THIS SERVICES AGREEMENT (together with any and all extensions, renewals, modifications, substitutions and amendments hereof, this “Agreement”) is entered into as of Saturday, March 25, 2023 and shall be effective as of the Effective Date (as hereinafter defined), by and between FLU GAME LLC, a Delaware limited liability company having an office located at 5995 E Grant Road, Suite 200, Tucson AZ 85712 (the “Company”); and The Name Above, an individual residing at [_________________, _______, _________, ___________ _______] (“Celebrity”).

 

W I T N E S S E T H :

 

WHEREAS, the Company is in the business of owning, operating, maintaining, administering, and hosting a certain online competitive video game service platform (the “Platform”) accessible via the Uniform Resource Locator (URL) [campaign.tv] (collectively, the “Business”); and

 

WHEREAS, the Company desires to engage Celebrity to perform the Services (as hereinafter defined), and Celebrity desires to be so engaged by the Company, for the Term (as hereinafter defined) pursuant to, and in accordance with, the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

1. Engagement. The Company hereby engages Celebrity as an independent contractor of the Company, and Celebrity hereby accepts such engagement, to render such services as the Company may designate to Celebrity from time to time (collectively, the “Services”), including, without limitation: (a) using the Platform to participate in online gaming interactions with its users (individually and/or collectively, as the context may require, “User Interactions”); (b) recruiting suitable celebrities and other publicly recognized personalities who agree to use the Platform to participate in User Interactions (individually and/or collectively, as the context may require, “Celebrity Participants”).

 

2. Services; Scope of Engagement.

 

• Time Commitment. Celebrity shall devote to the Business such amount of Celebrity’s energies, interest, abilities and productive time as is necessary to perform the Services; provided, however, that the Services shall not be exclusive to the Company.

 

• The Company’s Obligation. The Company shall have fully discharged its obligations pursuant to this Agreement upon the payment in full to Celebrity of the compensation set forth in Section 4 of this Agreement.

 

• Company’s Agreements Not to Compete. Celebrity agrees to comply with any and all restrictions on competitive activity by the Company and its employees and/or contractors contained in any agreement to which the Company is a signatory during the term of any such agreement.

 

• Independent Contractor. CELEBRITY understands and acknowledges that CELEBRITY is an independent contractor of the Company, as such term is used in the United States tax laws, and that, EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED IN THIS AGREEMENT, nothing contained HEREin shall be deemed to establish, or BE construed as establishing, any partnership, joint venture or franchise or employer-employee relationship by and between the Company and CELEBRITY.  CELEBRITY warrants that HE will pay all required taxes on the fees or other compensation that the Company pays to HIM under this Agreement and file any applicable tax returns or other documents in connection therewith.

 

• Instructions and Directions; Terms and Conditions. Celebrity will promptly and faithfully comply with all reasonable instructions, directions, requests, rules and regulations made or issued by the Company, including, without limitation, the Company’s standard terms and conditions with respect to the use of the Platform, as promulgated, modified and/or appended by the Company from time to time upon notice to Celebrity (collectively, the “Terms and Conditions”).  Celebrity understands and acknowledges that any violation by Celebrity of any of the Terms and Conditions shall entitle the Company to terminate this Agreement.  In the event of any conflict or inconsistency between or among the provisions of this Agreement and those contained in the Terms and Conditions, the provisions of this Agreement shall govern and control in each instance.

 

3. Term. The term (the “Term”) of term of Celebrity’s engagement by the Company pursuant to this Agreement shall commence on the Effective Date and shall continue until this Agreement is terminated in accordance with the provisions of Section 9 hereof (the “Term”).  In the event that Celebrity has commenced but not yet completed specific services at the end of the Term, Celebrity agrees to complete such specific services (but only such specific services) and the Company agrees to pay Celebrity’s compensation set forth herein under such circumstances.

