainment Services) to Entertainer once this Entertainment Service is completed; however, once Entertainer signs this Agreement, Party Characters does not have an unlimited right to end, terminate, or cancel the Entertainment Service. Customer has the right to end, terminate, or cancel the Entertainment Service; in this respect, Party Characters can communicate Customer’s decision to Entertainer. The respective rights and obligations of Party Characters, Customer, and Entertainer with respect to cancellations of Entertainment Service are set forth in the CANCELLATION POLICY section of this Agreement.
4.7 The work being done by Entertainer (i.e. the Entertainment Service) does not have to be Entertainer’s only occupation or business. Entertainer has a right to engage in any other work, trade, profession, occupation or business. Party Characters does not have any right to control or decide what additional work, trade, profession, occupation or business Entertainer chooses.
4.8 The kind of work performed by Entertainer is not usually done under the direction of a supervisor. The kind of work performed by Entertainer (the Entertainment Service) — the creative and artistic work – is performed by a specialist working without supervision. Party Characters will not supervise, in any manner, directly or indirectly, the work done by Entertainer during the Entertainment Service. Party Characters will not provide any training, direction or instruction to Entertainer regarding the Entertainment Service.
4.9 The kind of work performed by Entertainer (i.e. the Entertainment Service) requires specialized and professional skills – the skills of a professional entertainer and a performer. By entering into this Agreement, Entertainer assures and guarantees to Party Characters that Entertainer does possess the required skills necessary to perform the Entertainment Service for Customer.
4.10 The services performed by Entertainer are not to be performed over a long period of time. This agreement does not and will not create any long-term relationship between Party Characters and Entertainer. This agreement is valid only for only one particular Entertainment Service. Party Characters reserves the right not to communicate or relay any future Entertainment Services to Entertainer.
4.11 By entering into this Agreement, Entertainer assures and guarantees to Party Characters that Entertainer is a separately established business. In performing the Entertainment Service, Entertainer is free to hire employees and assign the work to others in any way Entertainer chooses. Entertainer has the right and authority to fire Entertainer’s employees without Party Characters’ knowledge or consent. Entertainer is free to advertise Entertainer’s services on any websites, in any newspapers and publications, and seek new customers through the use of business cards. This agreement is not intended to create an exclusive or long-term relationship between Party Characters and Entertainer.
4.12 Entertainer is free to make business decisions that affect Entertainer’s ability to profit or suffer a loss. Entertainer is free to decide when, where, and at what price to purchase and acquire any equipment, tools, costumes, text, lyrics, script, prompts, toys, or any other item necessary to perform the Entertainment Service. Entertainer is free to make any business decisions, including decisions regarding the amount and type of advertising for Entertainer’s business, and selection of the types and amounts of insurance coverage for the business.
5.0 NO AGENCY
5.1 No agency, partnership, joint venture, employer-employee, or franchiser-franchisee relationship between Party Characters and Entertainer is intended or created by this Agreement.
6.0 CUSTOMER’S AGREEMENT TO ACCEPT AND PAY FOR ENTERTAINMENT SERVICE
6.1 Customer hereby agrees to accept the Entertainment Service to be performed by Entertainer at the Place of Performance. Customer agrees to pay for the Entertainment Service.
7.0 CUSTOMER’S CONDUCT
7.1 Customer is solely responsible for the information Customer communicates in any manner to any Entertainer.
7.2 Customer must not and will not communicate to any Entertainer or any other Customer any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). Furthermore, Customer will not take actions to promote the physical harm or harassment of another person, engage in or promote spamming, provide information that Customer knows or should know is illegal, false or misleading, or designed to exploit those under 18, or otherwise provide instructional information about illegal activities such as making or buying illegal weapons, violating someone else’s right to privacy or providing or creating computer viruses.
7.3 Customer must not and will not provide inaccurate, misleading or false information to Party Characters or to any Entertainer. If information provided to Party Characters, or any Entertainer, subsequently becomes inaccurate, misleading or false, Customer will promptly notify Party Characters and Entertainer of such change.
