SEASON TICKET HOLDER MEMBERSHIP AGREEMENT

THIS AGREEMENT WILL AUTOMATICALLY RENEW EACH SEASON UNTIL YOU CANCEL IT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

THIS AGREEMENT INCLUDES AN ARBITRATION AGREEMENT WITH A CLASS ACTION WAIVER.
YOU HAVE A RIGHT TO REJECT THE ARBITRATION AGREEMENT AS DESCRIBED BELOW.

The following Season Ticket Holder Terms and Conditions (the “Agreement”) apply to the San Jose Earthquakes Season Ticket Holder Program (individually, a “Membership,” collectively, the “Memberships”).

In this Agreement, “San Jose Earthquakes” and “Earthquakes” mean the professional Major League Soccer team operated by Earthquakes Soccer, LLC and “STH” means an individual or entity who has purchased or is in possession of a Membership. A “Season” shall mean the regular season of Earthquakes as determined by Major League Soccer (“MLS”) each year, but shall exclude pre-season and post-season. The breach of any of the terms and conditions contained herein will automatically terminate the grant of license and benefits provided by the Membership.

MEMBERSHIP BENEFITS

  1. Included Matches:

Membership includes tickets to: (i) all scheduled EARTHQUAKES regular season MLS home matches; and (ii) three (3) additional EARTHQUAKES match(es) (“Included Matches”), which shall be designated at the EARTHQUAKES’s discretion and may include, but are not limited to, the following categories of matches: Leagues Cup matches, CONCACAF Champions League matches, Lamar Hunt U.S. Open Cup/Canadian Championship matches; international friendly matches; or any other match scheduled to be played by EARTHQUAKES during the Term.

Should an “Included Match” be cancelled and not rescheduled, STH may be entitled to a credit in the amount of the full-face value of the pro rata event ticket price for that event, to use for additional tickets to other matches, upgrading price levels of current seating locations, playoff matches, other exclusive ticket opportunities, or towards the balance of the Membership for the subsequent season. In addition to these remedies, Earthquakes may consider other options, including a refund to the card on file, if requested. Notwithstanding the foregoing, Earthquakes or Earthquakes affiliates shall have no obligation or liability to you with respect to any Included Matches that are considered shortened but completed, suspended or cancelled under MLS rules. For the avoidance of doubt, games, tournaments, exhibitions, or events sponsored or hosted by Bay FC, a National Women’s Soccer League club are not included in the Membership benefits.

  1. Dedicated Client Services Executive.
  1. Additional benefits vary by membership category and include discounts on merchandise and concessions and preferable seating opportunities for playoff matches.

AUTOMATIC RENEWAL AND PAYMENT TERMS

By purchasing a Membership, you acknowledge that the Membership will renew every year under the following payment terms unless you opt-out:

  1. Promise to Pay; Payment Plan Options. Members will have access to two payment plans:
  • Lump Sum Plan (automatically renews): This plan allows Members to the total cost of their Membership in a lump sum payment. The amount and due date for the lump sum payment will be provided in your Ticketmaster account. This payment is typically made using American Express, Discover, MasterCard and Visa (each a “Credit Card”).
  • Payment Plan (automatically renews): This plan allows Members to pay for the cost of their membership for the following Season by making four (4) payments. The amounts and due dates for the four (4) payments will be provided in your Ticketmaster account. These payments may be made by Credit Card only. If the Credit Card is declined for a payment for any reason, Earthquakes will re-run the Credit Card. If at this point payment has not been made, Earthquakes will attempt to notify the STH by email and/or telephone to request that the payment information be updated. If the issue with the Credit Card is not remedied within 15 days of the date payment was initially declined, Membership benefits for the following season shall be suspended until payment in full is made.

Please note that any Playoff Matches and Leagues Cup Matches will be billed to STHs on a match-by-match basis as such matches are confirmed, regardless of the payment plan selected by the Member. See Section 3. Pay-As-We-Play Program below.

