This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
12. The amount of baggage, wardrobe, apparatus and other paraphernalia carried by the Artist shall be limited to such amount, weight, size, etc., as shall be first approved by the Employers.
The following sizes only of trunks will be carried on cars: gentlemen artist size, 18x18x24; lady artist size, 20x22x26; lady rider artist size, 20x22x30.
13. The Artist further agrees that in the event of the termination of this agreement from any cause whatever, no claim shall be made for the use of any lithographs, poster or other printed matter, describing the business, or containing the Artist's name by the Employers until said advertising matter is used up.
14. The Employers shall have the option of renewing this agreement for the season of---------by giving notice thereof in writing to the Artist not less than two weeks prior to the close of this season..
15. The Artist represents and understands that his act with the apparatus used in connection therewith is an ingenious creation of his own, that by reason of the experience of the Artist in the circus business and his familiarity with the task of daily adjusting and making his apparatus and act safe and secure under constantly varying conditions of grounds, varying degrees of rainfall, winds, and occasional storms, he is in position better able than the Employers to inspect the condition and determine the safety of premises; and timely presentation of the circus exhibition of which the Artist's act is a part, being of vital concern regarding which late entry into town, bad streets, long hauls, varying conditions of ground or weather as well as other causes unforeseen impose haste and varying burdens, risks and duties upon the Artist.
Now, therefore, it is expressly agreed that the Artist shall furnish' in first-class condition at his expense all apparatus, paraphernalia, equipment and material constituting and used in his or her act and shall be solely responsible for suitably maintaining same in a safe condition throughout the season. That the Artist assumes and undertakes to make and keep the premises safe. That the Artist assumes exclusive supervision regarding inspection of grounds, tents and premises as affecting the safety of said act and assumes exclusive supervision and control regarding the inspection, construction, state of repair and use of and practice by any person upon said apparatus at all times and under all circumstances, and
In any services or assistance by and from employes of the Employers in constructing or using said apparatus said persons are thereby expressly and exclusively made the servants and agents of the Artist, the latter assuming exclusively all responsibility and liability for injuries that in any manner may result, and
The Artist hereby agrees and undertakes that any and all persons using said apparatus or appearing in said act in any manner shall be first by him fully acquainted with its construction and operation and shall be skilled and competent in the use thereof, and before commencing work shall sign a contract with the Employers.
The Artist hereby agrees and undertakes as a part of the consideration of this contract to protect, indemnify and save the Employers harmless with respect to any money the Employers may be compelled to pay or surrender or liability to which the Employers may be subject in consequence of any claim, cause of action or liability due to injury sustained or death in connection with said apparatus or act, either the Artist or by any person whatsoever, whether to a servant of the Artist, a performer or an employe, and particularly including but not exclusively, all persons performing or practicing on said apparatus or there-with, whether within the scope of their employment or otherwise, at all times and under all circumstances, and
No change in said apparatus, device or act of the Artist required or made at the instance of the Employers at any time, shall modify or affect the obligation or liability herein undertaken by and resting upon the Artist.
16. It is clearly known and understood and specially contemplated by the parties hereto:
(a) That the character of the service to be performed involves hazard.
(b) That the place of performance changes from day to day with constantly changing conditions of. premises, with attendant varying degrees of safety.
(c) That the times, manner and means of transportation offered and furnished by the Employers increase the risk of travel beyond the ordinary.
(d) That the circus trains of the Employers, with all persons and property thereon, are transported not as common carrier but by private arrangement, whereby the Employers agree' to hold and save transporting railway or railroad harmless and free from claim or liability for injury to the person or property of the Artist, his servants and troupe, whether occasioned through the negligence of said railroad, its officers or employes, said railroad assuming no liability for injury to the Artist by its negligence or otherwise in any manner.
(e) That all said contracts now or during the course of employment entered into between the Employers and transporting railroads, the Artist hereby ratifies and agrees thereto to be bound, the same being the means of furnishing opportunity for this employment.
(f) The Artist renounces his rights as "passenger"; that no relations of common carrier exist either between the Artist and the Employers or the Artist and any railroad while traveling in or occupying cars of the Employers, or while on railroad tracks in going to or from said cars.
(g) That the Artist at all times is free to elect whether he or she will accept traveling accommodations offered by the Employers and usual in the circus business, thereby effectually and unconditionally releasing from liability for all negligence the transporting railroad and the Employers as herein provided, or to choose and obtain at the Artist's personal expense regular railroad transportation between exhibition stands.
(h) It is recognized and understood that the peculiar nature of the circus business requires these and similar extraordinary covenants and conditions of release and assumption of risk elsewhere contained in this contract, all of which are hereby mutually entered into and accepted with binding effect, and for which in the salary paid herein there is included a particular allowance as express consideration supporting same.
(Now, therefore, in consideration of the salary paid and acknowledging that said release from the Employers to transporting railroads is a material consideration herein, and recognizing special but not exclusive consideration from the extensive travel, widened opportunity to present acts and advertise same, benefits of board and traveling accommodations on circus cars, benefits in securing other engagements gained by connection with the Employers institution, and benefits beyond the scope of employment, the Artist does hereby release and forever discharge the Employers from all claims, demands, liability and cause of action for personal injury to the Artist and loss or injury to property, and for sickness and death, whether sustained or received while in the performance of his duty or otherwise or while occupying or traveling in circus trains, or on railroad tracks or yards, whether due to the fault or negligence in any degree of the Employers, their agents or employes or any transporting railroad, its officers or servants in any manner, and
The Artist further does hereby and upon the consideration and conditions hereinabove recited release and forever discharge each and every railroad company, its officers and servants engaged in transporting the Employers' circus of and from all claims, demands, liabilities and causes of action for injury to the person or property of the Artist while on its tracks or yards, or while occupying or being transported in said circus cars and in any manner, place or time received, whether due to the fault or negligence of said railroad, its officers, agents or servants, or the Employers or their servants, acting separately or combined, and
The Artist further agrees to protect, indemnify and save the Employers harmless with respect to any money the Employers may be compelled to pay or surrender or liability to which the Employers may be subject in consequence of any accident or injury or death to the Artist or to any servant in the employ of the Artist while occupying circus cars or while upon the tracks or yards of any said railroad company, and the Artist does hereby give the right at any time to the Employers to assign this contract to any such' railroad to be used in its defense.
In witness whereof, etc.
See references under Sec. 3853.