7.4 Customer must not and will not engage in advertising to, or solicitation of, any Entertainer. Customer will not transmit any chain letters or junk E-mail to any Entertainer.
7.5 Customer will promptly report to Party Characters any violation of the terms of this Agreement by Entertainer or Customer.
7.6 Customer must not and will not make any derogatory and/or slanderous comments about anyone, including Party Characters, any other Customer, any Entertainer, and any other third party or fictitious / brand-name character.
8.0 INFORMATION CONTROL
8.1 Party Characters does not control the information, which is (1) exchanged in any manner between Customers and Entertainers and (2) provided by Customers and Entertainers to each other through any direct or indirect use of Party Characters’ website. Customers and Entertainers may find each other’s information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe communications when using Party Characters’ website (“this Site”).
8.2 Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be potential risks dealing with international trade and foreign nationals. By using this Site, Customer agrees to accept such risks, and release Party Characters from any and all claims, demands, causes of action, damages, obligations, liabilities, rights and losses as set forth in the RELEASE section of this Agreement.
9.0 FEES
9.1 There is no charge for any Entertainer or Customer to utilize the Party Characters’ Web Site.
9.2 The Booking Fee must be paid by Customer to Party Characters in advance of the Entertainment Service and on the date when Customer requests and reserves the Entertainment Service. The Booking Fee is 34% of the total amount charged by Entertainer for the Entertainment Service requested by Customer. The Booking Fee is a one-time fee, and it is not intended to create any long-term relationship between Customer and Party Characters. The fact that Customer pays Booking Fee once, does not mean that Party Characters will perform this service for Customer in the future at no charge. If Customer decides to organize another Entertainment Service through Party Characters in the future, each and every such transaction will require a separate Booking Fee.
9.3 If the Booking Fee is not paid to Party Characters for any reason (e.g. a credit card is declined, a computer glitch or virus, insufficient funds, or any other event when a payment is not processed), and Customer takes no steps to make sure the Booking Fee is properly paid, Party Characters will not communicate and/or offer Customer’s request for Entertainment Service to any Entertainer. In this event, the Entertainment Service will not occur.
9.4 It is Customer’s obligation to pay the remaining 66% of the total amount charged by Entertainer for the Entertainment Service – directly to Entertainer and immediately after the completion of the Entertainment Service. If Customer fails to pay Entertainer immediately after the completion of the Entertainment Service (through a direct refusal to pay, insufficient funds, declined credit card, and other payment failure), and Entertainer informs Party Characters of this failure to pay, Party Characters reserves the right to collect from Customer the fee owed by Customer to Entertainer; in such cases, Party Characters reserves the right to charge the same credit card (or another payment method) that was used by Customer to pay the Booking Fee. All unpaid balances will be referred to a debt collection agency.
9.5 Party Characters reserves the right to correct any of its processing errors by debiting or crediting the payment method used for the transaction that turned out to be erroneous.
10.0 REFUNDS AND CANCELLATIONS
10.1 No-show by Entertainer
10.1(a) If the Entertainer does not show up at the Place of Performance for the scheduled Entertainment Service, the Booking Fee will be refunded to Customer ONLY IF Customer notifies Party Characters about Entertainer’s no-show within 7 days of the Entertainment Service date.
10.1(b) Once Party Characters has received confirmation of the no-show from both Customer and Entertainer, a refund of the Booking Fee will be issued immediately. This refund will not, under any circumstances, exceed the Booking Fee paid by Customer.
10.1(c) In case of Entertainer’s no-show, Entertainer shall reimburse and indemnify Party Characters for the Booking Fee refunded to Customer.
10.2 Cancellation by Customer
10.2(a) Customer can cancel the Entertainment Service for any reason and at any time prior to the scheduled time of the Entertainment Service. In case of a cancellation by Customer, the Booking Fee will be refunded to Customer ONLY IF Customer notifies Party Characters about Customer’s cancellation no later than 48 hours before the scheduled Entertainment Service.
