Merchant Agreement - Wholesaler Program

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.

Recitals

1. Our Program is designed to profitably bring fuel merchants new customers and get existing customers to buy more by offering Promotions to Subscribing Customers through our Program’s platforms, which include our mobile application, our website, and partner applications (collectively, “Platform”).
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2. The Platform uses our proprietary algorithm to set Promotions at a level designed to generate profits and drive new business to you based on your profit margins.
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3. You only pay Upside’s fee when you earn a profit from the transactions on our Platform. Our fee is based on the amount of Incremental Profit we generate for you. See below for additional details.

Terms and Conditions

The parties agree as follows:

1. Authority. You represent and warrant that you have the authority to enter into and bind your entity or organization to this Agreement, including any applicable Affiliates. Upon mutual written consent (which may be via email), this Agreement may apply to agreed to Affiliates. In such instances, references to you will include your Affiliates.
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2. Account. You will create a secure user identification and password necessary to create and maintain your Account on the Platform, and you will take reasonable steps to keep your credentials secure. Unless due to a data breach by us, you are responsible for the acts or omissions of any person who accesses your Account with your credentials. The Platform offers Promotions to Subscribing Customers using certain parameters provided by you, including Profit Margin. You warrant that you will provide us with materially accurate information in your Account (including your Profit Margins) and keep such information up to date. You further agree to monitor your Account.
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3. Anonymized Purchase History Data. We use Anonymized Purchase History Data to run the Program and to determine the Baseline, Expected Baseline Sales and Profit, Incremental Sales and Profit, and Total Profit for each transaction on our Platform. After a Subscribing Customer makes an eligible purchase for a Promotion at your station(s) or store(s), the Platform uses Anonymized Purchase History Data to identify the transaction and the Subscribing Customer. We then direct the amount of the Promotion to the Subscribing Customer in accordance with Upside’s Terms of Service. During the term of this Agreement and for the purpose of running the Program, you hereby appoint us as your agent and attorney-in-fact to receive Anonymized Purchase History Data for up to 12 months from the Effective Date (or such other period agreed to in writing by the parties) and throughout the Term through the method set forth in Exhibit A. We will treat Anonymized Purchase History Data as your Merchant Confidential Information (defined below). You authorize us to share your station(s)’ Program performance with the relevant wholesaler, branded marketer, or refiner supplying your station(s). Personally identifiable information is not required for the use of the Program. At your discretion, you may provide customer loyalty numbers, hashed PANs or other information agreed to in writing. If you provide such additional information, you represent and warrant that you have the authority and consents to do so and will only do so in compliance with applicable laws, rules and regulations.
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4. Reports. We will provide you with access to online reporting that details the Expected Baseline Sales and Profit, Incremental Sales and Profit, and Total Profit for each transaction.
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5. Stores and Other Services. Upon mutual written agreement (which may be via email), the Program may include convenience store items, restaurants, car washes or automotive services. The Program will not include Restricted Items unless agreed to in writing between the parties.
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6. Exclusivity. We will not allow a third-party station to participate in the Program for fuel that is within the Exclusivity Radius as set forth in Exhibit A. The classification (rural, suburban, and urban) of each station is as defined by GreatData’s classifications, which can be found at https://greatdata.com/. In limited instances, we may allow more than one station within an Exclusivity Radius by designating one in First Position and one in Second Position. Stations that are in First Position will have Promotions that are personalized to Subscribing Customers in a manner designed to maximize incremental gallons and profit for such stations. Stations that are in Second Position will have Promotions that are designed to be less incentivizing than the Promotions applicable to the First Position station (e.g., Promotions at a Second Position stations will be a few cents lower than the applicable First Position station’s Promotions), depending on margin and as determined at our sole discretion. We may determine whether a station is in First Position or Second Position. Within a Designated Market Area (DMA), Upside will limit the total station program participation to 30% density to ensure maximum incrementality for your stations.
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7. ‍Promotions and Fees. You will reimburse us for Promotions and pay us the percentage fee set forth in Exhibit A for each transaction by a Subscribing Customer that generates an Incremental Profit for you (“Incremental Profit Fee”).
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8. ‍Payment. You will pay Upside on the terms forth in Exhibit A. You are responsible for all fees and Promotions through the wind-down period. Except if you are using "Central Billing" (i.e., central invoicing through your wholesaler, your brand, franchisor or other third party), you will at all times maintain a valid payment method that we can draw upon on file with your account (i.e., credit card, ACH, etc.). If you fail to make timely payments, among other remedies, we may pause your participation in the Program upon written notice to you or terminate this Agreement after providing 10 days’ prior written notice (both notices may be by email). You may raise good faith billing disputes in writing prior to the due date of your invoice. You agree to pay any amounts not in dispute within the applicable payment term period. If the parties are unable to come to a resolution within 30 days after receipt of the notice, either party may pursue available remedies. Balances unpaid for longer than thirty (30) days will accrue interest charges equal to the lesser of one percent (1.0%) per month for the first month or the largest amount allowable under applicable law and thereafter the lesser of two percent (2.0%) per month or the largest amount allowable under applicable law. Such interest fees will not apply to the portion of the amounts withheld in good faith as set forth above. If we pursue payment and materially prevail, you agree to pay our collection costs (including reasonable attorney fees).