If STH fails to pay any sums owing under this Agreement when due, Earthquakes may terminate the Membership and attempt to sell STH’s tickets to another party without liability to STH. Subject to the Arbitration Agreement below, Earthquakes may use all legal rights of enforcement, such as sending STH’s account information to a collections agency, canceling remaining tickets, or initiating arbitration. If Earthquakes prevails in an action or arbitration proceeding to enforce this Agreement, STH will pay Earthquakes reasonable costs of collection, including attorneys' fees and court costs, to the extent permitted by applicable law. Subject to the Arbitration Agreement below, if Earthquakes violate this Agreement STH may seek damages available under applicable law, but Earthquakes will not in any event be liable for damages greater than the License Fee paid by you under this Agreement.

  1. Automatic Ticket Renewal and Opt-Out Instructions.

With the purchase of a Membership for the upcoming Season, STHs agree to enter into an automatic renewal membership program. Through this program, STHs will have their Membership automatically renewed for the upcoming Season, until such time as they choose to opt-out of their Membership in accordance with the procedures set forth in this Agreement.

The Earthquakes’ Client Services Team will send a renewal notice to STHs at least 21 days prior to the first automatic renewal payment date. This renewal notice will specify the new pricing for the STH’s tickets for the upcoming Season as well as any other ticket changes or Membership benefits. STHs may opt-out of their Membership for the upcoming Season any time prior to the first payment by contacting a member of the Earthquakes’ Client Services Team by email at **accountserviceteam@sjearthquakes.com** or by phone at 408.556.7700 option 1. Any such STH who opts-out of the next Season will retain Membership status for the remainder of the current Season and any outstanding or future Membership payments relating to the current Season must be paid by the STH.

If notice of cancellation is not received by Earthquakes within the time frame specified above, the STH’s tickets shall be automatically renewed for the upcoming Season and the STH’s first payment shall be due and payable in accordance with the payment option selected by STH in prior Seasons.

Any changes to the price of the Membership, or any material changes to the Membership benefits, will be communicated to STHs at least 21 days prior to the automatic renewal date each year. If STHs wish to select a different payment plan at the start of each subsequent Season, they may do so by informing the Earthquakes’ Client Services department prior to the automatic renewal date for the following Season provided that no change in a payment plan will be effective until confirmed in writing by the Earthquakes.

The Membership cannot be suspended for any period of time. If a STH chooses to cancel the Membership for any period, the STH will need to re-establish Membership, subject to availability, and be subject to the then-current STH pricing and benefits.

Individuals or entities who select a Membership expressly authorize the initial and continued payments in accordance with their selected payment plan for the current Season and for each subsequent Season, until such time as they choose to opt-out of their Membership as provided herein.

  1. Pay-As-We-Play Program for Additional Matches & Playoffs:

STHs, in good standing, will be automatically enrolled in the Pay As We Play program (“Pay-As-We-Play Program”), and will have the opportunity to purchase tickets for certain events which fall outside the Included Matches and which may include one or more rounds of competition at the Earthquakes’ discretion, including but not limited to MLS Cup Playoffs, Leagues Cup matches, CONCACAF Champions League matches, Lamar Hunt U.S. Open Cup/Canadian Championship matches, and other similar matches designated by Earthquakes (collectively, the “Pay-As-We-Play Matches”). Following the public announcement of one or multiple Pay-As-We-Play Match(es), Earthquakes shall provide all STHs with notice that such event or events constitute a Pay-As-We-Play Match and will provide all STHs with an invoice for the price of tickets to the Pay-As-We-Play Match(es). All invoices generated for Pay-As-We-Play Matches shall be for the same seats in the STH’s account for the then-current season, and the invoice shall list the per seat price for all Pay-As-We-Play Matches included in the invoice. Each STH will be provided with the time period and manner for providing notice to Earthquakes that STH does not wish to purchase tickets for the invoiced Pay-As-We-Play Match(es) (“Opting Out”), which time period shall in no event be sooner than forty-eight (48) hours after Earthquakes provides notice of the event’s designation as an Pay-As-We-Play Match (“Opt-Out Period”). If STH does not Opt Out within the Opt-Out Period, STH authorizes Earthquakes and Earthquakes’ designated ticket agent (Ticketmaster) to charge their Credit Card on file with Earthquakes’ ticket agent in their account on the first date immediately following each Opt-Out Period for the full invoice amount in one lump sum (unless a payment plan is offered through the invoice). Opting Out of any specific invoice during any Opt-Out Period shall release STH’s tickets for the associated event(s) back to Earthquakes for sale as part of general single match inventory for the event(s). If multiple Events are offered in an Invoice, for example all home MLS Playoff matches, once Opting Out of the first Event in the series, STH shall be Opted Out for all remaining Events in that series, including but not limited to later rounds of competition, (e.g., a Conference Final), and shall not be guaranteed any subsequent opportunity to purchase tickets on a single match basis.