 

4. Payment for the Services.

 

• Payments Generally. Except and to the extent expressly otherwise provided herein, any and all payments made by the Company to Celebrity in consideration of the Services shall be derived from the Net Revenues of the Business.  For purposes of this Agreement, the term “Net Revenues” means, for any period, the amount of the gross revenues earned, generated or received by the Business from public users of the Platform; minus certain operating and/or administrative expenses of the Business in an amount equal to four and one-half percent (4.5%) of such gross revenues (the “Company Expenses”).  The Company may, from time to time and upon written notice to Celebrity, adjust the percentage of gross revenues comprising Company Expenses as and when it deems necessary or desirable in its commercially reasonable judgment.

 

• Payments for Celebrity’s User Interactions. Subject to adjustment based on the amounts of any Charitable Contributions (as hereinafter defined), for each User Interaction personally conducted by Celebrity, the Company shall pay to Celebrity an amount equal to seventy percent (70%) of the Net Revenues attributable to such User Interaction (each, a “User Interaction Payment”).  Notwithstanding the foregoing or anything to the contrary contained herein: (i) any and all User Interaction Payments due and payable to Celebrity shall be reduced by the portion(s) thereof which Celebrity, upon written notice in each instance, instructs the Company to donate to an organization or entity exempt from federal income tax pursuant to Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, designated by Celebrity and approved by the Company in its sole discretion (individually and/or collectively, as the context may require, “Charitable Contributions”); and (ii) in lieu of his acceptance of any User Interaction Payment, Celebrity may, upon written notice to the Company in each instance, instruct the Company to make a Charitable Contribution in an amount equal to one hundred percent (100%) of the Net Revenues attributable to the applicable User Interaction (including the Net Revenues allocable to the Company therefor) for which such User Interaction Payment otherwise would be payable.

 

• Payments for Celebrity Participants’ User Interactions. Provided, that this Agreement remains in full force and effect and has not been terminated pursuant to Section 9(b) hereof, for each User Interaction conducted by one or more Celebrity Participants referred by Celebrity to the Company (“Celebrity Referral”) who enters into a written agreement memorializing the terms and conditions of such Celebrity Participant’s engagement by the Company and conducts a User Interaction, the Company shall pay to Celebrity an amount equal to five percent (5%) of the Net Revenues attributable to such User Interactions that occur within 1 year of the first Celebrity Referral for that Celebrity Participant  (each a “Celebrity User Interaction Payment”).

 

• Timing of Payments. Subject to the provisions of the Terms and Conditions, and except and to the extent expressly otherwise provided herein, the Company shall pay to Celebrity all amounts due to Celebrity on account of the Services accrued thereafter within thirty (30) days following receipt by the Company of payment by the user for the applicable User Interaction.

 

• Post-Expiration Payments. Each of the Company and Celebrity hereby acknowledges that the Company may receive money attributable to the Services following the expiration of the Term.  Accordingly, any amounts paid to Celebrity pursuant to Section 4 above shall constitute payment for Services rendered by Celebrity during the Term, even though such payments may be made following the expiration of the Term, and notwithstanding that Celebrity may not be performing Services for the Company at the time that any such payment is made.

 

5. Deductions from Payments.

 

• No Withholdings. The Company shall not be responsible for the payment of any payroll or other withholdings, taxes, penalties, assessments, interest or similar amounts (collectively, “Withholdings”) required by any federal, state or local government, agency or authority on the amounts paid to Celebrity pursuant to this Agreement.  The payment of Withholdings, if any, shall be the sole obligation of Celebrity.  If, for any reason and at any time, any claim is made against the Company for Withholdings of any kind on any amounts received by Celebrity pursuant to this Agreement, Celebrity shall indemnify and hold harmless the Company (including reasonable attorneys’ fees, court costs and expenses) from and against any and all such claims, including any claims for penalties or interest.

 

• Offsets. The Company may offset against any monies now or hereafter payable to Celebrity the amount of any fixed and ascertained liabilities of Celebrity to the Company.

 

• Legal Proceedings. In the event that the Company is directed, by virtue of the service of any garnishment, levy, execution or judicial order, to apply any amounts payable pursuant to this Agreement to any person, corporation or other entity or judicial or governmental officer, the Company shall have the right to pay any such amounts in accordance with such directions, and the Company’s obligations to Celebrity shall be discharged to the extent of such payments.  If, because of conflicting claims to amounts payable pursuant to this Agreement, the Company becomes a party to any judicial proceeding affecting the payment or ownership of such amounts, Celebrity shall reimburse the Company for all costs, including reasonable attorneys’ fees, incurred in connection therewith.

