Last Updated: January 19, 2021
The following provisions (the “General Provisions”) apply to and govern the provision by Mudflap, Inc. (“Mudflap”) to a merchant (“Merchant” and, together with Mudflap, collectively the “Parties” and each, a “Party”) of services related to Mudflap payment instruments presented to Merchant and are an integral part of, and are incorporated by reference in, the Merchant Agreement between Mudflap and Merchant (including these General Provisions, the “Merchant Agreement”). Capitalized terms used but not defined herein shall have the meaning set forth in the Merchant Agreement.
1. SCOPE OF MERCHANT AGREEMENT.
1.1 Term. The term “Term” shall mean, collectively, the initial term and any renewal term under the Merchant Agreement.
1.2 Payment Instruments. Mudflap reserves the right to suspend or discontinue the use of any particular type of Payment Instrument. Mudflap does not represent or warrant that the Services will be provided uninterrupted or error-free and hereby disclaims any representations and warranties not expressly set forth in the Merchant Agreement, including any implied warranties.
1.3 Merchant Locations Covered. The term “Merchant Locations” shall mean the travel stops, convenience stores, cardlock facilities and/or other facilities in the United States owned, operated, franchised, licensed or leased, in whole or in part, by Merchant, and at which customers (the “Customers”) may purchase motor fuel and other products and services through various payment means. The term “Merchant Locations” shall include: (i) Merchant Locations open to the public at commencement of the Term; (ii) Merchant Locations which are newly constructed or acquired by Merchant and opened to the public during the Term; and (iii) Merchant Locations of any subsidiary or commonly owned and controlled affiliate of Merchant. If Merchant sells or otherwise ceases to operate a Merchant Location, such location will no longer be considered a Merchant Location. Merchant shall promptly notify Mudflap of any new or discontinued Merchant Locations.
2. PROCESSING, ACCEPTANCE, POLICIES AND PROCEDURES.
2.1 Point of Sale Devices. Within a commercially reasonable time from the Effective Date, Merchant, at its expense, shall provide and program its Merchant Location point of sale (“POS”) terminals to accept and process Payment Instruments. Merchant shall obtain and maintain configuration and licensing of Merchant’s POS devices to accept and transmit Transactions. Merchant shall provide prompt routing of Transaction data to Mudflap during the Term. Each of Mudflap and Merchant, at its own expense (as to its respective equipment and facilities), shall perform all commercially reasonable measures to establish and maintain during the Term operative communication lines between the POS devices and Mudflap to provide for continuing, uninterrupted Services.
2.2 Policies and Procedures. Merchant agrees to comply with and be bound by the terms and conditions specified in Mudflap’s policies and procedures relating to transaction authorization and processing and data security, as in effect from time to time, which are located on Mudflap’s website at https://www.Mudflap.com/general-provisions/security (the “Policies and Procedures”).
2.3 Acceptance of Payment Instruments by Merchant. Merchant shall accept and honor Payment Instruments tendered by Customers for use at Merchant Locations when such Payment Instruments are presented. Merchant shall not process through Mudflap any Transaction that Mudflap does not authorize. Mudflap shall have no obligation to settle such Transaction or to remit funds to Merchant in relation thereto in the event that Merchant (i) completes a Transaction that is not pre-authorized by Mudflap and is rejected by Mudflap, (ii) completes a Transaction through use of a Payment Instrument without following the Policies and Procedures, or (iii) fails to comply with the other terms of the Merchant Agreement or the Policies and Procedures. Each of Mudflap and Merchant, at its own expense, shall reasonably cooperate to timely conform its operations to the Policies and Procedures and any modifications thereto, as determined by Mudflap in its sole discretion.
2.4 Exclusivity. Merchant agrees to a period of exclusivity of 24 months, during which Merchant will refrain from entering into an agreement with any new third party for services relating to mobile or closed loop purchasing of diesel fuel.
3. SETTLEMENT PROCEDURES AND TRANSACTION REPORTING. Obligations under Sections 3.1 through 3.4 shall apply commencing on the first date Customers conduct Transactions at Merchant Locations.
3.1 Settlement. Mudflap shall cause the aggregate amount of authorized Transactions processed at Merchant Locations on any Transaction date (the “Aggregate Transaction Amount”), less any applicable fee (the “Settlement Amount”), to be timely remitted to Merchant, in accordance with the Merchant Agreement, the provisions of Section 2.1(b) (if applicable) and this Section 3, and the Policies and Procedures (the “Settlement”). Settlement shall occur by Automated Clearing House (“ACH”) direct deposit to Merchant’s bank account (or in such other manner as may be mutually agreed upon in writing by the Parties); provided that Settlement shall occur by ACH withdrawal from Merchant’s bank account if fees, Chargebacks (defined in Section 3.3) or other adjustments exceed the Aggregate Transaction Amount. The Settlement Amount shall be calculated and Settlement shall be consummated as set forth in the Merchant Agreement, subject to adjustments permitted under Sections 3.2, 3.3 and 3.4 hereof.
