BP Merchant Agreement

This Merchant Agreement (this Agreement) between you Merchant, you, or your) and Upside Services, Inc. d.b.a Upside (Upside, we, or our) sets forth the terms and conditions governing your agreement to participate in our incremental profit generation program (the Program), including our website and mobile app (the Upside App), by distributing your promotions to Subscribing Customers (the Platform). By creating and/or funding an Account and using the Platform, you agree to be bound by the terms and conditions of this Agreement.

1. The Platform allows you to distribute promotions to Subscribing Customers. You will create a user identification and password necessary to create and maintain your Account on the Platform. Based on the parameters you have set the Platform will generate and distribute promotions to Subscribing Customers. You are responsible for the acts or omissions of any person who accesses your Account with your identification number and password.
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2. Subscribing Customers may redeem a promotion for gasoline, in-store items, car washes, and/or automotive services. After Subscribing Customers make a purchase eligible for a promotion, the Platform identifies the transaction and the Subscribing Customer, deducts the amount of the redeemed promotion from your Account and directs the amount of the promotion to the Subscribing Customer. The Program does not include Restricted Items.
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3. You are required to make an initial deposit of at least $100 per site into your Account. The amount of redeemed promotions and our fees will be deducted from your Account. When your Account balance falls below the Account minimum threshold as determined by Upside, the Platform will automatically add additional funds to your Account (Top-Up).
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4. You appoint us as your agent to take any actions on your behalf that are necessary to provide the Program. Specifically, i) for sites supplied by BP Products North America, Inc (“BP”) or its Affiliates, you authorize BP to supply us, as your agent and on your behalf, Purchase History Data from your Card Processor, ii) for Motiva Enterprises, LLC supplied sites, you authorize Motiva to supply us, as your agent and on your behalf, Purchase History Data from your Card Processor, and/or iii) you authorize us, as your agent and on your behalf, to use your login credentials to access Purchase History Data on your Card Processor’s websites, point of sale system, or other systems of record ,and use the data to generate and administer promotions. Additionally, you authorize us to display your trademarks, trade names, service marks, logos, domain names and any other designations on the Platform or any other medium to indicate your participation in the Program.
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5. To enhance your results with the Program, we encourage you to effectively display all signage provided to promote the Program, including pump toppers, window and door decals, counter signs, and larger format signs.
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6. We will generate promotions based on your parameters and distribute the promotions to Subscribing Customers. We will use the Purchase History Data when available to provide the Program, and specifically determine the Baseline, Expected Baseline Sales and Profit, Incremental Sales and Profit, and Total Profit for each transaction.
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7. You will pay us a fee for each transaction by a Subscribing Customer. For BP Products North America, Inc or Motiva Enterprises, LLC supplied sites, our fee is 35% of the total of the Incremental Profit less the amount of the promotion. For sites not supplied by BP Products North America, Inc or Motiva Enterprises, LLC, our fee is 40% of the total of the Incremental Profit less the amount of the promotion. This fee will be deducted from your Account. For any of your sites with at least one hundred (100) transactions on the Platform in any calendar quarter, Upside guarantees that the average ROI across all transactions will be at least 15%. If not, Upside will remedy the situation by refunding you the fees paid by you over the measured period of time in an amount that results in the ROI for such gas station equaling at least 15%, and will make product or pricing changes to ensure that a 15% adjusted ROI is held.
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8. The Program is not an exclusive arrangement. We may provide programs identical to the Program and other offerings to other persons, including your competitors.
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9. Either Party may terminate this Agreement without penalty by providing thirty (30) days’ notice of termination to the other Party. If you terminate this Agreement, we will stop promotions within thirty-two (32) days after receiving your termination notice and your termination of this Agreement will be effective after all promotions are processed and all fees due to us are paid. If you terminate this Agreement, 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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10. Non-Disclosure
    
    You agree (a) to hold Upside Proprietary Information 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 at any time of Upside Proprietary Information except such use necessary to your participation in the Program. Upside Proprietary Information means all information regarding our business practices and methods, baselining methodologies, analyses and expertise in the optimization of intent-based advertising for local commerce. Following termination of this Agreement and our request, you will either delete or return to us, all Upside Proprietary Information.
    