 

6. Business Expenses. Unless and to the extent as may otherwise be agreed to by the Company, Celebrity shall not be entitled to receive reimbursement for any business expenses incurred in connection with his performance of the Services, including, without limitation, travel and transportation expenses, lodging and meals and entertainment expenses.

 

7. [Intentionally Omitted.]

 

8. The Company’s Rights; Name and Likeness; Confidentiality; Non-Competition; Non-Solicitation.

 

• The Company’s Rights. All Works (as such term is hereinafter defined) created or generated by Celebrity within the scope of Celebrity’s engagement hereunder (including his use of the Platform) shall be owned by the Company.  Celebrity shall have no Rights in, to or under any Works, and Celebrity hereby specifically and expressly disclaims and waives any and all claim, right, title and interest therein, thereto and thereunder.  Any and all such Works created or generated by Celebrity and owned by the Company that could be the subject of intellectual property rights of any kind (whether patent, trademark or copyright), statutory or non-statutory, foreign, domestic or international, including moral rights or rights of authorship, integrity and paternity (so-called “droit moral”), shall in all respects be considered and deemed to be “works made for hire,” as such term is used under, and defined in, 17 U.S.C. §§ 101 and 201(b), in which all right, title and interest of any kind throughout the world shall belong to the Company.  In such event, the Company shall be considered to be the author of all such Works and shall own all Rights of every kind and character therein, thereto and thereunder, including, without limitation, all Rights comprised in the copyrights thereof, if any.

 

• Celebrity hereby agrees to execute and deliver such documents, instruments and/or agreements as may be requested by the Company from time to time to obtain, register, perfect, maintain, enforce and/or further evidence the Company’s Rights, if any, in, to and under the Works, if and when so requested by the Company.

 

• In the event that the Company desires to secure further documents, instruments and/or agreements covering, quitclaiming or assigning all or any of the Rights in, to and under the Works, Celebrity agrees to execute and deliver the same to the Company at any time, and from time to time, upon the Company’s request therefor, in such form and substance as may be delivered to Celebrity by the Company. The failure by Celebrity to execute and deliver such further documents, instruments and/or agreements as are required pursuant to Section 8(a)(i) above or this Section 8(a)(ii) shall not prejudice, limit or otherwise affect any of the Company’s Rights in, to and under the Works.

 

• Celebrity hereby appoints the Company as attorney-in-fact for Celebrity to execute, in the name and on behalf of Celebrity, such documents, instruments and/or agreements referenced in Sections 8(a)(i) and 8(a)(ii) hereof as may be prepared by the Company and delivered to Celebrity, any of which documents, instruments and/or agreements Celebrity fails to execute and return to the Company within five (5) business days following the submission thereof.

 

• Name and Likeness. To the extent permitted by applicable law, Celebrity hereby grants to the Company the right to use Celebrity’s name and biographical data, as well as photographs of Celebrity, in connection with the advertising, marketing and promotion of the Business and the Platform.  No fixed compensation other than as set forth in Section 4 hereof shall be payable to Celebrity for the right granted by Celebrity to the Company pursuant to this Section 8(b).

 

• Definition of “Works”. For purposes of this Agreement, the term “Works” includes, without limitation, any and all original and useful works, products, inventions, works of authorship, business methods, texts, computer software, databases and any other tangible expression of an original or useful idea in connection with the Business and/or the Platform.

 

• Definition of “Rights”. For purposes of this Agreement, the term “Rights” includes, without limitation, the complete, unencumbered and exclusive rights throughout the world and in perpetuity to exhibit, record, reproduce, broadcast, transmit, publish, sell, distribute, perform and use the Works, and to authorize others to do any or all of the foregoing, for any purpose, in any manner, in any language, and by any method, means or media now known or hereafter discovered, invented, used, contemplated or devised, and whether separately or in conjunction with other Works.

 

• Confidentiality; Non-Disclosure.