3.2 Settlement Disputes by Merchant. If Merchant disputes the accuracy of a Settlement Amount, it shall provide written notice thereof to Mudflap within thirty (30) days of Merchant’s receipt of such Settlement Amount. In such event, the Parties shall cooperate in good faith and with due diligence to resolve the dispute. In the event the Parties are unable to resolve the dispute, the dispute shall be finally resolved by arbitration pursuant to Sections 10.3 and 10.4 below. Upon resolution of such dispute, reconciliation shall be made within ten (10) Business Days by the Parties (and the next payable Settlement Amount shall be properly debited/credited, as the case may be). In the event that notice of a Merchant dispute regarding the accuracy of any Settlement Amount is not timely received by Mudflap, as set forth herein, Merchant shall be deemed to have waived its right to dispute the same and Mudflap shall have no liability in regard thereto. A “Business Day” shall be any day other than a Saturday, Sunday or U.S. federal holiday.
3.3 Transaction Disputes by Customer; Chargebacks. In the event a Customer disputes the accuracy of an authorized Transaction (whether due to mistake, third party fraud, or any other reason), Mudflap and Merchant shall cooperate in good faith with Customer to resolve such dispute. Mudflap shall have sole and final discretion to determine the resolution to such dispute. If Mudflap determines that a chargeback to Merchant (a “Chargeback”) of the amount of the disputed authorized Transaction is warranted, Mudflap shall reconcile the Transaction pursuant to Section 3.4 below. If Mudflap determines that additional funds are due Merchant, Mudflap shall make reconciliation in the next payable Settlement Amount.
3.4 Settlement Adjustment Events. Notwithstanding the fact that a Transaction was properly authorized by Mudflap and processed by Merchant, in the event that any of the following occurs, Mudflap shall be entitled to offset the applicable amount against the next payable Settlement Amount (or be reimbursed by Merchant therefor, at Mudflap’s request):
(i) A documented mistake in a Transaction amount charged to the Customer’s account found outside the scope of a Chargeback;
(ii) A determination that a Chargeback is warranted under Section 5.3 above; or
(iii) Fraudulent or willful misconduct on the part of Merchant in processing a Transaction (as confirmed by commercially reasonable investigatory measures employed or approved by Mudflap) which results in the failure or refusal of a Customer to make payment to Mudflap.
Following expiration or termination of the Merchant Agreement, Mudflap shall bill Merchant, and Merchant shall pay Mudflap within ten (10) Business Days for all amounts due in respect to Section 3.4(i)-(iii) above.
3.5 All transaction data and information obtained as a result of processing a Mudflap transaction shall be and will remain the property of Mudflap and shall not be divulged to any third party without the express written consent of Mudflap.
4. MARKETING MATERIALS.
Merchant shall conspicuously and continuously display Mudflap’s signs, emblems, deals, logos and insignias (“Mudflap Marks”) at Merchant Locations, and on Merchant’s website and Merchant’s mobile app, as reasonably directed by Mudflap and utilizing pre-approved Mudflap Marks in accordance with any stipulations, guidelines or restrictions specified by Mudflap. The Mudflap Marks shall be used to notify Customers that Payment Instruments may be used at Merchant Locations and to otherwise facilitate the use of Payment Instruments. Merchant shall not use Mudflap Marks in any other manner without the prior written consent of Mudflap in each instance. Mudflap will provide Merchant with materials bearing the Mudflap Marks for display at the point of purchase. Mudflap may revoke this license as to Mudflap Marks at any time and Merchant shall immediately thereafter discontinue the display and any other use thereof.
5. INDEMNITY.
5.1 Merchant Indemnity. Merchant shall defend, indemnify and hold harmless Mudflap, its parents, subsidiaries, affiliates, members, and each of their employees, owners, officers and agents from and against all claims, causes of action, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, and any investigation, action or proceeding brought by any Federal or State regulator (the “Claims”), arising out of, or due, directly or indirectly, to (i) payments Mudflap makes to Merchant based on incorrect, fraudulent or unauthorized Transactions; (ii) any breach of any obligation of Merchant under the Merchant Agreement; (iii) the quality, specifications or other attributes of any fuel or other products or services sold to Customer by Merchant through use of a Payment Instrument or otherwise; (iv) the untimely or inaccurate provision of any Discount Information by Merchant to Mudflap; (v) any unauthorized access to or any use, theft, modification or loss of personally identifiable information (“PII”) or Transaction data in the possession or control of Merchant; and/or (vii) any negligent act or omission of Merchant in connection with Merchant’s performance under the Merchant Agreement, except with respect to each of (i) – (vii) above to the extent such Claim is caused by the negligence or willful misconduct of Mudflap.
