As a result of our review of your application, interview, and audition, the Club would like to offer you the opportunity to perform here. However, as you may know, there have been a number of lawsuits around the country in which exotic dance entertainers have complained that nightclubs where they performed had misclassified them as “independent contractors” instead of employees. We want YOU to make the decision as to the way that YOU want to perform at this Club. You can do so either as: 1) an INDEPENDENT PROFESSIONAL ENTERTAINER; or 2) an EMPLOYEE.
We have listed below some of the general distinctions between performing here as an Independent Professional Entertainer or as an Employee. This document is not intended to provide legal or tax advice, and is merely a summary of general information.
WE DO NOT, HOWEVER WANT YOU TO MAKE ANY RASH OR UNINFORMED DECISIONS CONCERNING THE MATTER SET OUT IN THIS DOCUMENT. YOU ARE ENCOURAGED TO CONSULT WITH ANY PERSON OF YOUR CHOICE, INCLUDING ATTORNEYS, ACCOUNTANTS, AND/OR TAX PROFESSIONALS, PRIOR TO MAKING THIS SELECTION. IN ADDITION, IF YOU WOULD LIKE TO SEE A COPY OF THE CONTRACT THAT THE CLUB USES FOR INDEPENDENT PROFSSIONAL ENTERTAINERS, (CALLED AN “ENTERTAINMENT AGREEMENT”) PRIOR TO MAKING YOUR DECISION, PLEASE JUST ASK AND WE WILL BE HAPPY TO PROVIDE YOU WITH A COPY TO REVIEW. FEEL FREE TO TAKE THESE DOCUMENTS HOME AND REVIEW THEM AT YOUR LEISURE BEFORE MAKING YOUR CHOICE.
After reviewing this information, we would like you to select the circumstances under which you want to perform at this Club. The Club management expresses no opinion on this matter, and we will be happy to have you perform here under either structure. This is your choice to make.
The Club will rely upon the selection you have made at the end of this document, and will offer you the opportunity to enter into the business arrangement that YOU selected.
Here are the general differences of the two distinct arrangements under which you can perform at this Club:
INDEPENDENT PROFESSIONAL ENTERTAINER STATUS
- As an Independent Professional Entertainer, you will enter into a written contract with the Club which will be for a certain period of time; which will specify in writing the rights, duties and obligations of both you and the Club; and which cannot be changed except upon the mutual agreement of both you and Club Management. The Club will not be able to terminate your contract during the specified period except upon the limited reasons identified in the contract.
- As an Independent Professional Entertainer, all of your earnings will come directly from your customers. YOU WILL NOT RECEIVE ANY PAY FROM THE CLUB, EITHER BY WAY OF AN HOURLY WAGE OR A SALARY. You will charge your customers for your dance performances; the money that you receive from them, either by way of dance fees (discussed in number 4 below) or tips (discussed in number 3 immediately below), will be your money that you will be able to take home at the end of the day. You will, however, pay certain fees to the Club for having the right to perform here. You can review a copy of the contract that the Club uses in order to see the current amount of those fees.
- As an Independent Professional Entertainer, all tips that you earn (gratuities paid by a customer over and above the established dance fees, as well as stage tips) are yours to keep. You will not be required to share your tips with, or “tip out,” anyone.
- As an Independent Professional Entertainer, the dance fees you charge your customers belong to you, and are yours to keep, subject only to certain lease fees.
As an Independent Professional Entertainer, you will be responsible for taking care of and paying all taxes and other withholdings due on your income.
As an Independent Professional Entertainer, you keep track of your own income. You do not report your dance fees or tip income to the Club (although the Club will be tracking the dance fees that you earn). You can take tax deductions for travel, advertising, makeup, costumes, props, tanning, health clubs, cosmetic surgery, etc., as allowed by law.
As an Independent Professional Entertainer, you may perform wherever you choose, and may perform at other clubs while you are under contract with this Club.
As an Independent Professional Entertainer, you will determine the days and time you perform at the Club consistent with the entertainment sessions for which you have contracted. In addition, you can work as many hours per day, over six (6) hours as you desire, although you will receive no “overtime” pay from the Club.
As an Independent Professional Entertainer, whether you take any breaks, when you take your breaks, and the number and duration of any breaks, are totally up to you. The only restriction on your breaks is that you should not, obviously, take a break during your stage performances.
As an Independent Professional Entertainer, you can perform for whomever you choose, and can reject any customers you want.
As an Independent Professional Entertainer, you will never be required by the Club to give “free” dances to anyone.
As an Independent Professional Entertainer, you will never be required to engage in any Club promotions or advertising.
As an Independent Professional Entertainer, you will have the freedom to choose your own costumes, and you will be required to provide your own costumes. However, you will be expected to appear in costuming consistent with industry standards for professional entertainers performing in upscale, high-end, entertainment facilities.
As an Independent Professional Entertainer, you will determine your own appearance.
As an Independent Professional Entertainer, you will not be given any training. You will be expected to come to the Club with the necessary skills to perform as a professional exotic dance entertainer. You may perform in any lawful manner of your own choosing and you will not have to meet any type of “performance standards” set by the Club.