MEMBERSHIP TERMS AND CONDITIONS

  1. REVOCABLE LICENSE

Earthquakes owns and controls all rights to seat locations for Earthquakes home games at PayPal Park in San Jose, California (“Stadium”). A purchaser of the Membership obtains a license, in the form of the ticket, to use the seat location at the Stadium designated by the ticket. The Earthquakes, in its sole and absolute discretion, may revoke this license at any time upon refunding the purchase price printed on the ticket to the STH, OR after any misconduct by the STH or the user of STH’s ticket for any particular match (herein after referred to as a “Ticket User”), without refund. This license is granted on a game-to-game basis, and is subject to all rules, regulations and policies relating to tickets as established from time to time by the Earthquakes, the Stadium and MLS. Breach of any of the terms of this Agreement or relevant ticket policies shall entitle Earthquakes to take all available legal remedies, including but not limited to revocation or cancellation of your Membership.

  1. PAYMENT AUTHORIZATION

STH understands that by becoming a STH, STH is authorizing Earthquakes to bill the STH for Membership payments in accordance with the payment terms that the STH selects. For all Membership payments, this payment authorization shall remain in effect for so long as the Membership remains in effect. The STH hereby represents and warrants that the STH has the authority to approve charges in accordance with the listed payment information for the purpose of paying the Membership dues. The STH understands and agrees that the Earthquakes are not liable in any way for erroneous billing statements or incorrect charges, and that in the event of such a billing error, the Earthquakes’ only responsibility is to correct it after it receives notice of the error. All deposits and/or payments made are non-refundable.

The STH understands that it is solely the STH’s responsibility to ensure the STH’s payment information is current and to notify Earthquakes of any deficiencies, and that the STH’s failure to do so within the specified time frame may result in a loss of Membership privileges and potential revocation of the Membership. Under the Membership, all payments are due on the dates specified regardless of match cancellations or rescheduling – refunds will be addressed in accordance with the applicable policy in effect at that time for the applicable match.

Earthquakes accepts American Express, Discover, MasterCard and Visa for ticket orders. Checks are acceptable in advance only and may be made payable to: San Jose Earthquakes. Cash is acceptable if delivered in person. Orders may have a processing fee assessed. All sales are final. No refunds or exchanges are permitted.

  1. ACCOUNT OWNERSHIP

The STH is the rights holder, and can be either an individual or business entity, on the original application for the Membership. If the STH is a business entity, a contact name must be provided to the Earthquakes. The business entity may request a change in the name of the contact person for its account at any time. A request to change the contact person of an entity must be submitted to Earthquakes in writing.

The Earthquakes’ acceptance of Membership payments for a Membership from any individual or entity who is not the account holder for such Membership does not grant any Membership rights to such individual or entity or cause or require Earthquakes to change the name of the STH on the account. Any rights or privileges associated with a Membership belong only to the account holder of record as indicated on the Earthquakes’ records. The Earthquakes reserve the right to require that any transaction pertaining to a Membership held in a corporate name be supported by appropriate corporate confirmation documents.

Membership accounts and/or account numbers are not transferable from one person or entity to another.

  1. PROHIBITION ON ADVERTISING AND PROMOTION

Tickets or Membership privileges may not be used for advertising, promotion (including contests and sweepstakes) or other trade purposes without the express written consent of The Earthquakes.

  1. PROMOTIONAL USE OF STH IMAGE

The STH or Ticket User grants permission to Earthquakes and MLS (and their respective affiliates, designees, representatives and agents) to utilize the STH or Ticket User’s image, likeness, actions and statements in any live or recorded audio, video or photographic display or other transmission, exhibition, publication or reproduction made of or at the match in any medium or context for any purpose, including commercial or promotional purposes, without further authorization or compensation.