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9. ‍Return on Investment Guarantee. In any calendar quarter, if the average ROI across all of your participating stations with at least one hundred (100) Upside transactions is not at least 15%, Upside will (as its sole and exclusive liability and as your sole and exclusive remedy) refund or credit to your account (as applicable) the Incremental Profit Fees and Promotions paid by you during the calendar quarter in an amount that results in the ROI for such quarter equaling at least 15%; provided, that any such refund or credit will not exceed Incremental Profit Fees and Promotions paid by you during such calendar quarter. In any calendar quarter, if the average ROI across your participating stations with fewer than one hundred (100) Upside transactions is less than or equal to 0.0%, Upside will (as its sole and exclusive liability and as your sole and exclusive remedy) refund or credit to your account (as applicable) the Incremental Profit Fees and Promotions paid by Company during the calendar quarter in an amount that results in the ROI for such quarter being at least 0.0% for such stations; provided, that any such refund or credit will not exceed Incremental Profit Fees and Promotions paid by you during such calendar quarter. Collectively, these two guarantees constitute Upside’s “ROI Guarantee.” The ROI Guarantee will not apply to any quarter that you are not in material compliance with this Agreement (including any quarter that your participation in the Platform has been suspended or terminated for breach by Upside).
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10. ‍Negative Margin Transaction. For any transaction that occurs at a participating station when fuel retail margins are negative (“Negative Margin Transaction”), Upside will limit the Promotion to one (1) cent per gallon. You agree to reimburse Upside for these one cent (1) per gallon Promotions despite such Promotions not generating an Incremental Profit. Negative Margin Transactions will not be included in any ROI Guarantee calculations. If a Participating Station experiences Negative Margin Transactions for a period longer than ten (10) consecutive calendar days, either party may choose to terminate this Agreement with respect to such station(s) with five (5) business days’ written notice.
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11. ‍Term. This Agreement is for the term set forth in Exhibit A. If you terminate this Agreement or if we terminate this Agreement for your material breach (including nonpayment), you will be unable to participate in the Program for a period of 6 months from the effective date of your termination. Following termination of this Agreement, we may allow any other station near your stations to participate in the Program, prohibiting your station from being allowed back on the Program.
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12. ‍Termination for Cause. Either party may terminate this Agreement if the other materially breaches this Agreement and fails to cure such material breach within 30 days of written notice from the other party.
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13. ‍Updates. We may update the Program or Platform in our discretion on a going forward basis. We may update this Agreement by posting updates on our website; provided, that we will use commercially reasonable efforts to notify you (via email or your dashboard) of major updates. Such updates will take 30 days from the date of the update to become effective.
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14. ‍Trademarks. For the purposes of administrating the Program and during the term of this Agreement only, you hereby grant us a revocable, non-exclusive, royalty-free, sub-licensable (to our partners and affiliated entities in connection with the Program only), license to use and display your trademarks, trade names, service marks, logos, and similar designation along with publicly available content about your station(s) or stores(s) (i.e., photos and description of your business) to indicate your participation in the Program. In addition, you grant us a revocable, non-exclusive, royalty-free, sub-licensable (to our partners and affiliated entities in connection with the Program only), license to announce your addition to the Platform. Upside acknowledges that the rights granted in this Section are limited to your rights in such intellectual property. You acknowledge that a grant of such rights is required for your participation in the Program, and we may pause your participation in the Program or terminate this Agreement upon written notice in some instances (i.e., we are unable to display identifiable marks to identify your business) if such rights are revoked. For clarity, as between you and Upside, you own all of your intellectual property rights and content, including all goodwill.
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15. ‍Safety. You agree to take commercially reasonable steps to protect the physical safety of the Subscribing Customers and their property. You further agree to use the Platform and Program only in compliance with applicable laws. If you breach this Section and a third party (including a Subscribing Customer) brings an action or claim against us due to your breach, you agree to make us whole and reimburse us for expenses and costs (including defense and reasonable attorney fees).
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16. ‍Insurance. During the term, the parties agree to maintain commercially reasonable insurance in such amounts and for such risks that are carried by companies engaged in similar business from a financially sound and reputable insurer. Either party may request a certificate of insurance from the other upon written request.
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17. ‍Restricted Use. You will only use our services (including the Platform and your Account) for participation in the Program by you and for no other purpose, including to reverse engineer, copy, scrape, or decompile our source code or algorithms, or knowingly assist another party in using our services for any other purpose.
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18. ‍Optional Feedback. If you choose to make suggestions for correction, change or modification to our offerings or provide feedback about our services (collectively, “Feedback”), you hereby assign any intellectual property rights in such Feedback to us.
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19. ‍Aggregate Data. You acknowledge that Upside uses data that is anonymized and aggregated (“Aggregate Data”) for the purposes of improving its services, including through machine learning. You hereby grant Upside an irrevocable, perpetual, royalty-free, transferable, worldwide license to use Aggregate Data for the sole purpose of improving and running our services. Upside (i) will not include personally identifiable information in Aggregate Data; (ii) will aggregate and anonymize Aggregate Data in a manner that cannot be de-aggregated or de-anonymized; and (iii) will comply with all applicable laws in its use of Aggregate Data.
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20. ‍Mutual Non-Disclosure. You agree (a) to hold Upside Proprietary Information (defined below) in confidence and to take reasonable precautions to protect Upside Proprietary Information, (b) not to divulge any Upside Proprietary Information to any third person, except your own employees who have a need to know for purposes of your participation in the Program, and (c) not to make any use of Upside Proprietary Information except as necessary for your participation in the Program. “Upside Proprietary Information” means all information we provide or make available to you that is either marked as confidential by us in writing or that a reasonable person would deem confidential, sensitive or proprietary, including our software, algorithms, business practices and methods, business plans, baselining methodologies, analyses and expertise in the optimization of intent-based advertising for local commerce. Following termination of this Agreement and upon our request, you will either delete or return to us, all Upside Proprietary Information.
    
