TERMS AND CONDITIONS

1. Duties of SET and Client. SET and Client each agree to undertake and fulfill the duties and obligations set forth on Schedule A hereto. Capitalized terms used in this Agreement are defined herein or on Schedule A.

2. Fees and Payment.

1. Pricing. The pricing for the applicable SET Services is set forth in and will be calculated in accordance with Schedule A.

2. Payment. The week following each event during the Term, SET agrees to pay Client (via check or electronically), the aggregate net sales revenue proceeds after expenses and fees have been deducted from the Gross Revenue produced in the previous calendar month from transactions completed utilizing the "SET Platform" referred herein as "Client Proceeds" (defined on Schedule A) owed to Client. If necessary, Client will provide SET with all necessary ACH instructions or link them electronically to their account required to successfully process payment into their designated United States domiciled financial institutions bank account. All payments made under this Agreement shall be in United States dollars. The payments under this Section are net amounts to be received by the applicable party, exclusive of all taxes, duties, sales taxes, value added taxes, assessments, and similar taxes and duties, and, except as otherwise provided herein, are not subject to offset or reduction because of any costs, expenses, taxes, duties, assessments, or liabilities incurred by the other party or imposed on a party in the performance of this Agreement or otherwise due as a result of this Agreement. Notwithstanding the foregoing, each party shall be responsible for the payment of any and all of its own income taxes and income tax withholding. Client shall remit to the proper authorities all sales tax owed in connection with the SET Services sold to Patrons, and expressly agrees to indemnify, defend, and hold harmless SET from any and all claims, damages, losses, and liabilities related to any tax matters.

3. Funds Control. Client shall have ultimate control over all funds received by SET and Client shall retain a security interest in all funds received by SET hereunder on behalf of Client as its agent.

3. Term and Termination.

1. Term. This Agreement shall be in effect as of the Effective Date and, unless terminated in accordance with this Section, will continue in effect for one (1) year (the "Initial Term"). Following the Initial Term, the Agreement shall renew for additional successive twelve (12) month terms (each a "Renewal Term"), unless either party notifies the other in writing at least thirty (30) days prior to the end of the then-current term of its intention not to renew this Agreement. The Initial Term and any Renewal Term are referred to collectively herein as the "Term."

2. Termination. Either party may terminate this Agreement upon the material breach by the other party of this Agreement, which breach is not cured within thirty (30) days of the date of written notice thereof.
3. Survival. In addition to those Sections of this Agreement that survive expiration or termination of this Agreement by their express terms, Sections 6 through 10 shall survive the expiration or termination of this Agreement in perpetuity or to the maximum extent permitted by applicable law.

4. Representations and Warranties.

1. Each party hereby represents and warrants to the other that it has authorized the person who is signing this Agreement for such party to execute and deliver this Agreement; and has the power and authority to enter into this Agreement, and to grant the rights and licenses and to perform its obligations hereunder.

2. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, AND EACH PARTY HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

3. Client warrants that it shall be responsible for honoring all tickets sold and for refunding payments for any cancellations, interruptions, or disputed transactions, of which may be affected through SET.

4. SET and Client shall cobrand all material related to SET’s performance hereunder so that there is no confusion that the Patron is conducting business with Client through SET. 

5. SET shall not offer any other product or service to Patrons other than those offered by Client.

5. Limitation of Liability: Indemnification.

1. EXCEPT FOR CLAIMS FOR INDEMNIFICATION MADE UNDER SECTIONS 6(C) AND 6(0) BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY COST OF COVER, LOST PROFITS, LOSS OF REVENUE, OR ANY FORM OF SPECIAL INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (WHETHER OR NOT FORESETEABLE)  ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, WHETHER BASED ON A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ACTS OR OMISSIONS INVOLVING INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.

2. IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION FOR ANY INCIDENTAL, CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMIT LOST PROFITS.  FURTHER IN NO EVENT SHALL SET BE LIABLE TO CLIENT IN AN AMOUNT THAT EXCEED $5,000.

3. SET will defend Client, its parent company and their affiliates and hold harmless from any claim, cause of action, suit or proceeding by a third party, and indemnify and hold them harmless from any resulting loss, expense (including reasonable out-of-pocket attorneys' fees and court costs), damage or liability, alleging that the "SET Offerings" (defined below), or the use thereof, infringes any patent, copyright, trade secret or any proprietary rights of any third party.

4. Client will defend SET, its parent company and its affiliates harmless from any claim, cause of action, suit or proceeding by a third party, and indemnify and hold them harmless from any resulting loss, expense (including reasonable out-of-pocket attorneys' fees and court costs), damage, or liability, alleging that any materials provided by Client to SET or SET's authorized use thereof in the performance of this Agreement infringes any patent, copyright, trade secret or any proprietary rights of any third party.

