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 THESE TERMS OR USE OUR PLATFORM (DEFINED BELOW). YOUR USE OF OUR PLATFORM (DEFINED BELOW), CONSTITUTES YOUR AGREEMENT TO THESE TERMS. WE MAY UPDATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS BELOW, SO PLEASE CHECK THEM REGULARLY. YOU MAY NOT USE OUR PLATFORM 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. 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.
2. Dashboard. The Platform offers Promotions to Subscribing Customers using parameters provided by you in your Account, including your Profit Margin. You warrant that you will provide us with materially accurate information in your Account and keep such information reasonably up to date. Your Account will provide you with online reporting that details Expected Baseline Sales and Profit, Incremental Sales and Profit, and Total Profit for each transaction. You agree to use information provided to you by Upside about any Subscribing Customer only for the purposes of validating the Program and for no other purpose. You further agree to create a secure user identification and password for your Account, and to take reasonable steps to keep such credentials secure. Unless due to a breach by us, you are responsible for the acts or omissions of any person who accesses your Account with your credentials.
3. Anonymized Purchase History Data.
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   a. Overview.  To determine if Upside brought you an Incremental Sale, we use 12-month historical Anonymized Purchase History Data to  calculate the Baseline, Expected Baseline Sales and Profit, Incremental Sales and Profit, and Total Profit for each transaction on our Platform. We match purchases by our Subscribing Customers who claim a Promotion at your sites to calculate if there was an Incremental Sales and direct Promotion to the Subscribing Customer in accordance with Upside’s Terms of Service. You agree to provide Anonymized Purchase History Data on a 12 month rolling basis during the Term pursuant to the agreed to method in Exhibit A solely for the purpose of running the Program. You authorize us to share your station(s)’ Program performance with your wholesaler, branded marketer, or refiner supplying your station(s).
   
   b. Prohibition on Re-Identification. We have structured our Program so that you send us only de-identified information.  As a condition for using our Platform, Subscribing Customers affirmatively consent to Upside using data we collect from them to locate or verify their transactions in Anonymized Purchase History Data. In all other respects, Upside will ensure that Anonymized Purchase History Data that qualifies as de-identified data will remain qualified as de-identified data as defined by applicable data privacy laws, rules or regulations (“Applicable Privacy Laws”).  Except as expressly set forth above, Upside will make no attempt to re-identify any individual to whom such Anonymized Purchase History Data relates, will publicly commit to maintaining and using such data without attempting to re-identify it, and will take reasonable measures to prevent re-identification as such term is defined by Applicable Privacy Laws.
   
   c. Additional Information.  At your discretion and with mutual written consent, you may provide us with hashed customer loyalty numbers, hashed PANs or other agreed to information.  If you provide such additional information, you represent and warrant that you have the authority and necessary consents to do so and will only do so in compliance with Applicable Privacy Laws.
4. ‍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 expressly agreed to in writing between the parties.
5. ‍Exclusivity. We will not allow a third-party merchant to participate in the Program for fuel that is within the “Exclusivity Radius” defined in Exhibit A, except as expressly set forth below.  The classification (rural, suburban, and urban) of each station is as defined by CARTO, GreatData or similar classifications as applied uniformly by Upside.  In limited instances, we may allow more than one merchant within an Exclusivity Radius by designating one in First Position and one in Second Position. Merchants 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 merchants. Merchants that are in Second Position will have Promotions that are designed to be less incentivizing than the Promotions applicable to the First Position merchant (e.g., Promotions at a Second Position merchant will be a at least one cent lower than the applicable First Position merchant’s Promotions), depending on margin and as determined at our sole discretion. We may determine whether a merchant is in First Position or Second Position.
6. ‍Promotions and Fees. You will reimburse us for Promotions and pay us the percentage Incremental Profit Fee set forth in Exhibit A for each transaction by a Subscribing Customer that generates an Incremental Profit for you (“Incremental Profit Fee”). All fees due will be calculated in accordance with Upside’s methodology for calculating Incremental Profits.
7. ‍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 (i.e., until your sites are removed from the Platform in accordance with the terms of this Agreement).  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 within 30 days 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 dispute 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).
8. ‍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 for this guarantee) refund or credit to you (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 low volume situations where your participating stations see fewer than one hundred (100) Upside transactions and your ROI is less than or equal to 0.0%, Upside will (as its sole and exclusive liability and as your sole and exclusive remedy for this guarantee) refund or credit to you (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 “ROIGuarantee.” 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).
9. ‍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.
10. Data Feed Malfunction. You acknowledge that the Anonymized Purchase History Data is necessary for participation in the Program. Upon Upside’s request, you agree to provide timely (usually within three (3) business days) and commercially reasonable assistance if your Anonymized Purchase History Data feed is malfunctioning and such malfunction can be mitigated by your actions. To preserve Subscribing Customer experience, you agree to pay for Promotions redeemed by Subscribing Customers even if such transaction does not generate an Incremental Profit along with Upside’s Incremental Profit Fee (using Upside’s current methodology for data outages) on such transactions during a malfunction. Upside may remove affected sites from the Platform if such Anonymized Purchase History Data issue continues for over 30 days. If such removal is due to your material breach of this Section, it will be deemed a material breach of this Agreement, and among other remedies, any exclusivity rights may be suspended.
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), among other remedies, 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.
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.
13. ‍Updates. We may update the Program or Platform at our reasonable 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. Please review this page at least intermittently.
14. ‍Trademark Use for Platform. During the Term, and for the purposes of administering the Program (including appearing on the Platform and for noting your participation in the Program), 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 store(s) (i.e., photos and description of your business) to announce and indicate your participation in the Program. We agree to use your trademark in accordance with any trademark policy that you share with us at legal@upside.com. We acknowledge 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.
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).
16. ‍Restricted Use. You will only use our services (including the Platform and your Account) to participate in the Program 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.
17. ‍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 an irrevocable, perpetual, royalty-free, worldwide, license to any intellectual property rights in such Feedback to us.
18. ‍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. Upside assumes liability for its use of Aggregated Data.
19. ‍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, contractors, agents and representatives 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; provided, that you may maintain a copy as necessary for accounting and legal purposes and we may keep archival copies consistent with your disaster recovery practices (if such information is in archival form, not used for any other purpose, and maintained confidentiality).
    