    We agree (a) to hold your Merchant Proprietary Information (defined below) in confidence and to take reasonable precautions to protect Merchant Proprietary Information, (b) not to divulge any Merchant Proprietary Information to any third person, except our own employees, contractors, agents and representatives who have a need to know for the purposes of providing or administering the Program or as otherwise provided in this Agreement, and (c) not to make any use of Merchant Proprietary Information except as necessary to provide or administer the Program or as otherwise provided in this Agreement. “Merchant Proprietary Information” means information you provide or make available to us that is either marked as confidential by you in writing or that a reasonable person would deem confidential, sensitive or proprietary, including your Profit Margins, business sales volumes, customers and retail transaction histories. Following termination of this Agreement and upon your request, we will either delete or return to you, all Merchant Proprietary Information.
    
    Upside Proprietary Information and Merchant Proprietary Information does not include information that: (a) is or becomes generally available to and known by the public other than as a result of the violation of this Agreement; (b) is or becomes available to the recipient on a non-confidential basis from a third-party source, provided that such third party was not prohibited from disclosing such information by a legal, fiduciary or contractual obligations to the discloser; (c) was known by or in the possession of the recipient prior to disclosure by the discloser; or (d) was or is independently developed by the recipient without use of any of the discloser’s confidential information.
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21. ‍Representations and Warranties. Each party makes the following representations and warranties to the other party:
    
    (a) the execution, delivery and performance of this Agreement have been authorized by all necessary corporate action and do not contravene any applicable law or the provisions of any agreement to which it is bound;
    