5. The following procedures will be followed in connection with any claim for indemnification hereunder (provided that it is understood that failure to follow these procedures will not limit an indemnifying party's obligation to provide indemnification, except to the extent that failure to follow such procedures materially prejudices the indemnifying party's ability to defend against a claim for which indemnification is sought):

1. The indemnified party will promptly inform the indemnifying party in writing of any such claim, demand or suit and the indemnified party will reasonably cooperate in the defense thereof at the indemnified party's expense;
2. Subject to Section 6(e)(iii) below, the indemnified party will give the indemnifying party sole control of the defense and all related settlement negotiations and reasonable assistance; and
3. The indemnified party will not agree to the settlement of any such claim, demand or suit prior to a final judgment thereon without the consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed and will not agree to the settlement of any such claim, demand or suit unless such settlement provides for the complete and unconditional release of the indemnified party, without the prior written consent of the indemnified party.

6. Proprietary Rights. SET and Client shall retain any and all right, title, and interest in and to each party's respective intellectual property of any nature (including, but not limited to, trade secrets, copyrights, and trademarks), unless otherwise agreed by SET and Client in writing. Without limiting the foregoing, each party shall retain all right, title, and interest to any pre-existing data or independently created list of customers and any data or list created or obtained by each party through performance under this Agreement.

7. Licenses.

1. During the Term, SET and Client each hereby grants to the other a non-exclusive, royalty-free license, to use the other's business name and any images, logos, trade names, trademarks, or service marks as may be necessary to fulfill their obligations and perform this Agreement (referred to collectively herein as the "Marks"). Each use of the Marks by the other party shall be subject to prior approval and either party hereto shall have the right to reasonably object to the other party's use of its Marks and to reasonably direct the use of its Marks on the SET Application (defined below) or any web site controlled by the other party. Each of SET and Client will retain all goodwill and all other rights in connection with their respective Marks. Neither SET nor Client will obtain any rights in the other's Marks as a result of their use of the other's Marks.

2. In each case where any Marks appear, appropriate notices shall indicate that such Marks are the trademarks of the respective parties. A party's use of the other party's Marks shall be in compliance with such other parties' trademark usage guidelines, as amended from time to time, a copy of which will be provided to such party following the execution of this Agreement. Such party is the sole and exclusive owner of such party's Marks. Except as prohibited by law, the parties shall do nothing inconsistent with such ownership, either during the Term or afterwards. A party's use of the other party's Marks shall inure to the benefit of and be on behalf of the other party. Such party's utilization of the other party's Marks will not create any right, title or interest in such other party's Marks.

3. SET hereby grants Client a license to use the administrative portion of the SET Platform via the Internet for purpose for conducting campaigns of sales of tickets and goods and services to prospective Patrons. Client shall not directly or indirectly reverse engineer, decompile or disassemble the software used to provide the SET Platform.

4. Client hereby appoints SET as its agent to perform the services contemplated hereunder.  Client expressly agrees that it shall not perform any services outside of those agreed upon herein. 

8. Confidentiality.

1. Each party acknowledges that, in the course of their relationship, they will receive, work with and be exposed to certain non-public information concerning the business of the other party and its affiliates that the receiving party knows or reasonably should know is confidential to the disclosing party, whether or not reduced to writing, including, without limitation, information and knowledge pertaining to the SET Offerings, accounting data, and other proprietary information relating to the business of Client and SET (collectively, the "Confidential Information"). The terms and conditions (including the pricing and percentages ) are Confidential Information of both parties. Each party agrees to use the same measures to protect the other party's Confidential Information as it takes to protect its own Confidential Information, but in no event less than reasonable care under the circumstances.

2. The following information shall not be subject to the confidentiality restrictions set forth in this Section 9: (i) information that the receiving party can show was already known to it or in its possession at the time of disclosure and was not acquired, directly or indirectly, from the disclosing party or from a third party under a continuing obligation of confidence to the disclosing party; (ii) information which is now or subsequently becomes known or available to the public or in the trade by publication, commercial use or otherwise through no act or fault on the part of the receiving party; (iii) information which the receiving party independently develops without use of or reference to the disclosing party's Confidential Information; and (iv) information which is provided to any third party free of confidentiality obligations or is approved by the disclosing party for disclosure. A disclosure where which is required to disclose in response to a valid court order or otherwise required to be disclosed by law is not a violation of this Agreement, but only if the receiving party gives the disclosing party prompt written notice of the potential for such disclosure and provides it with the opportunity to seek a protective order or obtain other relief to preserve the confidentiality of the Confidential Information .