10.2(b) If Customer notifies Party Characters about Customer’s cancellation during the 48 hours before the scheduled Entertainment Service, no Booking Fee refund will be issued. However, Party Characters will apply the paid Booking Fee as a credit towards another Entertainment Service, which will be valid for 1 (one) year after the Booking Fee was paid.
10.2(c) Customer’s cancellations not made 8 hours prior to scheduled date of the Entertainment Service will result in Customer’s obligation and liability to pay the full price of the Entertainment Service — i.e. Customer’s obligation to pay the remaining 66% of the total amount charged by Entertainer for the Entertainment Service. In such cases, Party Characters reserves the right to charge the same credit card (or another payment method) that was used by Customer to pay the Booking Fee. All unpaid balances will be referred to a debt collection agency.
10.3 Cancellation by Entertainer: Entertainer can cancel the Entertainment Service for any reason and at any time prior to the scheduled time of the Entertainment Service. Customer must understand that this is not a cancellation by Party Characters, this is a cancellation by Entertainer.
10.3(a) If, at any time after the Entertainment Service has been scheduled, Entertainer cancels the Entertainment Service, the Booking Fee will be refunded to Customer ONLY IF Customer notifies Party Characters about Entertainer’s cancellation within 48 hours of learning about Entertainer’s cancellation (this notification must occur before the scheduled date of the Entertainment Service).
10.3(b) Once Party Characters has received confirmation of the Entertainer’s cancellation from both Customer and Entertainer, a refund of the Booking Fee will be issued immediately. This refund will not, under any circumstances, exceed the Booking Fee paid by Customer.
10.3(c) In case of Entertainer’s cancellation, Entertainer shall reimburse and indemnify Party Characters for the Booking Fee refunded to Customer.
10.4 Cancellation by Party Characters
10.4(a) Without limiting any other remedies, Party Characters reserves the right to cancel the Entertainment Service if Party Characters suspects that Entertainer engaged in any fraudulent activity, misrepresentation, falsehoods, or inappropriate behavior. In this case, a refund of the Booking Fee will be issued immediately. This refund will not, under any circumstances, exceed the Booking Fee paid by Customer. Entertainer shall reimburse and indemnify Party Characters for the Booking Fee refunded to Customer.
10.4(b) Without limiting any other remedies, Party Characters reserves the right to cancel the Entertainment Service if Party Characters suspects that Customer engaged in any fraudulent activity, misrepresentation, falsehoods, or inappropriate behavior. In this case, no Booking Fee refund will be issued.
10.5 Rain Cancellation Policy
10.5(a) In the event of rain on the day of the scheduled Entertainment Service, Customer can cancel the Entertainment Service without any charge prior to the arrival of Entertainer; in this case, the Booking Fee will be refunded to Customer. However, if Entertainer has arrived, there will be no refund.
10.6 Emergency Situations
10.6(a) Entertainer emergencies: If an Entertainer is in a life threatening emergency, Party Characters tries to find a replacement entertainer. Each Entertainer has unique skill sets and talents, so some activities in the Entertainment Service may differ slightly in the event of such an emergency. If Party Characters is unable to arrange a replacement entertainer, the Booking Fee will be refunded. These circumstances are very rare.
11.0 INDEMNITY
11.1 Customer shall indemnify and hold Party Characters harmless against any and all claims, legal actions, judgments, demands, damages, liabilities and costs, reasonable attorneys’ fees, which directly or indirectly result from, or arise out of or in connection with, any negligent, reckless, or intentional act or omission by anyone present at the Place of Performance, including Customer and Customer’s children, family members, friends, acquaintances, and guests, pertaining to this Agreement and the performance of the Entertainment Service, and including, but not limited to, the following:
Any and all physical, bodily, emotional, mental, and psychiatric injury inflicted to Entertainer by anyone present at the Place of Performance, including but not limited to, acts or omissions by Customer, and Customer’s children, family members, friends, acquaintances, and guests;
Any and all damage to Entertainer’s property (vehicle, clothing, or personal effects); and
Any act or omission by Customer, which constitutes a breach of this Agreement or the documents it incorporates by reference, or Customer’s violation of any law or the rights of a third party.