    We agree (a) to hold your Merchant Proprietary Information 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 at any time of Merchant Proprietary Information except for such uses necessary to provide or administer the Program or as otherwise provided in this Agreement. Merchant Proprietary Information means all information made available to us regarding your Profit Margins (including your costs and the retail prices you charge), business sales volumes, customers and retail transaction histories. Following termination of this Agreement and your request, we will either delete or return to you, all Merchant Proprietary Information.
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11. Representations
    
    Each Party makes the following representations and warranties to the other Party: (a) its 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 executing 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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12. Indemnification and Limitation of Liability
    
    Each Party will indemnify and hold harmless the other Party for losses and expenses (including attorney fees and costs) the other Party sustains as a result of the indemnifying Party’s breach of this Agreement.
    
    IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, LOSS OF DATA, REVENUE, PROFITS (both direct and/or indirect), USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PROGRAM, INCLUDING THE USE OR INABILITY TO USE THE PLATFORM, OR FOR ANY INFORMATION OBTAINED FOR, FROM OR THROUGH THE PLATFORM, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will a Party’s aggregate liability exceed the fees you have paid to us in the 12-month period prior to the event that gave rise to the claim.
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13. Electronic Notices
    
    You consent to receiving electronically all notices, disclosures, records and other documents that we provide to you related to the Program. We will send these communications and documents to the e-mail 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 received, and in your case when received at the address linked to your Account.
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14. Changes
    
    We may make enhancements or changes to the Program and the terms and conditions of this Agreement. We will notify you of changes we believe may be adverse to you. Changes made to this Agreement may be posted on our website, so you should periodically check that site. The changes are effective when made by us or on any effective date in any notice provided to you. You may not make any changes to this Agreement without entering into a written amendment signed by the Parties.
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15. Force Majeure
    
    Neither Party is responsible for any delay or failure of performance of this Agreement caused by events beyond our reasonable control, including Internet failures, failures of banking or ACH networks, fires, telecommunications or power failures, equipment failures, acts or omissions of either Party’s vendors or suppliers, or acts of God.
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16. 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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17. 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. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, with respect to the Program, and, if any provision of this Agreement is found to be invalid or unenforceable, 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 waive all right to trial by jury in any litigation. You agree there are no third-party beneficiaries of this Agreement. We may assign this Agreement to an affiliate following notice to you. You may not assign this Agreement without our advance written consent. 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.”
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18. Definitions
    
    1. Account or Upside Account means your account established with us that permits you to access the Platform, set promotion parameters and fund promotions.
    
    2. Baseline means the probability value based on Purchase History Data of a Subscribing Customer making purchases at one of your gas stations as reasonably determined by us. Baselines for customers using the Mobile App for more than six months at your station will be evaluated for a shift in a manner that is fair for you, Upside, and the customer.
    
    3. Business Day means Monday through Friday, excluding any holiday on which banks located in the District of Columbia are closed.
    
    4. 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.
    
    5. Cardholder Data means information obtained in connection with a Card transaction.
    
    6. Card Processor means an entity that engages in storing, processing or transmitting Card transaction amounts, anonymized Cardholder Data, and timestamps of transactions.
    
    7. Expected Baseline Profit means the Total Profit multiplied by the Baseline.
    
    8. Expected Baseline Sales means a Subscribing Customer’s total purchase amount multiplied by the Baseline.
    
    9. Incremental Sales means the Subscribing Customer’s total purchase amount minus the Expected Baseline Sales.
    
    10. Incremental Profit means the Total Profit minus the Expected Baseline Profit.
    
    11. Net Profit means incremental profit minus any incremental profit fees minus any promotions.
    
    12. Parties means you and Upside collectively (and each individually a Party)
    
    13. Profit Margin means, as applicable, either your per grade profit margin on gasoline sales, your average profit margin on all goods sold, other than Restricted Items, within your stores, your average profit margin on car wash services, and/or your average profit margin on automotive repair services, all as reasonably determined by you.
    
    14. 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.
    
    15. Restricted Items means alcohol and tobacco products, lottery tickets and games, and any other products or services we identify from time to time.
    
    16. ROI equals the Net Profit divided by costs.
    
    17. Subscribing Customer means a subscriber to the Upside app that becomes a customer of your gas stations.
    
    18. Total Profit means the Incremental Sales amount multiplied by the applicable Profit Margin.

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