Additional Terms for the Pitmaster Participation Agreement

PITMASTER PARTICIPATION AGREEMENT ADDITIONAL TERMS

The following terms are part of the Pitmaster Participation Agreement (the "Agreement"), as linked to from the Agreement, and are thus incorporated by reference into the Agreement for all purposes. This portion of the Agreement includes the following terms, to which both parties agree as follows:

1. Engagement of Pitmaster. During the Term, Pitmaster Collective hereby engages Pitmaster for the purpose to promote Pitmaster participation and Pitmaster's restaurant participation in the Program.


2. Appointment of Pitmaster as part of the Program. During the Term, Pitmaster is hereby appointed as an exclusive participate in the Program (as defined below). The full benefits in serving as a participating Pitmaster in the Program are attached as Exhibit A “Pitmaster Club Membership Benefits”.
   
   1. As an appointed exclusive Pitmaster for the Program, Pitmaster will hold itself out as, and will allow Pitmaster Collective to refer to a participating Pitmaster as an official Pitmaster of the Pitmaster Collective.


3. The Pitmaster Collective Program. Pitmaster Collective engages Pitmaster to cross promote the Program and participate in the Program for their benefit of engaging customers to frequent Pitmaster's restaurants.


4. Compensation for Promotional Activities.
   1. Pitmaster Collective agrees to pay to Pitmaster an amount equal to thirty percent (30%) of the revenue collected by Pitmaster Collective that is directly tied to membership sales that occur at or because of the Pitmaster's restaurant. Revenue is calculated as the dollar amount actually collected by Pitmaster Collective.
   
   
   2. Pitmaster Collective will make such payment to Pitmaster on the fifteenth of every month for the previous month's sales. Pitmaster Collective shall distribute on a monthly basis a Pitmaster payment report reasonably detailing all new membership sales and the revenue received therefrom in the immediately preceding calendar month.
   
   
   3. Pitmaster acknowledges that the Compensation shall not include any reimbursement for travel, living, training, entertainment or other costs, unless such costs are authorized in advance by Pitmaster Collective. All Compensation paid by Pitmaster Collective hereunder shall be exclusive of taxes and similar assessments. Pitmaster is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any Compensation paid to Pitmaster hereunder, other than any taxes imposed on Pitmaster Collective's income.
   
   
5. License.
   1. Access. Pitmaster Collective hereby grants to Pitmaster a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to:
      1. access and use the Program, solely for use by authorized users of Pitmaster in accordance with the terms and conditions herein, and solely for the purpose of promoting and encouraging customers of Pitmaster to obtain memberships in the Pitmaster Collective Program; and
      2. display certain Pitmaster Collective Marks in compliance with usage guidelines that Pitmaster Collective may specify from time to time solely for the purpose set forth in (i) above.
      
      
   2. Use Restrictions. Pitmaster shall not use the Program for any purposes beyond the scope of the access granted in this Agreement. Without limiting the foregoing and except as expressly set forth in this Agreement, Pitmaster shall not at any time, and shall not permit others to:
      1. copy, modify, or create derivative works of the Program, in whole or in part;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Program;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Program, in whole or in part;
      4. remove any proprietary notices from the Program;
      5. use the Program in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
      6. combine or integrate the Program with any software, technology, services, or materials not authorized by Pitmaster Collective;
      7. design or permit any applications to disable, override, or otherwise interfere with any Pitmaster Collective-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
      8. use the Program to replicate or attempt to replace the user experience of the Program; or
      9. attempt to cloak or conceal the Program's identity when requesting authorization to use the Program.
      Nothing in this Agreement shall (i) prohibit Pitmaster Collective in any manner from selling, licensing or otherwise disposing of software or services anywhere in the world, including without limitation granting access to additional “Pitmasters” identified by Pitmaster Collective, or (ii) be deemed to grant to Pitmaster, or any affiliate thereof any rights in or to any other Pitmaster Collective technologies, developments, products or services, whether or not similar to the Program.
   