12.0 RELEASE
12.1 Customer hereby releases and forever discharges Party Characters from any and all claims, demands, causes of action, damages, obligations, liabilities, rights and losses, whether known or unknown, suspected or unsuspected, foreseen and unforeseen, for any damage, and the consequences thereof, arising out of or in any way connected with (1) any aspect of this Agreement, (2) any aspect of the Entertainment Service, and (3) any aspect of the direct and indirect use of this Site.
12.2 The release set forth in section 12.1 of this Agreement, includes but is not limited to, Customer’s release of Party Characters from any and all claims, legal actions, judgments, demands, damages, liabilities and costs, reasonable attorneys’ fees, and including Booking Fee refunds to Customer, which directly or indirectly result from, or arise out of or in connection with, any negligent, reckless, or intentional act or omission of Entertainer, pertaining to Entertainer’s activities and obligations under this Agreement and including, but not limited to, the following:
Any and all physical, bodily, emotional, mental, and psychiatric injury inflicted by Entertainer to anyone present at the Place of Performance, including but not limited to, Customer, and Customer’s children, family members, friends, acquaintances, and guests;
Any and all battery and sexual assault, harassment, and molestation inflicted by Entertainer to anyone present at the Place of Performance, including but not limited to, Customer, and Customer’s children, family members, friends, acquaintances, and guests;
Any and all property damage inflicted by Entertainer to any object present at or near the Place of Performance, including but not limited to, TV’s, furniture, cars, vases, dishes, personal effects, appliances, fences, walls, and any fixtures or aspects of real estate;
Any and all claims by Customer related to or arising out of the following: (a) Entertainer’s incomplete performance of the Entertainment Service, (b) Entertainer’s performance of the Entertainment Service, which was not satisfactory for Customer, (c) Entertainer’s late (15 minutes or longer after the agreed-upon starting time) arrival to the Place of Performance for the Entertainment Service; and (d) Entertainer’s cancellation of the Entertainment Service after it has been scheduled; and
Any act or omission by Entertainer, which constitutes a breach of this Agreement or the documents it incorporates by reference, or Entertainer’s violation of any law or the rights of a third party.
12.3 Further, Customer waives for all purposes the provisions of Section 1542 of the California Civil Code which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
13.0 FORUM FOR DISPUTES
13.1 Customer agrees that any claim, controversy, or dispute Customer may have against Party Characters, including any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement, must be resolved by a State court located in Los Angeles County, California. Depending on the amount in controversy, any such dispute, claim or controversy will be resolved in either Los Angeles County Court of general jurisdiction, limited jurisdiction, or small claims court. Customer agrees to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating any and all such claims, controversies or disputes.
14.0 SIGNATURE
14.1 Customer understands and agrees that, pursuant to California Civil Code section 1633.2 (h), “Electronic signature” means “an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.”
14.2 Customer understands and agrees that, by putting an electronic checkmark next to the phrase “I have read this Agreement in its entirety, and I fully agree with and accept all terms and conditions of this Agreement”, this action constitutes Customer’s “electronic signature” within the meaning of California Civil Code sections 1633.2 (h) and 1633.7, and it has the same legal force and effect as Customer’s actual physical / handwritten signature.
14.3 Customer understands and agrees that, pursuant to California Civil Code section 1633.7: “(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. (c) If a law requires a record to be in writing, an electronic record satisfies the law. (d) If a law requires a signature, an electronic signature satisfies the law.”
14.4 Customer understands and agrees that, once Customer signs and executes this Agreement either through an actual physical / handwritten signature or through an electronic signature, this Agreement shall be fully and completely effective and binding upon Customer.
15.0 CALIFORNIA LAW
15.1 This Agreement shall be deemed to be entered into and performed in the County of Los Angeles, State of California, and shall be interpreted under the laws of the State of California. This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions.