As an Independent Professional Entertainer, if you are injured at the Club, you will not be covered by Workers’ Compensation Insurance, but you can sue the Club, if it is at fault, and your only limits of recovery are those that may be imposed by state law. In addition, you are free to opt in to the state’s Worker’s Compensation coverage at your own expense.
As an Independent Professional Entertainer, you will not be entitled to unemployment compensation benefits either if your contract expires or if the Club terminates it early for any of the reasons listed in the agreement.
As an Independent Professional Entertainer, the Club will not offer you any form of health insurance.
By selecting Independent Professional Entertainer status, you will be acknowledging that you understand that you are not entitled to benefits under the Fair Labor Standards Act (minimum wage and overtime laws, among other things), the National Labor Relations Act, Equal Employment Opportunity laws, and other laws that protect employees.
- As an Employee, you will not have any contract with the Club. Rather, your employment will be “at will,” meaning that your employment can be terminated by the Club (or by you) at any time, without cause and without prior notice. The Club will have the right to change the terms of your employment at its discretion at any time.
As an Employee, you will be paid every other Friday on an hourly basis at a rate equal to the current applicable tip-credited minimum wage. Under such an employment relationship, you would be paid, in accordance with § 203(m) of the Fair Labor Standards Act and applicable state law, the legally permitted “tip-credited” wage ($2.13 per hour at the time of the drafting of this document, and as adjusted by applicable law). The Club would then increase your wages by taking the allowable tip-credit ($5.12 per hour at the time of the drafting of this document, and as adjusted by applicable law), which cannot exceed the amount of tips actually received and retained by you. If, in a workweek, you did not earn at least the full minimum wage through wages and retained tips ($7.25 per hour at the time of the drafting of this document, and as adjusted by applicable law), the Club would pay you the difference so that you would earn the full minimum wage for each hour worked. These “tip credit” provisions would not apply unless you were informed of them.
As an Employee, you would be entitled to retain all tips that you collect (gratuities paid by a customer over and above the posted dance fees as well as stage tips, but not the mandatory dance fees you charge for personal performances – see number 4 below), although you will be required to pay 15% of your tips into a “tip pool” that would be distributed to non-dancer regularly tipped employees.
As an Employee, the dance fees you charge customers belong to the Club. You will have to turn them over to Management before the end of your shift.
As an Employee, the Club will take out of your pay all taxes and other withholdings required by law.
As an Employee, you must, by law, report ALL of your tip income to the Club. You cannot deduct from your taxes the incidental expenses of your employment. In addition, the Club is required by law to pay to the IRS, out of the wages due to you, taxes owed on your tip income. If you make a substantial amount in tips, this could then result in your receiving a “zero” paycheck. If you have questions about this, consult an accountant.
As an Employee, you will be prohibited from performing at other establishments that are in competition with the Club.
As an Employee, the Club will select your schedule (both days and times with input from you. The final decision of your work schedule, however, will be made by Club management based upon consideration of its business needs, such as the expected number of entertainers and guests, etc. The Club will generally not permit you to work any “overtime.” However, at the discretion of Management you may be required to work overtime, and you will be paid time and one-half for any excess hours that you work as required by law.
As an Employee, the Club will determine the time, number and duration of your breaks, consistent with state law.
As an Employee you will be required to perform for all customers.
As an Employee, you may, at the direction of Management, be required to give “free” dances to certain customers.
As an Employee, you may be required to participate in various Club promotions and advertising both on and off the Club premises.
As an Employee, you will be required to wear the costumes selected by the Club. The Club will provide to you, free of charge, two costumes every two months and a pair of performance footwear every three months.
As an Employee, your appearance must comply with the Club standards. Management will tell you how to wear your hair, and how your makeup should look.
As an Employee, you will be required to undergo dancer training, you must perform consistent with the standards set in that training, and you will be expected to meet certain dance minimum quotas, in order to be able to keep your job.
As an Employee, if you are hurt at work your sole recourse against the Club, under most circumstances, will be for “Worker’s Compensation” benefits. You will not have to prove the Club was at fault, but you will be subject to the limits of that coverage.
As an Employee, if you are fired or laid off, you may be entitled – if you have worked a sufficient period of time and satisfied other legal requirements – to unemployment compensation benefits. These benefits are for a fixed period of time and are set by law.
As an Employee, if the Club is at any time required to offer certain of its employees health insurance and you qualify, you may, but need not, accept such health insurance so long as you agree to pay the policy premiums up to a maximum of 8.0% of your total household income (wages and tips).
As an Employee, you will be entitled to certain legal protections under the Fair Labor Standards Act, the National Labor Relations Act, the Equal Employment Opportunity Act, and other laws that protect employees. You can find out about your rights as an employee by going to, among other places, the website at www.dol.gov/esa/whd/flsa, and www.nclabor.com, and/or by reviewing the employment law posters that are displayed in the Club (if you have any questions as to where they are located, please ask a manager and he or she will direct you to them). You may also be entitled, depending upon the amount of time you work, to other employee benefits. If you have any questions about this, ask a manager.