  1. MEMBERSHIP PRIVILEGES SUBJECT TO BYLAWS

STHs agree to abide by applicable rules, regulations, or policies set by the Earthquakes, MLS, and Stadium, including without limitation, the MLS Fan Code of Conduct (https://www.mlssoccer.com/about/fan-code-of-conduct), and any applicable Earthquakes policies or Stadium rules and policies. STHs further acknowledge that they will be bound and agree to abide by any modification or amendment of the foregoing rules, regulations and policies as may apply from time to time.

  1. FAN BEHAVIOR

Each STH and Ticket User is subject to the Ticket Terms (https://www.sjearthquakes.com/legal/ticketterms) and Spectator Waiver (https://www.sjearthquakes.com/legal/spectatorwaiver).

All tickets remain the property of Earthquakes and each is a revocable license which may be withdrawn, and admission refused anytime. STHs are responsible for the actions of themselves and any individual using their seats. Earthquakes reserves the right to terminate the Membership in its entirety if the STH or any individual using the seats engages in disorderly conduct or otherwise fails to follow Stadium rules and regulations. In such a case no refund shall be made of any amounts paid for such Memberships and the STH waives its right to any such refund.

Earthquakes reserves the right to refuse admission or eject any person who violates Stadium polices or whose conduct is deemed disorderly or for the protection of patrons. All persons seeking entry into the Stadium specifically consent to and are subject to metal detector and physical pat-down inspections prior to entry. All bags may be thoroughly searched.

Any STH or Ticket User who behaves in an unruly or disruptive manner, including, but not limited to, foul language, intoxication, vandalism, physical or verbal abuse of other fans, Stadium employees, match officials, players or coaches during, before or after a match may be asked to leave the Stadium. STH of record is responsible for such behavior by anyone using their tickets. Earthquakes reserve the right in the event of such behavior, to terminate your Membership without refund or other compensation.

  1. Distribution of Tickets

STHs will receive their tickets electronically through the Earthquakes mobile app.

  1. Change of Email Address

It is the STHs responsibility to notify the Earthquakes Client Services Team of any change of email address to ensure prompt delivery of tickets, notices and other dated material. Email address changes may also be made through your Account Manager.

  1. No Refund Policy

No refunds, exchanges or cancellations are permitted unless Earthquakes is unable to fill your order. Refunds will not be granted due to a match date or time change.

  1. Rainout Policy

Earthquakes reserve the right to change the date and/or starting time of any event or match and no such change shall entitle the STH to a refund. In the event of cancellation of an event or match that is not later rescheduled, Earthquakes shall refund the STH for the value of the cancelled event as determined in the Earthquakes reasonable discretion.

  1. RESALE OF TICKETS

In the event that STH is deemed to be using their Season Tickets primarily for resale (as determined by Earthquakes in its sole discretion), Earthquakes can terminate STH’s Membership without liability to STH. Furthermore, STH acknowledges that the resale of tickets in violation of California Penal Code § 346 is a misdemeanor and a breach of this Agreement.

  1. RELEASE OF LIABILITY

THE STH, BOTH FOR THE STH AND FOR EACH TICKET USER, ACKNOWLEDGES THE RISKS INHERENT IN ATTENDING A LIVE SPORTING EVENT AND (i) VOLUNTARILY ASSUMES ALL RISKS AND DANGERS arising from or related in any way to attendance at the event in respect of which a ticket has been issued, whether occurring prior to, during or after such an event, including but not limited to the risk of lost, stolen or damaged property and the risk of personal injury or death, including all risk of injury or death resulting from the negligence or misconduct of other patrons, (ii) agrees to be bound by the terms printed on the back of each match ticket provided that if there is any necessary conflict between the terms on the match ticket and the terms of this Agreement, the terms of this Agreement will govern, and (iii) AGREES THAT THE MLS, THE EARTHQUAKES, STADIUM, THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES AND RELATED ENTITIES, AND THEIR RESPECTIVE EMPLOYEES, VOLUNTEERS, PLAYERS, OFFICERS, DIRECTORS, PARTNERS, OWNERS, SPONSORS, CONTRACTORS AND OTHER AGENTS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM SUCH CAUSES AND ARE EXPRESSLY RELEASED FROM SAME.

  1. AGREEMENT MODIFICATION

Earthquakes reserves the right to amend this Agreement in its sole discretion by posting such amendments on www.sjearthquakes.com.