 

• Celebrity shall not, without the prior written consent of the Company in each instance, disclose, divulge, publish to others or employ to his own advantage, other than as is expressly provided herein, any Confidential Information (as such term is hereinafter defined) or any other proprietary or confidential information disclosed to Celebrity in connection with this Agreement.

 

• Celebrity shall not disclose any Confidential Information (as such term is hereinafter defined) in any manner whatsoever, except as compelled by applicable law, and shall hold and maintain said information in his strictest confidence. Celebrity hereby agrees to indemnify and hold harmless the Company and its subsidiaries and affiliates from and against any and all losses, damages, claims, expenses and attorneys’ fees incurred or suffered thereby as a result of any breach by Celebrity of the provisions of this Section 8(e).

 

• Celebrity hereby acknowledges and agrees that any disclosure or misappropriation of any Confidential Information (as such term is hereinafter defined) in violation of this Agreement will cause irreparable damage, the amount of which damage may be difficult to ascertain, and Celebrity therefore agrees that the Company shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as such court shall deem appropriate. Such right shall be in addition to the remedies otherwise available to the Company pursuant to this Agreement, at law, in equity or otherwise.  Celebrity expressly waives the defense that a remedy in damages will be adequate and any requirement in an action for specific performance or injunction for the posting of a bond.

 

• As used in this Agreement, the term “Confidential Information” shall mean and include: (A) all information or material that has or could have commercial value or other utility in the Business or prospective business of the Company or its subsidiaries or affiliates; and (B) all information, the unauthorized dissemination of which could be detrimental to the interests of the Company or its subsidiaries or affiliates, irrespective of whether such information is identified as Confidential Information. By way of example, and without limiting the generality of the foregoing, the term “Confidential Information” includes, but is not limited to, any and all information of the following or similar nature, whether or not reduced to writing: confidential or proprietary scientific or technical information or data (including computer software and models); trade secrets; know-how; customer lists and pricing information; and any and all other information relating to customers, distributor and supplier lists, customer development programs, strategic alliances, costs, marketing, promotion, sales activity, financing methods and accounting, products, policies, practices, research, compilations of information, business plans or the business affairs of the Company generally or of any affiliate or subsidiary of the Company and any other information or procedures that are treated as or designated secret or confidential by the Company or by its directors, officers, customers or potential customers.  For purposes of this Agreement, the term “Confidential Information” shall not include any information that Celebrity can demonstrate: (1) was in his possession prior to such information being furnished thereto under the terms of this Agreement; provided, that the source of such information was bound by a confidentiality agreement with Celebrity or other continuing legal or fiduciary confidentiality obligation; (2) is now, or hereafter becomes, through no act or failure to act on the part of either party to this Agreement, generally known to the public; (3) is rightfully obtained from any person or entity (other than the parties hereto), without breach of any obligation; or (4) is independently developed without any use of, or reference to, any Confidential Information.

 

• Non-Competition. Except and to the extent as may expressly be agreed otherwise by the Company in a written amendment to this Agreement signed by the Company and Celebrity, during the Term, and for a period of twenty-four (24) months following the expiration or earlier termination of this Agreement, Celebrity will neither consult on, nor engage in, any business or activity that competes with the Business or with the business of any subsidiary or affiliate of the Company in the State of New York.  In addition, during the Term, and for a period of twenty-four (24) months following the expiration or earlier termination of this Agreement, Celebrity shall not, directly or indirectly, whether as an employer, consultant, contractor, agent, officer, principal, partner, stockholder, director or any other individual or representative capacity, engage or participate in any business that competes with the Business or with the business of any subsidiary or affiliate of the Company in the State of New York.  It is further acknowledged and agreed that any breach by Celebrity of this Section 8(f) shall cause irreparable damage to the Company, which damage may not be fully redressed by the payment of damages thereto.  Accordingly, the Company shall be entitled, in addition to any other right or remedy it may have under this Agreement, at law, in equity or otherwise, to seek an injunction in any jurisdiction, without the posting of any bond or other security, enjoining or restraining any such violation of the provisions of this Section 8(f).  The obligations of Celebrity pursuant to this Section 8(f) shall survive the expiration or earlier termination of this Agreement.