DATED: November 26, 2021
NOTICE: THIS IS A LEGAL CONTRACT. DO NOT SIGN IT UNLESS YOU FULLY UNDERSTAND AND AGREE TO ALL OF ITS TERMS (AND PLEASE NOTE THAT THIS CONTRACT CONTAINS AN AGREEMENT TO INDIVIDUALLY ARBITRATE DISPUTES, WHICH IS FOUND IN PARAGRAPH 21). IF YOU HAVE ANY QUESTIONS, FEEL FREE TO TALK TO THE CLUB’S GENERAL MANAGER. WE SUGGEST THAT BEFORE SIGNING, YOU HAVE THIS CONTRACT REVIEWED BY AN ATTORNEY, ACCOUNTANT, OR OTHER PERSON OF YOUR CHOICE. IN ADDITION, EVEN IF YOU PREVIOUSLY SIGNED A SIMILAR CONTRACT, READ THIS ONE OVER CAREFULLY AS IT MAY BE DIFFERENT FROM THOSE YOU MAY HAVE SIGNED IN THE PAST.
This Entertainment Agreement (“Agreement”) is entered into by 200 West Woodlawn, Inc dba The Gentlemen's Club (“Club”) and “Entertainer” (the “parties,” with each being a “party”) to permit Entertainer to use certain portions of the “Premises.” The “Club,” “Entertainer,” and “Premises” are identified on the last page of this Agreement.
PURPOSE OF AGREEMENT:
The Club operates an entertainment facility on the Premises. Entertainer, who is engaged in the independently established trade and occupation of professional exotic dance entertainers and who runs her own business that provides such entertainment services and is licensed to do so (if legally required), desires to obtain the right to use certain areas of the Premises for her professional activities.
TERMS OF LEASE:
Club and Entertainer agree as follows:
1. Use of Premises/Term. The Club grants to Entertainer the right, during normal business hours, to jointly, along with other entertainers, use the stage areas and certain other portions of the Premises designated by the Club. This Lease shall be for the period commencing on the execution date and shall terminate on the day preceding the first anniversary of the execution date. The license shall be automatically extended for successive periods equal to the current term unless terminated by either party.
2. Club’s Additional Obligations. The Club shall:
A. Provide, at its own expense, music for use on the Premises, lighting, and dressing room facilities, and pay all copyright fees due relative to that music; and
B. Reasonably advertise the business for the benefit of both Entertainer and the Club. This does not, however, prohibit Entertainer from advertising her services in any manner she so desires. Entertainer may not use logos, trademarks or other intellectual property of the Club without prior written approval from the Club.
3. Assignment. This Lease is for Entertainer’s personal skills and artistic talent. Consequently, Entertainer has no right to assign any of her rights or obligations in this Lease to any other person without the written consent of the Club. However, Entertainer has the right to substitute the services of any licensed (if legally required) entertainer who has also entered into an Entertainer Agreement with the Club.
4. Non-Exclusivity. Entertainer’s obligations under this Agreement are non-exclusive. She is free to perform at any other businesses or venues.
5. Use of Premises. Entertainer agrees to:
A. Perform clothed, topless or nude dance entertainment (as legally permitted), and to perform in stage promotion rotations for a period of no less than six (6) hours;
B. Obtain, keep in effect, and have in her possession at all times while she is on the Premises, any and all required licenses, health cards, and/or permits;
C. Read, understand, comply with, and not violate, any and all laws that apply to Entertainer’s conduct while on the Premises, and provide only lawful entertainment services (violations of the law are beyond the scope of authority under, and constitute a breach of, this Agreement);
D. Maintain accurate daily records of all income, including tips, earned while performing on the Premises, in accordance with all taxation laws; and
E. Pay for any damages she causes to the Premises and/or to any of the Club’s personal property.
6. Compliance with Rules. The Club may impose rules upon the use of the Premises by Entertainer as the Club deems necessary in order to ensure that: A) no damage to the Club’s property occurs; B) the Premises are used in a safe fashion for the benefit of all entertainers, patrons, employees and others; and C) no violations of the law occur. Entertainer agrees to comply with all such rules, as well as with all rules established by a majority vote of entertainers.
7. Nature of Performance and Costuming. The Club has no right to direct or control the nature, content, character, manner or means of Entertainer’s entertainment services, her performances, or the costumes/wearing apparel she selects, outside of the following: apparel must comply with all applicable laws and shall be in accordance with industry standards for professional entertainers performing in upscale, high-end, entertainment facilities,orwith the theme, nature or aesthetic of the club in which she's performing. Entertainer shall supply all of her own costumes.
8. Intellectual Property.Entertainer retains all intellectual property rights to her performances, stage name and likeness, unless assigned by her in writing.
9. Nature of Business. Entertainer understands: A) That the nature of the Club’s business is adult entertainment; and B) that she may be subjected to either full or partial nudity (primarily female), explicit language, advances by customers, depictions or portrayals of a sexual nature, and to similar types of behavior. Entertainer represents that she is not and will not be offended by, and she assumes any and all risks associated with, being subjected to such matters.
10. Privacy. Privacy and personal safety are important concerns to Entertainer. Accordingly, the Club shall not knowingly disclose to any persons who are not associated with the Club, Entertainer’s legal name, address, or telephone number, except upon written authorization of the Entertainer or as required by law. The Club agrees to notify Entertainer upon receipt of any request for information or documents concerning her, unless prohibited by law.