Without restricting the generality of the foregoing, Earthquakes reserve the right to relocate STHs during the Season and at any time during the playoffs to accommodate broadcast or security requirements, or for any other reasonable purpose in the sole discretion of The Earthquakes. STHs will not be eligible for any refunds of any installment payments made prior to the relocation if the STH subsequently chooses to cancel the Membership as a result of the relocation.

  1. General Admission Seating

General Admission seating sections are filled on a first-come, first-served basis. STHs should not leave single seats open.

  1. Notices and Requests

All notices and requests relating to a Membership account, whether or not described above, must be given in writing by the STH, and sent to the attention of Earthquakes Client Services. No notice or request will be effective or acted upon by Earthquakes until received in writing. All correspondence concerning a Membership account should include the account number and daytime phone number for the STH. Notices and requests from Earthquakes are communicated to STHs via several methods, independent of and/or in combination with each other, and include but are not limited to U.S. Postal Service, telephone, e-mail or other social media outlets. It is the STH's sole responsibility to maintain accurate, current and complete contact information on their Membership account.

  1. Governing Law

These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising out of or relating to this Agreement must be brought in the courts in the state of California and county of Santa Clara. The STH knowingly, voluntarily and irrevocably waives any objection it may now or hereafter have to venue or to convenience of forum.

  1. Additional Matters

The foregoing policies and procedures attempt to cover most situations relating to STHs at the Stadium. They do not apply to any matches (home or away) played by Earthquakes at a location other than the Stadium. In the event any issue or matter relating to the Membership is not covered, or if there is a question of interpretation of the policies and procedures or in the event of any dispute between Earthquakes and any STH or Ticket User, or any STH and a third party in regard to the Membership, Earthquakes reserves the right to make all final decisions and determinations and take all actions necessary, in its sole and absolute discretion, to resolve or dispute the issue. Earthquakes further reserves the right to modify and/or terminate any or all of the foregoing policies or procedures from time to time with or without prior notice to STHs.

In order to ensure an excellent experience for all STHs, Membership benefits, including but not limited to, future match exchange program and special events, are subject to change from year to year or/and within a season.

  1. ARBITRATION AGREEMENT:

You may not assign, transfer or sublease any rights or obligations under this Agreement without the prior written consent of Earthquakes. This Agreement is being delivered and is intended to be performed in the State of California, and shall be construed and enforced in accordance with the laws of the State of California. THE PARTIES AGREE TO SUBMIT ANY AND ALL DISPUTES RELATING TO THIS AGREEMENT TO BINDING INDIVIDUAL ARBITRATION WITH JAMS, INC., UNDER ITS RULES AND PROCEDURES THEN IN EFFECT. THE EARTHQUAKES AND YOU WAIVE THE RIGHT FOR A JUDGE OR JURY TO DECIDE ANY CLAIMS RELATING TO THIS AGREEMENT. The parties agree that this Arbitration Agreement extends to any other parties involved in any Claims, including but not limited to any Ticket User and Earthquakes’ employees, affiliated companies, assigns, vendors, service providers and agents. The parties agree that any such arbitration shall occur in Santa Clara County, California. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will not be affected, but will continue to be valid and enforceable to the fullest extent permitted by law. No delay or failure of either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right. Sections 13 and 19 shall survive the expiration or earlier termination of this Agreement.

STH HAS THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT, BUT STH MUST EXERCISE THIS RIGHT PROMPTLY AS SET FORTH HEREIN. If STH does not wish to be bound by this Arbitration Agreement, STH must notify Earthquakes in writing within forty-five (45) days after the date this Agreement is accepted by STH. STH must send their request by calling 408.556.7700 option 1 or sending an e-mail to: **accountserviceteam@sjearthquakes.com**. The request must include STH’s full name, address, account number, and the statement "I reject the Arbitration Agreement contained in my season ticket membership agreement." If STH exercises the right to reject this Arbitration Agreement, the other terms of this Agreement shall remain in full force and effect as if STH had not rejected arbitration.

  1. Acceptance of Terms/Conditions:

Upon remitting any full or partial payment toward your annual Membership dues, or by accepting delivery of your tickets and STH benefits, you acknowledge responsibility for payment of the full annual Membership price, and accept and agree to the complete terms and conditions of the Membership Agreement, subject to any amendments made to the foregoing from time to time.