    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, administering or validating 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 Anonymized Purchase History Data, your Profit Margins, business sales volumes, customers and retail transaction histories. Upon your request, we will either delete or return to you, all Merchant Proprietary Information; provided, that we may maintain a copy as necessary for accounting and legal purposes and we may keep archival copies consistent with our disaster recovery practices (if such information is in archival form, not used for any other purpose, and maintained confidentiality).
    
    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.
    
    The receiving party may disclose the disclosing party’s Proprietary Information if required to comply with binding governmental orders; provided, that the receiving party: (i) gives the disclosing party reasonable written notice (if permitted by law) to allow the disclosing party to seek a protective order or other appropriate remedy; (ii) discloses only such information as is required by the governmental entity; and (iii) uses commercially reasonable efforts to obtain confidential treatment of such information disclosed.
20. ‍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.‍
21. 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.‍
22. 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.‍
23. Alpha and Beta Products. From time to time, we may offer alpha or beta models of the services (each, a “Trial”). If you choose to participate, we reserve the right, in our absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law. Any Trial version of any software or service is provided “AS IS” and without any warranty whatsoever. You may elect not to participate in any such Trial.
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.‍
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.‍
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 (including any confidentiality 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.
27. Publicity. Unless you provide us written notice otherwise (which may be via email to legal@upside.com), we may use your logo or trademark in compliance with your trademark policy in publicity and marketing materials during the Term. If you provide notice after our initial use, we will cease using your logo or trademark for this purpose on a going forward basis within 15 days of receiving such notice. Upon mutual written consent, Upside may prepare, publish and distribute, for its sales, marketing, advertising and similar purposes, one or more case studies on Upside’s impact and performance. Upside will not include any specific figures or data (transactions, customer counts, etc.) in such case study and provide you with an opportunity to review and comment on such case study before its publication.‍
28. 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. In addition, you agree to bring any cause of action or claim solely on an individual basis (on behalf of you and any Affiliates) and agree to not consolidate or seek class treatment of such claim or action. The parties agree that there are no third-party beneficiaries of this Agreement. All provisions regarding liability and limits thereon, indemnification, warranties, these miscellaneous terms and confidentiality rights will survive the termination 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.
29. Defined Terms.
    
    a. “Account” or “Upside Account” means your account established with us that permits you to access the Upside dashboard.
    
    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. Upside treats Expected Baseline Sales as non-Incremental Sales.
    
    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 (multiplying your Incremental Sales by your GrossMargin will yield the same results).
    
    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; BP Products North America,Inc.; Phillips 66 Company ; or Valero Marketing andSupply Company as such list may be updated from time-to-time by providing 30 days prior written notice to you (which may be via email or your dashboard).
    
    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, money orders 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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