11. Entertainment Fees/“Scrip”. In consultation with the entertainers who use space on the Premises, the Club shall establish fixed fees as the price for certain personal performances (“Entertainment Fees”). Entertainer agrees not to charge a customer more or less than the fixed price for any such performance unless the Entertainer notifies the Club in writing of any charges to her customers of a lower amount. Nothing in this Agreement, however, limits Entertainer from receiving tips over-and-above the established price for such performances (Entertainer is not required to share her tips with anyone else). THE PARTIES SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ENTERTAINMENT FEES ARE NEITHER TIPS NOR GRATUITIES, BUT ARE, RATHER, MANDATORY CHARGES TO THE CUSTOMER AS THE PRICE FOR PURCHASING A PERSONAL ENTERTAINMENT PERFORMANCE.
The Club permits the use of a payment certificates purchased by patrons on credit and/or debit cards (referred to here as “Scrip”). Scrip is only to be used for the payment of Entertainment Fees, and Entertainer is under no obligation to use or accept Scrip as payment of her personal entertainment performances. Scrip certificates have no cash value. Entertainer understands and acknowledges that the Club, at its sole discretion, may deny a patron the ability to purchase Scrip if the Club feels the transaction presents a high risk of dispute, or if the Club deems that the transaction is not being made in the spirit of responsible selling.
For all Scrip certificates redeemed by Entertainer, the Club shall remit to Entertainer the sums set forth on the SPECIFICATIONS section of this Agreement which are calculated based upon: (1) The costs associated in administering the Scrip program; (2) the portion of the credit card transaction fees for the Scrip purchases allocated to the monies remitted to Entertainer; (3) an estimate of revenues remitted by the Club to Entertainer for fraudulent Scrip; and (4) the estimated credit card chargebacks allocated to the monies received by Entertainer through Scrip.
12. Business Relationship of Parties.
A. The parties acknowledge that the business relationship created between them is that of a legal “licensing” arrangement where Entertainer is paying for the right to use the Premises for her own independent business activities. THE PARTIES SPECIFICALLY DISAVOW ANY EMPLOYMENT RELATIONSHIP BETWEEN THEM, and this Agreement shall not be interpreted as creating an employer/employee relationship or any contract for employment. ENTERTAINER UNDERSTANDS THAT THE CLUB WILL NOT PROVIDE TO HER ANY WAGE (WHETHER HOURLY OR OTHERWISE), OVERTIME PAY, EXPENSES, OR OTHER EMPLOYEE-RELATED BENEFITS.
B. The Club and Entertainer acknowledge that if the relationship between them was that of employer and employee, the Club would be required to collect, and would retain, all Entertainment Fees paid by customers to Entertainer – ENTERTAINER SPECIFICALLY ACKNOWLEDGING THAT IN AN EMPLOYER/EMPLOYEE RELATIONSHIP ALL ENTERTAINMENT FEES WOULD BE, BOTH CONTRACTUALLY AND AS A MATTER OF LAW, THE PROPERTY OF THE CLUB AND NOT THE PROPERTY OF ENTERTAINER. ENTERTAINER’S RIGHT TO OBTAIN AND KEEP ENTERTAINMENT FEES IS SPECIFICALLY CONTINGENT UPON THE BUSINESS RELATIONSHIP OF THE PARTIES BEING THAT OF A LICENSING STRUCTURE.
Under such an employment relationship, Entertainer would be paid, in accordance with § 203(m) of the Fair Labor Standards Act and applicable state law, the legally permitted “tip-credited” wage ($2.13 per hour at the time of the drafting of this Agreement, and as adjusted by applicable law). The Club would then increase Entertainer’s wages by the amount of tip income she earned and retained, up to the allowable tip credit ($5.12 per hour at the time of the drafting of this Agreement, and as adjusted by applicable law), which could not exceed the amount of tips actually and ultimately received and retained by the Entertainer; with Entertainer agreeing to provide for each pay period a signed certification of all tips received and retained. If, in a workweek, Entertainer did not earn at least the full minimum wage through wages and retained tips, the Club would pay Entertainer the difference so that she earned the full minimum wage for each hour worked ($7.25 per hour at the time of the drafting of this Agreement, and as adjusted by applicable law). These “tip credit” provisions would not apply unless Entertainer was informed of them; this document serving as such notice. Entertainer would further be entitled to retain all tips - but not Entertainment Fees - that she might collect (the Club would not retain any portion of her tip income), although she would be required to pay 15% of her tips into a “tip pool” that would be distributed to non-dancer regularly tipped employees.
The parties additionally acknowledge that were the relationship between them to be that of employer/employee, Entertainer’s employment would be “at will” (she could be fired at any time without cause and without prior warning), and the Club could control, among other things, Entertainer’s: Work schedule and hours of work; job responsibilities; physical appearance (such as make-up, hairstyle, etc.); costumes/wearing apparel; music; work habits; the selection of her customers; the nature, content, character, manner and means of her performances; and her ability to perform at other locations. ENTERTAINER REPRESENTS THAT SHE DESIRES TO BE ABLE TO MAKE ALL OF THESE CHOICES HERSELF, WITHOUT THE CONTROL OF THE CLUB, AND THE PARTIES AGREE THAT ALL SUCH DECISIONS ARE EXCLUSIVELY RESERVED TO HER CONTROL.