   
   3. Pitmaster Collective As Exclusive Provider. From the Effective Date until the date upon which this Agreement is terminated in accordance with its terms, Pitmaster Collective shall be the exclusive provider to Pitmaster of the products and services set forth herein. During the Term, Pitmaster shall not seek or accept similar services from other providers unless the prior written approval of Pitmaster Collective is obtained.


6. Pitmaster Collective Responsibilities. During the Term, Pitmaster Collective shall provide reasonable information and criteria as to Pitmaster Collective's requirements, objectives, and expectations for the Pitmaster.


7. Term and Termination.
   1. The term of this Agreement (the “Term”) shall become effective upon execution by the Parties and shall continue in force and effect for a term of three (3) years, unless earlier terminated by either Party due to uncured breach of the other Party or as otherwise set forth in this Agreement.
   
   
   2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
   
   
   3. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
      1. engages in fraud or intentional misconduct with respect to its obligations under this Agreement;
      2. files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
      3. makes or seeks to make a general assignment for the benefit of its creditors; or
      4. applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.


8. Material Changes in Pitmaster's Business. Pitmaster shall notify Pitmaster Collective immediately if Pitmaster becomes aware of any, claim, fact, circumstance or other event that adversely effects, or is likely to adversely affect, Pitmaster's ability to participate in the Program or fulfill its obligations under this Agreement (each, a “Material Adverse Event”). Examples of a Material Adverse Event include:
   1. an Insolvency Event (as defined below);
   
   
   2. if applicable, Pitmaster is downgraded by a nationally recognized ratings agency or removed from a nationally recognized securities trading exchange;
   
   
   3. issuance of an auditor's opinion expressing doubt as to Pitmaster's ability to maintain itself as an on-going concern;
   
   
   4. commencement of litigation, enforcement actions or other regulatory, administrative or judicial actions adverse to Pitmaster, including but not limited to a criminal or regulatory proceeding or investigation with Pitmaster as subject; and
   
   
   5. notice of violation or noncompliance in connection with any laws applicable to the Program or Pitmaster.


9. Independent Contractor. Pitmaster is an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between Pitmaster Collective and Pitmaster. Pitmaster has no authority to bind Pitmaster Collective by contract or otherwise. Pitmaster will report to all applicable government agencies as income all Compensation received by Pitmaster pursuant to this Agreement. Pitmaster will be solely responsible for payment of all withholding taxes, social security, workers' compensation, unemployment and disability insurance or similar items required by any government agency. Pitmaster will indemnify and hold Pitmaster Collective harmless from and against all damages, liabilities, losses, penalties, fines, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or relating to any obligation imposed by law on Pitmaster Collective to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with Compensation received by Pitmaster pursuant to this Agreement.


10. Confidentiality.
    1. Definition of Confidential Information. Pitmaster acknowledges that, by the nature of its appointment as Pitmaster, Pitmaster Collective will be granting Pitmaster access to Pitmaster Collective's Confidential Information. Pitmaster Collective would not grant such access if not for Pitmaster agreeing to the provisions set forth in this Section 10. For purposes of this Agreement, “Confidential Information” means and will include:
       1. any and all information, samples, technical data, or know-how, including, without limitation, that which relates to the research, methods, processes, customers, review and verification results, video/audio recordings, markets, software, developments, inventions, designs, drawings, engineering, hardware configuration information, marketing, services, products or finances of Pitmaster Collective, its subsidiaries or other affiliated companies, that is not generally known by individuals who are not and have never been employed by, or engaged as contractors of, Pitmaster Collective;
       2. any information, materials or knowledge regarding Pitmaster Collective and its business, financial condition, products, customers, suppliers, technology or research and development that is disclosed to Pitmaster or to which Pitmaster has access in connection with the Promotional Services; and
       3. the terms and conditions of this Agreement.
       Confidential Information will not include any information that:
       1. is now or subsequently becomes generally available to the public through no wrongful act, omission or fault of the non-disclosing Party;
       2. Pitmaster can demonstrate to have had rightfully in its possession prior to disclosure to Pitmaster by Pitmaster Collective, without restriction as to use or disclosure; or
       3. Pitmaster rightfully receives from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure.
    
