IMPORTANT NOTICE: THIS IS A BINDING AGREEMENT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT WISH TO ENTER INTO THESE TERMS OR DO NOT UNDERSTAND THEM, PLEASE DO NOT AGREE TO THE TERMS. YOUR USE OF THE PLATFORM (DEFINED BELOW), CONSTITUTES YOUR AGREEMENT TO THESE TERMS. WE MAY UPDATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS BELOW, SO PLEASE CHECK THESE TERMS REGULARLY. YOU MAY NOT USE THE UPSIDE PLATFORM (DEFINED BELOW) OR CREATE AN ACCOUNT FOR ANY REASON BUT TO PARTICIPATE IN THE PROGRAM (DEFINED BELOW).
THIS FUEL MERCHANT AGREEMENT (this “Agreement”) between you (“you” or “your”) and Upside Services, Inc., doing business as Upside (“Upside,”“we,” or “our”), sets forth the terms and conditions governing your agreement to participate in our incremental profit generation program (“Program”). Capitalized but undefined terms have the meaning set forth in the Defined Terms section of this Agreement. The “Effective Date” of the Agreement is the date you first accept the terms below.
The parties agree as follows:
Anonymized Purchase History Data Retrieval Method
The parties agree to use one of the following methods for retrieving Anonymized Purchase History Data subject to the terms of this Agreement:
(i) from your Card Processor upon your agreement to a Merchant Authorization Agreement;
(ii) from your wholesaler, branded marketer, or refiner supplying your station(s) if Upside has a contractual relationship with them to receive such information, and you hereby authorize your wholesaler, branded marketer, or refiner supplying your station(s) to provide Anonymized Purchase History Data to us on the terms and conditions of this Agreement; or
(iii) using your login credentials on your Card Processor’s websites or other systems of record where Anonymized Purchase History Data is stored.
Under option (iii), you will provide us with the necessary login credentials, including the identification number and password, for each of your Card Processor’s websites so that we can retrieve Anonymized Purchase History Data. If you update your login credentials, you will promptly provide us with those updated login credentials within your Account settings on the Platform. If you do not inform us of changes to your login credentials or allow them to expire, we will continue to generate Promotions using the existing information until you provide us with updated login credentials.
Unless otherwise agreed to through Central Billing, You will make monthly payments in arrears to Upside for the amount of our Incremental Profit Fees and Promotions, which will be billed to the method of payment we have on file within five (5) days after Upside delivers to you each monthly invoice. If your site count increases to more than 200 sites on the Platform, we may increase the invoicing cadence to semi-monthly with 30 days prior written notice.
If you are currently paying via Upside's Top-Up method (i.e., prepayment), Upside may transition you to payment in arrears.
Unless otherwise agreed to in writing, we will invoice your wholesaler directly.
Incremental Profit Fee
The Incremental Profit Fee is 40% multiplied by the difference of Incremental Profit and Promotions.
For stations branded and supplied by one of Upside’s Preferred Partners (or their Affiliates), the Incremental Profit Fee is 35%.
A 0.5 mile radius of your station(s) in urban environments; a 0.75 mile radius of your station(s) in suburban environments (or 1 mile radius if your station(s) are branded and supplied by BP or its Affiliates); and a 1.5 mile radius of your station(s) in rural environments.
The initial term is 90 days. Either party may terminate this Agreement at any time within the initial term with 30 days prior written notice. Thereafter, this Agreement automatically renews for successive one-year terms unless either party provides written notice of non-renewal at least 30 days prior to the end of the current term.
For Valero stations, this Agreement will immediately terminate upon the expiration or termination of the supply agreement between you and Valero.