ENTERTAINER FURTHER REPRESENTS THAT SHE DOES NOT DESIRE TO PERFORM AS AN EMPLOYEE OF THE CLUB UNDER THE TERMS OUTLINED ABOVE, BUT, RATHER, DESIRES TO PERFORM AS A TENANT CONSISTENT WITH THE OTHER PROVISIONS OF THIS AGREEMENT.
C. If any court, tribunal, arbitrator, or governmental agency determines that the relationship between the parties is one of employment and that Entertainer is then entitled to the payment of wages from the Club, all of the following shall apply:
i. In order to comply with applicable tax laws and to assure that the Club is not unjustly harmed and that Entertainer is not unjustly enriched by the parties having financially operated pursuant to this Agreement, the parties agree that Entertainer shall surrender, reimburse and remit to the Club, all Entertainment Fees received by her during all periods in which the court, tribunal, arbitrator, or governmental agency finds her to have been the employee of the Club (the “Reclassification Period”) -- all of which would otherwise have been collected and kept by the Club had they not been retained by Entertainer under the terms of this Agreement;
ii. Entertainer shall immediately remit to the Club 15% of all tips that she earned during the Reclassification Period, which shall be distributed to non-dancer regularly tipped employees, and shall provide to the Club a signed and legally compliant certification of all tip income earned by her during the Reclassification Period;
iii. Any Entertainment Fees from the Reclassification Period that Entertainer does not return to the Club shall be deemed service charges paid by the customer and shall be accounted for by the Club as such. The Club shall then be entitled to a credit against any wages due in the amount of the Entertainment Fees retained by Entertainer, and such fees shall therefore constitute wages paid from the Club to Entertainer. In such circumstances, the Club shall immediately submit to the IRS and applicable state taxing authorities all necessary filings regarding such income; and
iv. The relationship of the parties shall immediately convert to an employment arrangement under the terms in subparagraph 12(B).
D. If at any time Entertainer believes that - - irrespective of the terms of this Agreement - - she is being treated as an employee by the Club or that her relationship with the Club is truly that of an employee, Entertainer shall immediately, but in no event later than three business days thereafter: i) provide notice to the Club in writing of her demand to be fully treated as an employee consistent with the terms of subparagraph 12(B) and applicable law; and ii) begin reporting all of her tip income to the Club on a daily basis (such tip reporting being legally required of all regularly tipped employees). The Club shall then convert Entertainer to an employee consistent with the provisions of subparagraph 12(B) of this Agreement and the “Employee Status” provisions of the Business Status Selection by Entertainer document previously signed by Entertainer.
E. If at any time during this Agreement, Entertainer desires to convert to being an employee-entertainer, Entertainer shall notify the Club of her desire in writing, and the Club shall thereafter convert her to an employee consistent with the provisions of subparagraph 12(B) of this Agreement and the “Employee Status” provisions of the Business Status Selection by Entertainer document previously signed by Entertainer.
13. Taxes.Entertainer is exclusively responsible for, and shall pay, all applicable taxes and contributions imposed upon any income earned by Entertainer while performing on the Premises.
14. Scheduling of Performance Dates.Entertainer shall determine the days when she desires to utilize the Premises. Entertainer shall select, at least one week in advance, the days she desires to utilize the Premises during the following week. Entertainer may be permitted to use space on the Premises on days and during weeks when she has not scheduled herself to perform, subject to space availability, and provided she performs no less than six (6) hours.
Each entertainment session selected by Entertainer shall be referred to as one “Show Date.”
15. License Fees. Entertainer agrees to pay a license fee (“License Fee”) for each Show Date that she performs in accordance with Exhibit “A” attached hereto. The License Fee shall be paid by the end of the Show Date for which the fee is due.
16. Material Breach by Club. The Club materially breaches this Agreement by failing to provide to Entertainer access to the designated portions of the Premises on any day she schedules, or by willfully violating any law governing the operation of the Club. The Club shall not be liable for acts of G-d or other causes beyond its reasonable control.
17. Material Breach by Entertainer. Entertainer materially breaches this Agreement by failing to maintain any and all required licenses and/or permits; willfully violating any law while on the Premises; failing to appear for a scheduled Show Date on two or more occasions in any one calendar month; failing to pay any License Fee when due; or claiming the business relationship with the Club as being other than that of a licensing arrangement.
18. Termination/Breach. Either party may terminate this Agreement, without cause, upon thirty (30) days’ notice. Upon material breach, the non-breaching party may terminate this Agreement upon twenty-four (24) hours’ notice or as otherwise may be provided by law. Nothing in this paragraph, however, shall allow Entertainer to perform on the Premises without a valid license or permit, if applicable, or to continue to engage in conduct in violation of any laws.
19. Severability. If any provision of this Agreement is declared to be illegal or unenforceable, this Agreement shall, to the extent possible, be interpreted as if that provision was not a part of this Agreement; it being the intent of the parties that such part be, to the extent possible, severable from this Agreement as a whole. Nevertheless, in the circumstance of a judicial, arbitration, or administrative determination that the business relationship between Entertainer and the Club is something other than that of a licensing structure, the relationship between Entertainer and the Club shall be governed by the provisions of subparagraph 12(B).