3. With regard to Confidential Information that the recipient knows or reasonably should know constitutes a trade secret under applicable law, the obligations in this Section shall continue for so long as such information constitutes a trade secret. With regard to all other Confidential Information, the obligations in this Section 9 shall continue for the Term and for a period of four (4) years thereafter.

4. A party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, in confidence to any or all of the following: potential acquirers, merger partners, investors (including general partners), lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, in connection with the due diligence review of such party by persons; and to the party's outside accountants, legal counsel, auditors and other profession advisors and persons with a bona fide need to know. A party may also disclose this Agreement in connection with any litigation or legal action concerning this Agreement.

9. General

1. Assignment. Neither party may transfer or assign its rights under this Agreement without the prior written consent of the other party hereto, except that a party may assign this Agreement to an affiliate or upon a Change of Control. For purposes of this Agreement, a "Change of Control" means a sale of all or substantially all of the assets of a party or the transfer of a controlling interest in the voting stock of a party. Subject to the foregoing, the rights and obligations of the parties will bind and inure to the benefit of their respective successors and assigns. Any purported assignment in violation of this paragraph is void.

2. Delay. Neither party will be liable to the other party for any failure nor delay in performance caused by reasons beyond such party's reasonable control, and any such failure or delay will not constitute a breach of this Agreement.

3. Expenses. Except as otherwise noted, each party to this Agreement will bear its own expenses in connection with fulfilling its obligations under this Agreement.
4. Notices. Any notices under this Agreement shall be delivered by nationally-recognized express delivery services, or certified or registered mail, return receipt requested, to the address of the respective party set forth on the signature page to this Agreement, or such other address as a party may subsequently specify in writing. Notice by email will be deemed received effective upon receipt where acknowledged by recipient (other than email auto replies). Notice by express delivery will be deemed received effective upon delivery. Notice by certified or registered mail will be deemed received effective on the date signed for or rejected by addressee.

5. Nature of Relationship. Neither this Agreement nor the parties' business relationship established hereunder will be construed as a partnership, joint venture or agency relationship, or as granting any franchise.

6. Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

7. Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications and understandings (both written and verbal) regarding such subject matter.

8. Equitable Relief. Each of the parties hereto acknowledges that violation of any of Sections 7, 8 or 9 hereof may cause irreparable injury to the other party, and that such violation may not be capable of remedy by money damages or other remedy at law. Each party shall therefore accordingly have the right to seek injunctive and equitable relief to restrain any improper disclosure or use (or any attempted or intended disclosure or use) in any court of competent jurisdiction, without the necessity  of either party posting any bond in such proceeding, any such bond requirement being hereby waived by the parties hereto. The parties hereto acknowledge that they have relied on the provisions hereof in making their decision to disclose the confidential information hereunder and that neither party would have made such disclosures unless entitled to  the protection of this provision.

1. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument.

10. Governing Law: Venue. This Agreement shall be governed by the laws of the State of Texas, without giving effect to any principles that may provide for the application of the laws of another jurisdiction.