5.2 Mudflap Indemnity. Mudflap shall defend, indemnify and hold Merchant harmless from and against any Claims arising out of or due, directly or indirectly, to (i) any breach of any obligation of Mudflap under the Merchant Agreement, (ii) any unauthorized access to or any use, theft, modification or loss of PII or Transaction data in the possession or control of Mudflap, and/or (iii) any negligent act or omission of Mudflap in connection with Mudflap’s performance under the Merchant Agreement, except with respect to each of (i) – (iii) above to the extent such Claim is caused by the negligence or willful misconduct of the Merchant.
5.3 Indemnification Administration. The indemnified Party shall provide prompt written notice to the indemnifying Party upon discovery of any Claims. Upon the indemnified Party providing such notice, the indemnifying Party shall perform its obligations hereunder and have the right to exercise control over all aspects of the Claims, including selection of legal counsel; provided that the indemnifying Party shall not admit to liability on behalf of the indemnified Party or agree to any settlement terms without the indemnified Party’s prior written consent, which shall not be unreasonably withheld. The indemnifying Party shall not be responsible for fees or costs incurred by the indemnified Party prior to being provided written notice of its indemnification obligations under this Section 5.
6. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants that: (i) it is a duly organized, validly existing organization in good standing in each jurisdiction where it is necessary to perform under the Merchant Agreement; (ii) it has full legal right, power and authority to execute, deliver and perform under the Merchant Agreement; (iii) each person executing, delivering or performing under the Merchant Agreement on its behalf has the authority and legal capacity to do so; (iv) upon its execution of the Merchant Agreement, the terms and conditions thereof shall be binding upon such Party and enforceable against it in accordance with the terms thereof and hereof; (v) its obligations under the Merchant Agreement, and the Merchant Agreement itself, do not violate the terms of any agreement between it and a third party; (vi) its actions related to, and in performance of, the Merchant Agreement comply and shall continue to comply with all applicable laws; (vii) its performance under the Merchant Agreement shall not violate the intellectual property rights of any third party; and (viii) it is sophisticated with knowledge and experience sufficient to enable it to, by itself or with the assistance of its attorneys and/or advisors, evaluate the terms of the Merchant Agreement, and merits and risks of entering into the Merchant Agreement.
7. CONFIDENTIALITY.
7.1 Confidential Information. The Parties acknowledge that, in order to effectuate the Merchant Agreement, Mudflap and Merchant may share confidential and/or proprietary information related to each Party’s respective business, that is not generally known or readily ascertainable by third parties at the time of disclosure and that the disclosing Party desires to protect against unrestricted disclosure or competitive use, including business records, financial information, operations and technical information, marketing or sales information, designs and specifications, data models, ideas, inventions, research, know-how, processes, algorithms, formulas, agreements with third parties, and any associated data, compilations, and analyses of the foregoing, regardless of its form or embodiment or the manner in which the disclosure is made, whether tangible or intangible (written, oral, electronic, magnetic or otherwise) (the “Confidential Information”). The "Discloser" is the Party disclosing and the "Recipient" is the Party receiving the Confidential Information.
7.2 Exclusions. “Confidential Information” will not include information (i) that is publicly available at the time of disclosure, (ii) which becomes publicly known other than as a result of disclosure by Recipient, (iii) that is already in Recipient’s possession or known to it at the time of disclosure (as evidenced in documentation), through no wrongdoing of Recipient, (iv) which is rightfully obtained by Recipient from third parties (as evidenced in documentation), or (v) that is or was independently developed by Recipient without the use of the other Party’s Confidential Information (and such independent development is documented in a contemporaneous writing).
7.3 Obligation of Confidentiality. Recipient shall keep in strict confidence all Confidential Information of Discloser and not disclose or use such Confidential Information except (i) in connection with the performance of such Recipient’s obligations under the Merchant Agreement, (ii) for the exercise of Recipient’s rights under the Merchant Agreement, (iii) in connection with Recipient’s relationship with a Customer, in which event Recipient shall use or disclose only such Confidential Information as pertains to such Customer; and (iv) as otherwise required by law or expressly permitted under the Merchant Agreement. Recipient shall use at least the same degree of care as it uses with respect to its own Confidential Information (and in no event less than reasonable care) to protect the same from unauthorized use or disclosure. Each Party shall inform its employees, contractors and agents as to the confidential and proprietary nature of the Confidential Information to which they may be exposed and take necessary actions to cause such employees and agents to abide by the terms hereof.