20. Governing Law. This Agreement shall be interpreted pursuant to the laws of the State of North Carolina, except as may be preempted by the Federal Arbitration Act.
21. ARBITRATION/WAIVER OF CLASS AND COLLECTIVE ACTIONS/ATTORNEY FEES AND COSTS.
NOTE: PROCEEDINGS IN ADMINISTRATIVE AGENCIES, SUCH AS THE NATIONAL LABOR RELATIONS BOARD, THE DEPARTMENT OF LABOR, AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ARE NOT GOVERNED OR BARRED BY THE PROVISIONS IN THIS PARAGRAPH 21.
A. ANY CONTROVERSY, DISPUTE, OR CLAIM ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT, ITS TERMINATION, ENTERTAINER PERFORMING AND/OR WORKING AT THE CLUB AT ANY TIME, OR THE TERMINATION OF SUCH PERFORMANCES OR WORK FOR ANY REASON (ALL SUCH CONTROVERSIES, DISPUTES, AND CLAIMS BEING REFERRED TO COLLECTIVELY IN THIS PARAGRAPH 21 SIMPLY AS A “CLAIM,” OR AS “CLAIMS”), SHALL BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION HELD PURSUANT TO THE FEDERAL ARBITRATION ACT (THE “F.A.A.”).
THIS REQUIREMENT TO ARBITRATE ANY AND ALL NON-ADMINISTRATIVE CLAIMS APPLIES REGARDLESS OF WHETHER SUCH A CLAIM IS BASED UPON CONTRACT, TORT OR OTHER COMMON LAW, STATUTE, REGULATION, ORDINANCE, OR OTHERWISE, AND REGARDLESS OF WHETHER A CLAIM BY ONE PARTY IS ONLY AGAINST THE OTHER PARTY OR IS AGAINST PERSONS OR ENTITIES ASSOCIATED WITH THE OTHER PARTY (INCLUDING BUT NOT LIMITED TO PAST, PRESENT, AND FUTURE OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, CONSULTANTS, AND/OR AGENTS).
THE ARBITRATION PROCEEDING SHALL OCCUR IN THE STATE OF NORTH CAROLINA, AND SHALL BE ADMINISTERED BY AN INDEPENDENT NEUTRAL ARBITRATOR AGREED UPON BY THE PARTIES, WHO SHALL BE PERMITTED TO AWARD -- SUBJECT ONLY TO THE RESTRICTIONS CONTAINED IN THIS PARAGRAPH 21 -- ANY RELIEF AVAILABLE IN A COURT. THE PARTIES WAIVE ANY RIGHT TO LITIGATE SUCH CLAIMS IN A COURT OF LAW, AND WAIVE THE RIGHT TO TRIAL BY JURY.
NO DEMAND FOR ARBITRATION MAY BE MADE AFTER THE DATE WHEN THE COMMENCEMENT OF LEGAL OR EQUITABLE PROCEEDINGS BASED ON SUCH A CLAIM WOULD BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.
THE ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY DISPUTES OVER THE FORMATION, VALIDITY, INTERPRETATION, AND/OR ENFORCEABILITY OF ANY PART OF THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISIONS CONTAINED IN THIS PARAGRAPH 21.
EACH PARTY SHALL INITIALLY BE RESPONSIBLE FOR THEIR OWN ATTORNEY FEES AND OUT-OF-POCKET COSTS ASSOCIATED WITH THE ARBITRATION PROCEEDING. THE ACTUAL COSTS OF ARBITRATION (THE ARBITRATOR’S FEES AND RELATED EXPENSES) SHALL BE BORNE EQUALLY BY THE ENTERTAINER AND THE CLUB UNLESS APPLICABLE LAW REQUIRES THE ARBITRATOR TO IMPOSE A DIFFERENT ALLOCATION.
EITHER PARTY MAY REQUEST AN ARBITRATOR EXPERIENCED IN THE ADULT ENTERTAINMENT INDUSTRY. THE PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THAT LEVEL OF DUE PROCESS REQUIRED FOR ARBITRATIONS. THE ARBITRATOR’S DECISION SHALL BE FINAL, SUBJECT ONLY TO REVIEW UNDER THE F.A.A., OR AS PROVIDED FOR IN THIS PARAGRAPH 21. ANY AWARD BY THE ARBITRATOR MAY BE ENTERED AS A JUDGMENT IN ANY COURT HAVING JURISDICTION.
B. ENTERTAINER AND THE CLUB AGREE THAT ANY AND ALL CLAIMS THAT THEY MAY HAVE AGAINST THE OTHER (AND/OR AGAINST ANY PERSONS OR ENTITIES ASSOCIATED WITH THE OTHER PARTY), SHALL BE BROUGHT AND MAINTAINED INDIVIDUALLY BY THAT PARTY IN ARBITRATION; THAT THEY WILL NOT CONSOLIDATE THEIR CLAIMS WITH THOSE OF ANY OTHER PERSON OR ENTITY; THAT THEY WILL NOT SEEK CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION TREATMENT FOR ANY CLAIM; AND THAT THEY WILL NOT PARTICIPATE, IN ORDER TO RESOLVE A CLAIM, IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST THE OTHER PARTY (AND/OR AGAINST PERSONS OR ENTITIES ASSOCIATED WITH THE OTHER PARTY).