    
    2. Confidentiality Obligations. Pitmaster agrees to hold all Confidential Information in strict confidence, not to use it in any way, commercially or otherwise, except in connection with the Program, and agrees not to disclose it to others, or use it in any manner outside of the Program, without the prior written consent of Pitmaster Collective.


11. Acknowledgment of Pitmaster Collective's Right in Work Product. Pitmaster may, during the course of or as a result of performing the Program, develop certain ideas, drawings, desktop and field audit protocols, plans, calculations, technical specifications, works of authorship, inventions, information, data, formulas, models, photographs, marks, designs, computer code, concepts and/or other proprietary materials related to the operation or promotion of the business of Pitmaster Collective and the Program (collectively, the “Work Product”).
    1. All of the Work Product is, was and shall hereafter be, a commissioned “work for hire” owned by Pitmaster Collective within the meaning of Title 17, Section 101 of the United States Code, as amended. If any portion of the Work Product is determined not to be a “work for hire” or such doctrine is not effective, Pitmaster hereby irrevocably assigns, conveys and otherwise transfers to Pitmaster Collective, and Pitmaster Collective's respective successors, licensees, and assigns, all right, title and interest worldwide in and to such portion of the Work Product and all proprietary rights therein, including, without limitation, all copyrights, trademarks, design patents, trade secret rights, moral rights, and all contract and licensing rights, and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become known. In accordance with this assignment, Pitmaster Collective shall hold all ownership to all rights, without limitation, in and to all of the Work Product for its own use and for its legal representatives, assigns and successors, and this assignment shall be binding on and extended to the heirs, assigns, representatives and successors of Pitmaster.
    
    
    2. Pitmaster agrees that Pitmaster will take all actions and execute any and all documents as may be reasonably requested by Pitmaster Collective, from time to time to fully vest in Pitmaster Collective all rights, title and interests worldwide in and to the Work Product. Upon request by Pitmaster Collective, Pitmaster shall immediately deliver to Pitmaster Collective all tangible materials, drawings, computer software, data, audio or video recordings or any other information of any kind whatsoever evidencing the creation or development of all or any portion of the Work Product, or derived therefrom.


12. Pitmaster Collective Use of Pitmaster's Name/Likeness. Pitmaster acknowledges Pitmaster Collective's inherent right to control the commercial use of its identity and the Promotional Services provided hereunder and agrees that the Pitmaster will not use the name, likeness or other indicia of identity of Pitmaster Collective, or any affiliate thereof, for commercial purposes, including without limitation, placing the name or making any reference to Pitmaster Collective (or any affiliate thereof) or the Program on the Pitmaster's website, without the prior written consent of Pitmaster Collective, such consent to be granted in Pitmaster Collective's sole and absolute discretion.


13. Representations and Warranties. Pitmaster hereby warrants and represents that:
    1. Pitmaster has the right to enter into this Agreement, fully perform Pitmaster's obligations and make the assignments contemplated herein;
    
    
    2. all Program and Work Product developed, designed, and created for Pitmaster Collective or otherwise contributed by Pitmaster are original and do not violate or infringe upon any common law or statutory right of any person or entity;
    
    
    3. all Program performed under this Agreement will be performed consistent with prevailing professional standards;
    
    
    4. neither Pitmaster nor any of Pitmaster's personnel shall engage in any corrupt, fraudulent, unfair or deceptive practices for any purpose in connection with this Agreement; and
    
    
    5. neither Pitmaster nor its affiliates have any undisclosed direct or indirect business or personal, financial or other interest, in any person or entity that would conflict with or influence in any manner or degree the selection of Pitmaster or the performance of the Program.


14. Equitable Remedies. Because Pitmaster will have access to Confidential Information of Pitmaster Collective, Pitmaster Collective will have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without having to post a bond or other consideration, in addition to all other remedies that Pitmaster Collective may have for a breach of this Agreement at law or otherwise.


15. Return of Pitmaster Collective's Property. Upon the termination of this Agreement (however occurring), Pitmaster will promptly deliver to Pitmaster Collective all records, documents, equipment, or any other property of Pitmaster Collective in Pitmaster's possession or control.