10. BINDING ARBITRATION. EXCEPT AS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT, ANY DISPUTE OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION IN BEXAR COUNTY, TEXAS IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION  RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) FROM TIME  TO TIME IN FORCE AND EFFECT. THIS AGREEMENT TO ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE AND IS THE EXCLUSIVE REMEDY FOR THE RESOLUTION OF SUCH DISPUTES UNDER THIS AGREEMENT. THERE SHALL BE A SINGLE ARBITRATOR, WHO MUST BE (I) A LAWYER ENGAGED FULL-TIME IN THE PRACTAICE OF LAW AND A MEMBER IN GOOD STANDING OF THE STATE BAR OF CALIFORNIA AND (II) ON THE AAA REGISTER OF ARBITRATORS. WITHIN THIRTY (30) DAYS OF THE CONCLUSION OF THE ARBITRATION HEARING, THE ARBITRATOR SHALL PREPARE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW. JUDGMENT ON THE WRITTEN AWARD MAY BE ENTERED AND ENFORCED IN ANY STATE OR FEDERAL COURT LOCATED IN THE BEXAR COUNTY TEXAS. THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS SO SELECTED, TO THE EXCLUSION OF ANY OTHER COURT WHICH MIGHT HAVE HAD JURISDICTION APART FROM THIS SECTION 15(e), WAIVE ANY DEFENSE OF LACK OF IN PERSONAM JURISDICTION OF SUCH COURTS AND AGREE THAT SERVICE OF PROCESS IN ANY ACTION BEFORE SUCH COURTS MAY BE MADE BY MAILING IT TO THE PARTY TO BE SERVED  AT THE ADDRESS PROVIDED FOR IN SECTION 15(d) HEREOF. IT IS MUTUALLY AGREED THAT THE WRITTEN DECISION OF THE ARBITRATOR SHALL BE VALID, BINDING, FINAL AND NON- APPEALABLE; PROVIDED HOWEVER, THAT THE PARTIES HERETO AGREE THAT THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD PUNITIVE DAMAGES AGAINST ANY PARTY TO SUCH ARBITRATION. THE ARBITRATOR SHALL REQUIRE THE NON- PREVAILING PARTY TO PAY THE ARBITRATOR’S FULL FEES AND EXPENSES OR, IF IN THE ARBITRATOR’S OPINION THERE IS NO PREVAILING PARTY, THE ARBITRATOR’S FEES AND EXPENSES WILL BE BORNE EQUALLY BY THE PARTIES THERETO. EACH OF THE PARTIES HERETO FURTHER AGREES THAT IT WILL NOT BECOME A MEMBER OF ANY CLASS-WIDE LITIGATION OR ARBITRATION AND WILL NOT INITIATE ANY CLASS ACTION LITIGATION OR ARBITRATION AGAINST THE OTHER PARTY. FURTHER THE PARTIES AGREE THAT THEY WILL NOT ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OF ANY GROUP, CLASS, OR OTHERWISE SIMILARLY SITUATED INDIVIDUAL OR ENTITY.

Schedule A

1. The SET Offerings.

During the Term, SET will provide the "SET Offerings" which are collectively (a) the SET Platform and (b) one or more of the SET Services delivered to Patrons for and on behalf of the Client.

2. The SET Platform.

SET will deliver a proprietary sales and marketing platform that is coupled with a back end campaign management and analytics system to help Client maximize unsold inventory opportunities and effectively engage Client's event patrons ("Patrons") to increase revenue for the Client's events.

3. SET Services.

During the Term, SET will deliver the following SET Services to Patrons through the SET Platform (collectively, the "SET Services"):

Participating Patrons will opt into receiving communications from SET and then SET will notify them when offers are available. Participating Patrons can then purchase through the SET Platform the following types of products and services from Client, at Client's sole discretion:

1. Event tickets

SET is responsible for, among other things, the following: (a) sending communications to Patrons about the availability of tickets to the game; (b) collecting payment from Patrons for purchased tickets; and (c) distributing the Client Proceeds.

4. Fees and Expenses.

Client shall pay to SET for the applicable SET Services delivered by SET to Patrons the fees set forth in this Section 4 of this Schedule A which such fees shall be calculated as follows:

1. "Processing Fees" means the costs associated with processing each credit card transaction from a Patron in connection with the SET Platform for Client's tickets (and other goods and services) and shall be deducted from Client's Gross Sales Revenue on a per transaction basis. The current Processing Fee being defined at the rate of 3.99% of the total US Dollar amount being processed for each transaction.

2. "SET Deductions" means the sum of the Processing Fees, the Service Fees.

3. "Service Fees" means the costs added to the ticket price for each campaign and shall be defined at the rate of $1.00 per ticket based on the price of the ticket. (i.e. $5 ticket is presented to the fan as $6)

5. Calculation of Client Proceeds, Schedule of Payment, and Payment Method.

1. "Client Proceeds" means the net revenue dollar (USO $) value that SET shall remit to Client after all fees, costs, and related expenses have been deducted from the total gross revenue generated from Clients account the week following the event. For the purposes of this Agreement, the Client Proceeds shall be calculated as shown below.
   1. $ Gross Sales Revenue minus the SET Deduct ions = $ Net Sales Revenue
   2. Example- $6.24 Gross Sales Revenue - $0.24 Processing Fee - $1.00 Service Fee  = $5.00 Net Sales Revenue
2. "Schedule of Payment" means the frequency with which SET shall make payment to the Client the Client Proceeds owed from sales generated utilizing the SET Platform. For the purposes of this Agreement, SET shall make regular weekly payments to the Client of all Client Proceeds owed for sales generated, processed, and fully settled the week following the event.

3. "Payment Method" means the method used by SET to make payment to Client any Client Proceeds owed to Client by SET as are set forth in Section 3(b) of this Agreement and herein this Section 5(c)  of this Schedule A of this Agreement. For the purposes of this Agreement the Payment Method shall be either check or ACH. If ACH, Client acknowledges and agrees to provide all necessary ACH payment instructions needed to make such payments.