7.4 Permitted Disclosure. Notwithstanding the foregoing, each Party may disclose the other Party’s Confidential Information to the extent required by order or direction of a court, government agency or other governmental body of competent jurisdiction in the matter (with respect to which Recipient shall, to the extent legally permitted to do so, promptly provide written notice to Discloser to allow Discloser to seek a protective order or other appropriate remedy or restriction on disclosure). In the event that such protective order or other remedy is not obtained, or Discloser waives compliance with the provisions of this Section 7, Recipient shall only furnish that portion of Confidential Information for which Discloser has expressly waived compliance or that Recipient is legally required to disclose.
7.5 Duration of Duty. Recipient's duty to protect Confidential Information hereunder shall be for the Term and extend to three (3) years after the expiration or termination of the Merchant Agreement, except to the extent the same no longer qualifies as "Confidential Information" hereunder.
7.6 No License or Warranty. All Confidential Information remains the property of the Discloser and no license or other transfer of any intellectual property right is granted or implied by the Merchant Agreement or any related disclosure. Each Party acknowledges that all Confidential Information disclosed under the Merchant Agreement is delivered "as is" and Discloser makes no representation or warranty with respect to the accuracy or completeness thereof or its suitability for any particular purpose.
7.7 Remedies. The Parties agree that unauthorized use or disclosure of Confidential Information in violation of the Merchant Agreement will cause Discloser irreparable injury for which it would have no adequate remedy at law. If it reasonably appears that a Party has disclosed (or has threatened to disclose) Confidential Information of the other in violation hereof, the owner of such Confidential Information shall be entitled to seek immediate equitable relief, including injunction and specific performance (without evidence of damages or a showing of insufficiency of monetary damages and without posting a bond) to restrain the other from disclosing (in whole or in part) the Confidential Information, in addition to any other remedy available at law or in equity.
8. DEFAULT AND REMEDIES, LIMITATION OF LIABILITY.
8.1 Default. “Default,” whether used as a verb or a noun, shall mean (i) the failure by a Party to perform any material term contained in the Merchant Agreement, (ii) an assignment by a Party to its creditors or a failure or inability to pay its debts as they mature, or (iii) the filing by or against a Party of a petition in bankruptcy, reorganization or other similar debt or receivership proceeding.
8.2 Notice of Default; Remedies. Except with respect to a default relating to the payment of money for which no notice or cure period shall apply, if a Party defaults in its performance under the Merchant Agreement and fails to cure such default within twenty (20) days after receipt of written demand from the non- defaulting Party, then the non-defaulting Party may (i) waive the default; (ii) seek equitable relief under Section 8.5 below, including specific performance or emergency judicial relief; and/or (iii) terminate the Merchant Agreement upon written notice to the defaulting Party. The Party may thereafter pursue, at its election, any available remedies in equity or at law, including damages, subject to the limitations and procedure prescribed in the Merchant Agreement, including Sections 8.3 through 8.6.
8.3 Arbitration Agreement; No Class Arbitration. Any dispute, controversy or claim arising out of, relating to or in connection with the Merchant Agreement, including disputes, controversy or claims arising out of the breach, termination or validity of the Merchant Agreement, and whether legal or equitable, shall be finally resolved by arbitration. The arbitrator or arbitration tribunal, as set forth in Section 8.4, shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND EXPRESSLY WAIVE THE RIGHT TO ARBITRATE ON ANY TYPE OF CLASS, REPRESENTATIVE OR OTHER MULTI-PARTY BASIS. THE ARBITRATOR OR ARBITRATION TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S OR ONE ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S OR ARBITRATION TRIBUNAL'S POWER TO RULE ON ITS OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR OR ARBITRATION TRIBUNAL HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS SECTION 8.4 AGREEMENT TO ARBITRATE WILL REMAIN IN FORCE.