 

• Non-Solicitation. Except and to the extent as may expressly be agreed otherwise by the Company in a written amendment to this Agreement signed by the Company and Celebrity, Celebrity shall not, for a period of twenty-four (24) months following the expiration or earlier termination of this Agreement, either directly or indirectly, on his or for any other individual or entity, solicit, employ, endeavor to entice away from the Company or use the services of the Company or any of its agents, employees or contractors.  In the event of any breach by Celebrity of this Section 8(g), Celebrity shall pay to the Company an amount equal to the aggregate remuneration paid by the Company to that member of the Company’s staff for the year immediately prior to the date on which Celebrity employed or used the services of that member of the Company’s staff.

 

• Survival. The obligations of Celebrity pursuant to this Section 8 shall survive the expiration or earlier termination of this Agreement.

 

9. Termination.

 

• Termination by Mutual Consent. Either the Company or Celebrity may terminate the Term at any time upon mutual consent in writing signed by both parties.

 

• Termination for Cause. The Company may terminate the Term at any time, and without notice, for Cause (as such term is defined below).  For purposes of this Agreement, the term “Cause” shall mean: (i) a course of conduct amounting to gross incompetence not related to any physical or mental disability that renders Celebrity unable to render the Services; (ii) willful failure or refusal by Celebrity to perform his obligations under this Agreement or to follow the lawful directions of the authorized officers, agents or employees of the Company not inconsistent with the parties’ respective rights and obligations hereunder; (iii) embezzlement or other misappropriation of any property of the Company or of any affiliate or subsidiary thereof; (iv) unlawful appropriation of a corporate opportunity of the Company or of any affiliate or subsidiary thereof; (v) performance of an act that the Company reasonably determines is likely to bring discredit to the Company, impair the reputation of the Company, substantially and adversely affect the profits of the Company or conflict with the best interests of the Company; (vi) conviction of, or a guilty or nolo contendere plea to, a felony, or conviction of, or a guilty or nolo contendere plea to, a misdemeanor punishable by imprisonment or a fine of Five Thousand Dollars and 00/100 ($5,000.00) or more; (vii) improper disclosure of Confidential Information; or (viii) the failure by Celebrity to conduct at least three (3) User Interactions within any one (1)-year period during the Term.

 

• Termination Other than for Cause. Either the Company or Celebrity may terminate the Term without Cause as of any Anniversary Date (as such term is defined above) by written notice delivered by the terminating party to the other party not less than thirty (30) days nor more than ninety (90) days prior to such Anniversary Date.

 

• Termination Due to Death. The Term shall terminate upon the death of Celebrity.

 

• [Intentionally Omitted.]

 

• Termination Due to Insolvency or Bankruptcy. The Company may, at its option, terminate this Agreement upon: (i) the filing by or against Celebrity of any petition in bankruptcy; (ii) the issuance of a discharge order or adjudication of bankruptcy as to Celebrity; (iii) Celebrity’s insolvency, general assignment for the benefit of creditors or admission of inability to pay debts as they become due; or (iv) the issuance of any charging order, levy, garnishment, attachment, execution writ or lien, judgment lien, or other judicial or similar action against or upon Celebrity’s compensation under this Agreement.  Notwithstanding anything to the contrary contained in this Section 9, any and all obligations of the Company to pay accrued or deferred compensation shall be void and of no force and effect upon the termination of this Agreement pursuant to this Section 9(f).

 

• Effect of Termination. This Agreement shall terminate upon any termination of the Term, except that such termination shall not affect any rights accrued through such termination, including, but not limited to, Celebrity’s right to compensation to be paid after the Term with respect to Services rendered during the Term, as set forth in Section 4  Notwithstanding the foregoing or anything to the contrary contained herein, and to the extent as may otherwise be agreed to by the Company, Celebrity shall not be entitled to any compensation from the Company as a result of the termination of this Agreement, whether such termination is for Cause, other than for Cause, or voluntary on the part of Celebrity.  The Company shall have and retain all of its rights relating to or resulting from Services rendered by Celebrity within the scope of this Agreement and to all of the results and proceeds of said Services, including all of the incidental rights granted pursuant to this Agreement with respect to the enjoyment of such rights, results and proceeds.