16. Indemnification and Limitation of Liability. Pitmaster agrees to indemnify and hold harmless Pitmaster Collective and its directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees and other legal expenses, arising from or in connection with: (i) the negligence, gross negligence or willful misconduct of Pitmaster or Pitmaster's assistants, employees or agents; or (ii) the breach by Pitmaster of any of Pitmaster's covenants or obligations in this Agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS AND LOST REVENUES) WITH RESPECT TO THE SERVICES OR THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY. THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST ANY PARTY WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER WILL NOT EXCEED THE AGGREGATE COMPENSATION PAID BY THE PITMASTER COLLECTIVE TO PITMASTER DURING THE TERM.


17. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without giving effect to any principle of conflict of laws that would require the application of the law of any other jurisdiction.


18. No Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.


19. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party hereto. Any assignment in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. Pitmaster acknowledges and agrees that Pitmaster shall not permit any individual, entity or subcontractor to perform work related to the Promotional Services or Work Product without Pitmaster Collective's prior written consent.


20. WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULED, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.


21. Arbitration. Any dispute, controversy, or claim arising from or related to this Agreement or any breach or termination thereof will be submitted to and decided by binding arbitration with the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules in Collin County, Texas. AAA will administer arbitration exclusively and conduct arbitration consistent with the rules, regulations, and requirements of AAA, as well as any requirements imposed by state or federal law. Any arbitral award determination will be final and binding upon Pitmaster and Pitmaster Collective. Pitmaster further agrees to proceed in arbitration on an individual basis. Pitmaster and Pitmaster Collective waive the right to assert, participate in, or receive money or any other relief from any class, collective, or representative proceeding. Pitmaster and Pitmaster Collective will only submit their own individual claims against the other and will not seek to represent the interests of any other person. No arbitrator will have jurisdiction or authority to compel any class or collective claim, to consolidate different proceedings, or join any other party to an arbitration between Pitmaster and Pitmaster Collective.


22. Counterparts. This Agreement may be executed in any number of counterparts. This Agreement may be executed by facsimile signature or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).


23. Entire Agreement. This Agreement, including the recitals and introductions, embodies the entire agreement and understanding of the Parties with respect to the subject matter contained herein and supersedes any and all prior conflicting or inconsistent agreements, consents and understandings relating to such subject matter. The Parties agree that there is no oral or other agreement between the Parties that has not been incorporated in this Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties.

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Exhibit A

Pitmaster Club Membership Benefits

Choice Membership: $8/month; $96/year

Meal Discount:

• 10% off each meal (limited to one-time use per day)

Brand Promo Codes:

• Customers are given up to 40% off big-market and popular brands

Magazine:

• Our own developed digital and printed copies of the Pitmaster Magazine featuring Pitmaster news, Pitmaster restaurant locations, and other information about BBQ

Pit Tours:

• Take a tour of a Pitmaster “Kitchen” or Pit

Skip-the-Line:

• Move to the front of the line at participating Pitmaster restaurants

Prime Membership: $12/month; $144/year

Meal Discount:

• 10% off each meal (limited to one-time use per day)

Brand Promo Codes:

• Customers are given up to 40% off big-market and popular brands

Magazine:

• Our own developed digital and printed copies of the Pitmaster Magazine featuring Pitmaster news, Pitmaster restaurant locations, and other information about BBQ

Pit Tours:

• Take a tour of a Pitmaster “Kitchen” or Pit

Skip-the-Line:

• Move to the front of the line at participating Pitmaster restaurants

4 Webinars per year:

• Special live video productions about food and preparations as well as successful business practices. This is interactive, so audience members can submit their questions

4 Masterclasses per year:

• Students of the craft come to the Pitmasters to learn how to cook like the Pitmaster. Learn about cooking BBQ - from the basics to the bold

ADD ONs (eligible for Choice/Prime):

• Pitmaster for a Day
  • Choice: $2,500
  • Prime: $2,000
• Backyard Pitmaster
  • Choice: inquire for prices
  • Prime: inquire for prices
• Pitmaster Party Catering
  • Choice: inquire for prices
  • Prime: inquire for prices