8.4 Arbitration Proceeding. Either Party may institute an arbitration proceeding by filing a claim with JAMS in San Francisco, CA. At the time of filing the claim the filing Party shall provide the other with a copy of the filing. Any arbitration shall be undertaken pursuant to the Federal Arbitration Act, where applicable, and the decision of the arbitrator shall be final, binding, and enforceable in any court of competent jurisdiction. Arbitration shall be held in San Francisco, CA, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”), or, upon mutual agreement of the Parties, the JAMS Optional Expedited Procedures. There shall be one (1) arbitrator unless the amount in controversy exceeds $1,000,000, in which case either Party may elect to require a panel of three (3) arbitrators. The single arbitrator shall be selected by mutual agreement of the Parties, and if the Parties cannot agree, the arbitrator shall be selected as prescribed the Rules. In the event the amount in controversy permits one Party to elect to require a panel of three (3) arbitrators, and a Party exercises that right, each Party shall select one arbitrator and the two arbitrators shall select an independent third arbitrator to act as the chief arbitrator. The Parties shall share equally the fees and expenses of the arbitrator(s) until conclusion of the matter. The arbitrator(s) shall award the prevailing Party its costs and attorneys’ fees in connection with the arbitration and shall order that the prevailing Party be reimbursed for its share of arbitrator and JAMS fees incurred. The decision of the arbitrator shall be accompanied by a reasoned opinion and is subject to the limitations stated in this Section 8. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
8.5 Emergency Relief. If either Party determines the need to obtain emergency or preliminary injunctive relief, that Party shall notify JAMS and the other Party, in writing, of its intent to seek injunctive relief of the matter. The Emergency Relief Procedures set forth in Rule 2(c) of the Rules shall govern such process.
8.6 Nature of Remedies; Limitation of Liability. All remedies under the Merchant Agreement shall be deemed cumulative and not exclusive. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, WHETHER IN AN ACTION OF CONTRACT OR TORT, FOR ANY LOST PROFITS, LOSS OF USE, LOST BUSINESS OPPORTUNITIES, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH SERVICES PROVIDED UNDER THE MERCHANT AGREEMENT, EACH OF WHICH IS HEREBY PRECLUDED AND WAIVED BY AGREEMENT OF THE PARTIES, EVEN IF THE OTHER PARTY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT SUCH DAMAGES ARISE OUT OF THE WILLFUL MISCONDUCT OF THE OTHER PARTY.
8.7 Third Party Beneficiaries. Each supplier, service provider or subcontractor retained or engaged by Mudflap in connection with the Services (collectively, the “Service Provider”) is hereby expressly made a third party beneficiary of and to all rights and remedies of Mudflap hereunder.
8.8 Survival. Accrued settlement, reporting and payment obligations, together with the provisions of Sections 3.4, and 5 – 8 and 10 shall survive the expiration or termination of the Merchant Agreement.
11. CHANGES AND NEW TERMS.
Mudflap may change the terms of the Merchant Agreement, Schedule A thereto, these General Provisions and the Policies and Procedures, as well as effect new terms (including, without limitation, adding new or changing fees and payment or settlement terms), from time to time in its sole discretion (each a “Change”). Mudflap will give notice of a Change in writing, or through its website or online portal. Merchant’s use of the Services after ten (10) days from the date notice of a Change was given constitutes acknowledgment and acceptance of the Change, as of the actual effective date of such Change.
12. MISCELLANEOUS PROVISIONS.
Time is of the essence in the Merchant Agreement. Except with respect to the acceptance and processing of Transactions, if the terms of the Merchant Agreement require performance of any act or the expiration of any time period on a non-Business Day, the performance of such act or expiration of such time period shall be the next Business Day. The terms of the Merchant Agreement shall not be construed in favor of or against either Party, but shall be construed as if Merchant and Mudflap jointly prepared the Merchant Agreement because both Parties are sophisticated business parties who had sufficient opportunity to consult with legal counsel prior to entering into, and agreeing to, the Merchant Agreement. If any provision of the Merchant Agreement is held to be void or unenforceable, such provision will be deemed modified so as to conform as nearly as possible to the void or unenforceable provision while still remaining valid and enforceable, and the remaining terms of the Merchant Agreement shall not be affected. The word “including” wherever used in the Merchant Agreement shall be deemed to be followed by the words “without limitation.” The Merchant Agreement may be executed electronically and may be transmitted by facsimile, email or in original. The Merchant Agreement may be executed in any number of counterparts, each of which (assuming no modification or alteration) will constitute an original, and all of which, when taken together, will constitute one and the same instrument. It is the intent of the Parties that, to the extent lawful, the laws of the State of Delaware, govern the validity and interpretation of the Merchant Agreement. Except as otherwise provided in the Merchant Agreement, the rights of Merchant may be assigned, in whole or in part, only upon the prior written consent of Mudflap. Mudflap may assign the Merchant Agreement, in whole or in part, provided that the assignee assumes all obligations of Mudflap under the Merchant Agreement. The Merchant Agreement embodies the entire understanding between the Parties with respect to the subject matter thereof and shall be binding upon and inure to the Parties, their respective successors and assigns.