 

10. [Intentionally Omitted.]

 

11. Representations and Warranties; Indemnification.

 

• Representations and Warranties. Celebrity hereby represents and warrants to the Company, and agrees that:

 

• (A) Celebrity has full right, power and authority to execute and perform this Agreement; (B) the execution and performance of this Agreement by Celebrity does not, and will not, violate: (1) any law, rule, regulation, order, writ, injunction or decree of any court or government, domestic or foreign, or of any commission, bureau or administrative agency; or (2) any agreement or instrument by which Celebrity is bound; (C) Celebrity has obtained any and all consents, from any person or entity, which are necessary for Celebrity to enter into this Agreement and perform his obligations hereunder; and (D) upon its execution, this Agreement shall constitute the binding obligation of Celebrity, enforceable against Celebrity in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by limitations on the availability of equitable remedies;

 

• at the time of execution of this Agreement, Celebrity is not a party to any employment agreement or subject to any confidentiality, non-disclosure, non-competition or non-solicitation obligations or agreements; and

 

• all Works (as such term is defined above) written or created by Celebrity and owned by the Company pursuant to Section 8(a) hereof shall be wholly original with the Company.

 

• Indemnification. Celebrity hereby agrees to indemnify the Company from and against any and all liabilities, damages, costs and expenses arising out of, or relating to, any breach by Celebrity of any of his representations, warranties or agreements contained herein, including, without limitation, those contained in this Section 11.  Celebrity hereby further agrees to defend and hold harmless the Company (which, for purposes of this Section 11(b), includes the Company’s affiliates, directors, officers, employees, licensees and agents), and to keep the Company indemnified, from and against any and all losses, damages, injury, costs and expenses, of whatever nature, suffered by the Company to the extent that the same are caused by, or related to: (i) any act or omission by Celebrity in respect of his rendering of the Services; or (ii) any other default by Celebrity in the performance of its obligations under this Agreement.

 

12. Miscellaneous Provisions.

 

• No Assignment by Celebrity. Neither this Agreement, nor any rights or obligations of Celebrity hereunder, may be assigned by Celebrity without the prior written consent of the Company in each instance.

 

• Integration and Modification; Covenants and Conditions. This Agreement contains the entire agreement between the parties and supersedes all prior agreements, undertakings, commitments and practices, whether oral or written.  This Agreement may not be modified or terminated, nor may any of its provisions be waived, except by a written instrument signed by the party(ies) against which enforcement is sought.  All of the terms and conditions of this Agreement are expressly intended to be construed as covenants as well as conditions.

 

• Data Protection. Each party shall ensure that, in the performance of its obligations under this Agreement, it will at all times comply with the relevant provisions of any federal or New York State data protection or privacy law, rule or regulation, including, without limitation and as applicable, the Health Insurance Portability and Accountability Act (Public Law 104-191) (specifically, the administrative simplification provisions of Title II of Subtitle F) (“HIPAA”); the Fair Credit Reporting Act (15 U.S.C. § 1681 a-x) (“FCRA”); the Fair and Accurate Credit Transactions Act (“FACTA”); the Gramm-Leach-Bliley Act (15 U.S.C. §§ 6801-6827) (“GLB”); the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) (“COPPA”); and the Privacy Act of 1974 (5 U.S.C. § 552a).  Notwithstanding the foregoing or anything to the contrary contained herein, in no event shall the Company be required to observe or comply with any data protection or privacy law, rule or regulation not enacted, adopted or promulgated by the United States government or the State of New York.

 

• Specific Performance. Celebrity is obligated under this Agreement to render services of a special, unique, unusual, extraordinary and intellectual character, thereby giving this Agreement peculiar value, so that the loss thereof could not be reasonably or adequately compensated in damages in an action at law.  Therefore, in addition to other remedies provided by law, the Company shall have the right during the Term to seek to compel specific performance by Celebrity and to seek to obtain injunctive relief against the performance of services elsewhere by Celebrity.

 

• No Waiver. The waiver by either party of a breach of any provision of this Agreement by the other shall not operate, or be construed as, a waiver of any subsequent breach of the same provision or of any other provision of this Agreement.