ACCORDINGLY, THE ARBITRATOR SHALL NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIM, AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE, CLASS, OR COLLECTIVE PROCEEDINGS. IN THE EVENT AN ACTION IS BROUGHT IN ARBITRATION ON BEHALF OF MULTIPLE INDIVIDUALS AND/OR ENTITIES, THE ARBITRATOR SHALL HAVE ONLY THE AUTHORITY TO DIVIDE THE ACTION INTO INDIVIDUAL PROCEEDINGS; EACH THEN TO BE HEARD BY AN INDIVIDUAL ARBITRATOR.
SHOULD AN ARBITRATOR RULE ON WHETHER A MATTER MAY PROCEED AS A REPRESENTATIVE, CLASS OR COLLECTIVE ARBITRATION (A “SCOPE OF ARBITRATION RULING”), THE ARBITRATOR SHALL IMMEDIATELY STAY ALL PROCEEDINGS FOR A PERIOD OF THIRTY (30) DAYS FOLLOWING SUCH A RULING TO PERMIT ANY PARTY TO MOVE A COURT OF COMPETENT JURISDICTION TO CONFIRM OR VACATE THE SCOPE OF ARBITRATION RULING. IF, AT THE END OF SUCH 30 DAY PERIOD, NO PARTY HAS MOVED FOR JUDICIAL REVIEW, THE ARBITRATOR SHALL PROCEED WITH THE ARBITRATION. HOWEVER, IF EITHER PARTY HAS SOUGHT JUDICIAL REVIEW DURING THAT PERIOD, THE ARBITRATION SHALL BE STAYED UNTIL THE RULING OF THE COURT AND THE CONCLUSION OF ANY AND ALL APPEALS FROM SUCH RULING.
IN THE EVENT THAT EITHER ENTERTAINER OR THE CLUB ARE MADE, AT ANY TIME, A MEMBER OF A CLASS IN ANY PROCEEDING BARRED BY THE PROVISIONS OF THIS PARAGRAPH 21(B), THEY AGREE TO “OPT OUT” AT THE FIRST OPPORTUNITY.
C. IF AT ANY TIME THE PROVISIONS OF PARAGRAPH 21(B) THAT REQUIRE CLAIMS ONLY TO BE BROUGHT ON AN INDIVIDUAL BASIS ARE RULED TO BE UNENFORCEABLE, THEN THE ARBITRATION MAY PROCEED AS AN OPT IN COLLECTIVE ACTION GENERALLY UTILIZING THE PROCEDURES ADOPTED UNDER 29 U.S.C. § 216(b) OF THE FAIR LABOR STANDARDS ACT FOR DETERMINING THE PARTICIPANTS IN SUCH AN ACTION.
UNDER NO CIRCUMSTANCE SHALL AN ARBITRATION PROCEED ON A CLASS ACTION, OPT OUT, BASIS; THE PARTIES SPECIFICALLY INTENDING THAT IF CLASS ACTION PROCEEDINGS ARE DEEMED TO BE LEGALLY REQUIRED, THEN THEY AND ALL OTHER RELATED CLAIMS SHALL BE ADMINISTERED BY A COURT OF LAW.
D. SHOULD A PARTY SEEK EMERGENCY RELIEF TO PREVENT OR ABATE ALLEGED IRREPARABLE HARM AND THE PARTIES BE UNABLE TO AGREE TO AN ARBITRATOR WITHIN THREE (3) BUSINESS DAYS, THE PARTIES SHALL JOINTLY PETITION A COURT OF COMPETENT JURISDICTION FOR APPOINTMENT OF A NEUTRAL ARBITRATOR TO PRESIDE OVER THE REQUEST FOR EMERGENCY RELIEF.
E. IN THE EVENT THAT ANY PARTY CHALLENGES, OR IS REQUIRED TO INITIATE PROCEEDINGS TO ENFORCE, THE ARBITRATION REQUIREMENTS OF THIS PARAGRAPH 21, THE PREVAILING PARTY TO SUCH CHALLENGES/ENFORCEMENT PROCEEDINGS SHALL BE ENTITLED TO AN AWARD OF ALL COSTS, INCLUDING REASONABLE ATTORNEY FEES, INCURRED IN LITIGATING SUCH ISSUES.
F. ANY RULING ARISING OUT OF A CLAIM BETWEEN THE PARTIES SHALL, TO THE EXTENT NOT PRECLUDED BY LAW, AWARD COSTS INCURRED FOR THE PROCEEDINGS, INCLUDING REASONABLE ATTORNEY FEES, TO THE PREVAILING PARTY.
G. THE ARBITRATION PROVISIONS OF THIS PARAGRAPH 21 SUPERSEDE ANY PRIOR ARBITRATION AGREEMENT(S) ENTERED INTO BETWEEN THE CLUB AND THE ENTERTAINER.