    (b) the individual entering into this Agreement is authorized to do so; and
    
    (c) this Agreement constitutes the legal, valid, and binding agreement of the party enforceable against it in accordance with its terms.‍
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22. Disclaimer. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE DO NOT MAKE ANY REPRESENTATION, WARRANTY, OR OTHER GUARANTY. THE PLATFORM AND THE PROGRAM ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS.‍
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23. Limitation of Liability. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY ONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PROGRAM OR THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE PLATFORM, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW AND EXCEPT IN THE CASE OF PHYSICAL HARM TO PERSON OR PROPERTY OR YOUR OBLIGATIONS TO PAY, IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY EXCEED THE INCREMENTAL PROFIT FEES YOU HAVE PAID TO US DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS CAP. THESE LIMITATION OF LIABILITY PROVISIONS WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.‍
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24. Electronic Notices and Signature. Each party consents to receiving electronic notices (all notices to us should copy legal@upside.com), disclosures, records and other documents that we provide to you related to the Program and this Agreement. We will send communications and documents to you to the email address linked to your Account. We may also send certain communications and documents to the postal address linked to your Account. Any communication or document is deemed received when delivered.‍
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25. Force Majeure. Neither party is responsible for any delay or failure of performance of this Agreement caused by events beyond its reasonable control, including internet failures, failures of banking or ACH networks, fires, telecommunications or power failures, equipment failures, acts or omissions of bad actors or either party’s vendors or suppliers, or acts of God.‍
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26. Entire Agreement and Statement of Non-Reliance. This Agreement, together with all exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The parties further expressly agree and warrant that they are not relying, have not relied, and are not entitled to rely on any representation of any kind or nature not contained in this Agreement.‍
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27. Miscellaneous. This Agreement is governed by and interpreted in accordance with the substantive law, but not the conflicts of law principles, of the State of Delaware. The parties hereby irrevocably submit to the exclusive jurisdiction of the state or federal courts located in the District of Columbia for any lawsuit, action or proceeding arising out of or related to the Agreement. If any provision of this Agreement is found to be invalid or unenforceable by a court of law, all other provisions will be enforced and construed as if the invalid provision were never a part of this Agreement. The failure to enforce any provision of this Agreement will not be considered a waiver. THE PARTIES HEREBY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION. You agree that there are no third-party beneficiaries of this Agreement. We may assign this Agreement to an Affiliate or in the event of purchase of all or substantially all of our assets to which this Agreement relates. You may not assign this Agreement without our advance written consent. Any purported assignment in violation of this provision is null and of no effect. This Agreement is binding upon the successors and permitted assigns of each party. The words “includes” and “including” are not terms of limitation, but rather are deemed to be followed by the words “without limitation.” The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provision.
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28. Defined Terms.
    
    a. “Account” or “Upside Account” means your account established with us that permits you to access the Platform.
    
    b. “Affiliate” means, with respect to an entity, another entity which, directly or indirectly, controls, is controlled by or is under common control with such first entity.
    
    c. “Anonymized Purchase History Data” means the date and time (as captured by your Card Processor) of Card transactions, purchase amounts, Card types, transaction types and non-identifiable Card digits.
    
    d. “Baseline” means a set of Cards for non-Subscribing Customers that exhibit statistically equivalent purchase behavior to a particular Subscribing Customer’s Cards, taking into account sales by month, visits by month, and category of sales by month, in the twelve (12) months (or as much data as available, if only a shorter period of prior data is available) prior to a Subscribing Customer using the Platform for the first time.
    
    e. “Card” means a network-branded payment card, including credit, debit and prepaid cards, or any representation of a card used to complete a transaction at your store.
    
    f. “Card Processor” means an entity that engages in storing, processing or transmitting Card transaction amounts, anonymized Cardholder Data, and timestamps of transactions.
    
    g. “Cardholder Data” means information obtained in connection with a Card transaction.
    
    h. “Expected Baseline Profit” means Expected Baseline Sales multiplied by the percent Profit Margin. Except for fuel which will be on a costs per gallon basis, as defined by Profit Margin below.
    
    i. “Expected Baseline Sales” means the statistically expected sales amount purchased by an individual in the Baseline.
    
    j. “Incremental Sales” means the Subscribing Customer’s total purchase amount minus the Expected Baseline Sales.
    
    k. “Incremental Profit” means the Total Profit minus the Expected Baseline Profit.
    
    l. “Net Profit” means (a) Incremental Profit minus (b) the sum of the following: (i) any Incremental Profit Fees plus (ii) any Promotions.
    
    m. “Preferred Partner” means Motiva Enterprises, LLC (Motiva); BP Products North America, Inc. (BP); Phillips 66 Company (Phillips 66); or Valero Marketing and Supply Company (Valero). means a subscriber to the Platform that is also a customer of your station(s) or store(s).
    
    n. “Profit Margin” means, as applicable, either your per grade profit margin on fuel sales and/or your average profit margin on all goods sold, other than Restricted Items, within your stores, all as reasonably determined by you. For clarity, the Profit Margin for each grade of gasoline or diesel is calculated as the street sign price less Card Fees (currently calculated at 2.1%) times the sign price, less Federal Taxes, less state taxes, less local taxes, less transportation costs, less supply agreement costs (OPIS branded rack price). You will be responsible for maintaining the primary terminals and transportation costs through your Account.
    
    o. “Promotion” means cash rewards offered to Subscribing Customers (subject to Upside’s Terms of Service) and, in some instances, third parties, to incentivize Subscribing Customer purchases.
    
    p. “Restricted Items” means, unless agreed to otherwise in writing, alcohol (in certain situations) and tobacco products, lottery tickets and games, and any other products or services we identify from time-to-time.
    
    q. “ROI” means Net Profit divided by the sum of (i) any Incremental Profit Fees plus (ii) any Promotions.
    
    r. “Subscribing Customer” means a subscriber to the Platform that is also a customer of your station(s) or store(s).
    
    s. “Total Profit” means the total of sales purchased by the Subscribing Customer multiplied by the applicable Profit Margin.

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