 

• Notices. All notices or other communications required or permitted to be given pursuant to the provisions of this Agreement shall be in writing and shall be considered as properly given if mailed by first-class United States mail, postage prepaid, registered or certified with return receipt requested, or sent by Federal Express or other reputable overnight delivery service, or by delivering same in person to the intended addressee, or by prepaid telegram or telecopy.  Notice so mailed or sent by Federal Express or other reputable overnight delivery service shall be effective upon delivery to the address specified herein.  Notice given in any other manner shall be effective only if and when received by the addressee.  For purposes of notice, the addresses of the parties shall be as set forth in the preamble hereof; provided, however, that any party hereto shall have the right to change its or his address for notice hereunder to any other location within the continental United States by the giving of thirty (30) days’ written notice to the other parties in the manner set forth hereinabove.

 

• Severability. If for any reason whatsoever, any one (1) or more of the provisions of this Agreement shall be held or deemed to be inoperative, unenforceable or invalid by a court or tribunal of competent jurisdiction in any particular case or in all cases, such circumstances shall not have the effect of rendering any of the other provisions of this Agreement inoperative, unenforceable or invalid.

 

• Governing Law/ Venue. This Agreement shall in all respects be construed, interpreted and enforced in accordance with, and governed by, the internal substantive laws of the State of New York applicable to agreements executed and to be wholly performed within such state, without regard to choice of law rules thereof.  Proper venue for any litigation or arbitration concerning this Agreement shall be in the County of New York, State of New York, and Celebrity hereby consents and submits to venue in such jurisdiction.

 

• Arbitration. Any controversy or dispute between the Company and Celebrity involving the construction or application of any of the terms, provisions or conditions of this Agreement shall, on the written request of either party served on the other, be submitted to arbitration, and such arbitration shall comply with and be governed by the Commercial Arbitration Rules of the American Arbitration Association then existing, and shall be conducted in the County of New York, State of New York.  The Company and Celebrity shall each appoint one (1) arbitrator to hear and determine the dispute and, if such arbitrators are unable to agree, then the two (2) arbitrators so chosen shall select a third impartial arbitrator, whose decision shall be final and conclusive upon both parties.

 

• Attorneys’ Fees; Costs. In the event that it should become necessary for either party to bring any action, including arbitration, either at law or in equity, to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover, as a separate element of such party’s damages, the costs of such action, including reasonable attorneys’ fees, and other costs incurred in commencing or defending such action.

 

• Counterparts. This Agreement may be executed in multiple original counterparts and/or by facsimile or electronic signature, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

• Successors; Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, heirs, legatees, executors, administrators and legal representatives.

 

• References to this Agreement; Headings; Construction. Unless otherwise indicated herein, the terms “Sections,” and “Clauses” mean and refer to the sections, subsections and clauses of this Agreement.  Words such as “herein,” “hereby,” “hereinafter,” “hereof,” “hereto” and “hereunder” refer to this Agreement as a whole, unless the context otherwise requires.  All headings contained in this Agreement are for convenience of reference only and are not intended to define or limit the scope or intent of this Agreement.  Common nouns and pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, singular or plural, as the identity of the person, entity, person, entities or other reference in the context requires.  Every covenant, term and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party hereto.  Any references to statutes, laws, or regulations, forms or schedules shall include all amendments, modifications or replacements thereof.  Whenever used herein, “or” shall include both the conjunctive and disjunctive, “any” shall mean “one or more” and “including” shall mean “including, without limitation”.

 

• Acknowledgment. The parties hereto acknowledge that they were represented, or had and waived the opportunity to be represented, by competent counsel in connection with the negotiation, drafting and execution of this Agreement and that this Agreement shall not be subject to the principle of construing its meaning against the party that drafted same.  Celebrity hereby acknowledges that, with respect to this Agreement, he shall rely solely on his own judgment and advisors in entering into this Agreement without relying in any manner on any statements, representations or recommendations of any person or entity, except and to the extent expressly provided herein.

 

• Recitals and Exhibits Incorporated. The recitals hereof, and the exhibits annexed hereto, are hereby incorporated by reference into this Agreement, with the same force and effect as if the same were fully set forth herein.