ALL PORTIONS OF THIS PARAGRAPH 21 SURVIVE EXPIRATION, TERMINATION, AND/OR CANCELLATION OF THIS AGREEMENT.
22. Superseding Effect. The execution of this Agreement by the parties shall terminate any similar Agreement or other similar contract currently in effect between the parties.
This Agreement is immediately terminated if Entertainer is not of legal age. Entertainer specifically represents that she is of lawful age or older, that she has provided appropriate identification verifying her age, and that such identification is valid and authentic.
BY SIGNING THIS DOCUMENT, ENTERTAINER REPRESENTS THAT SHE HAS RECEIVED A COPY OF, AND HAS FULLY READ, THIS AGREEMENT; THAT SHE UNDERSTANDS AND AGREES TO BE BOUND BY ALL OF ITS TERMS; AND THAT SHE HAD OPPORTUNITIES TO BOTH ASK QUESTIONS REGARDING THIS AGREEMENT’S CONTENT AND HAVE IT REVIEWED BY PERSONS OF HER CHOICE, INCLUDING BY ATTORNEYS AND ACCOUNTANTS.
ACCIDENT WAIVER AND RELEASE OF LIABILITY FORM
I HEREBY ASSUME ALL OF THE RISKS OF PARTICIPATING IN ANY/ALL ACTIVITIES ASSOCIATED WITH THIS EVENT, including by way of example and not limitation, any risks that may arise from negligence or carelessness on the part of the persons or entities being released, from dangerous or defective equipment or property owned, maintained, or controlled by them, or because of their possible liability without fault.
I certify that I am physically fit, have sufficiently prepared or trained for participation in this activity, and have not been advised to not participate by a qualified medical professional. I certify that there are no health-related reasons or problems which preclude my participation in this activity.
I acknowledge that this Accident Waiver and Release of Liability Form will be used by the event holders, sponsors, and organizers of the activity in which I may participate, and that it will govern my actions and responsibilities at said activity.
In consideration of my application and permitting me to participate in this activity, I hereby take action for myself, my executors, administrators, heirs, next of kin, successors, and assigns as follows:
(A) I WAIVE, RELEASE, AND DISCHARGE from any and all liability, including but not limited to, liability arising from the negligence or fault of the entities or persons released, for my death, disability, personal injury, property damage, property theft, or actions of any kind which may hereafter occur to me including my traveling to and from this activity, THE FOLLOWING ENTITIES OR PERSONS: The Soil Ecology Society, (SES) and/or their directors, officers, employees, volunteers, representatives, and agents, and the activity holders, sponsors, and volunteers;
(B) INDEMNIFY, HOLD HARMLESS, AND PROMISE NOT TO SUE the entities or persons mentioned in this paragraph from any and all liabilities or claims made as a result of participation in this activity, whether caused by the negligence of release or otherwise.
I acknowledge that SES and their directors, officers, volunteers, representatives, and agents are NOT responsible for the errors, omissions, acts, or failures to act of any party or entity conducting a specific activity on their behalf.
I acknowledge that this activity may involve a test of a person's physical and mental limits and carries with it the potential for death, serious injury, and property loss. The risks include, but are not limited to, those caused by terrain, facilities, temperature, weather, condition of participants, equipment, vehicular traffic, lack of hydration, and actions of other people including, but not limited to, participants, volunteers, monitors, and/or producers of the activity. These risks are not only inherent to participants, but are also present for volunteers.
I hereby consent to receive medical treatment which may be deemed advisable in the event of injury, accident, and/or illness during this activity.
I understand while participating in this activity, I may be photographed. I agree to allow my photo, video, or film likeness to be used for any legitimate purpose by the activity holders, producers, sponsors, organizers, and assigns.
The Accident Waiver and Release of Liability Form shall be construed broadly to provide a release and waiver to the maximum extent permissible under applicable law.
I CERTIFY THAT I HAVE READ THIS DOCUMENT AND I FULLY UNDERSTAND ITS CONTENT. I AM AWARE THAT THIS IS A RELEASE OF LIABILITY AND A CONTRACT AND I SIGN IT OF MY OWN FREE WILL.
GENTLEMEN’S CLUB – CHARLOTTE, NORTH CAROLINA
EXHIBIT A TO ENTERTAINER AGREEMENT
The parties acknowledge and agree that the following terms are incorporated into the Entertainment Agreement entered into between Entertainer and Club:
1. Pursuant to paragraph 15(A) of the Entertainment Agreement, the parties agree that Entertainer shall pay License Fees for each Showtime as follows:
Arrival Time License Fees
For Daytime Showtimes
1PM or before $10
1.01PM – 4PM $15
4.01PM – 6PM $25
For Evening Showtimes
6.01PM – 8PM $15
8.01PM – 8.30PM $20
8.31PM – 9PM $25
9.01PM – 9.30PM $30
9.31PM – 10PM $35
10.01PM – 10.30PM $40
10.31PM – 11PM $50
11.01PM – 11.30PM $55
11.31PM – 12AM $60
12.01AM – 12.30AM $65
12.31AM – 1AM $70
The License Fees above are based upon the time Entertainer is ready to perform.
Dated: November 26, 2021