SHELL OIL PRODUCTS US WHOLESALE MARKETER EXCENTUS FUEL REWARDS PROGRAM PARTICIPATION AGREEMENT

Transcription

1 SHELL OIL PRODUCTS US WHOLESALE MARKETER EXCENTUS FUEL REWARDS PROGRAM PARTICIPATION AGREEMENT 1. BACKGROUND. (a) Shell Oil Products US ( Company ) has entered into a Fuel Rewards Network Participation Agreement with Excentus Corporation ( Excentus ) creating a marketing program between the parties to provide consumers with savings in conjunction with their fuel purchases in certain marketing areas in the United States. (b) Excentus provides, operates and manages a fuel rewards network with multiple participants involving, among other things, the issuing and redeeming of fuel rewards to members who do business with the participants under a common marketing program name and specifications (the Fuel Rewards Network or FRN ). (c) Retailers and other marketers that enter into agreements with Excentus to participate in the FRN will offer loyalty program members rewards earned on qualifying purchases. Member rewards may be used by loyalty program members to receive cents per gallon discounts on purchases of fuel at participating Shell branded retail facilities in program markets ( Fuel Rewards ). Excentus, retailers and other marketers may revise their loyalty programs from time to time. (d) As part of the FRN, Excentus and Company will create a separate and optional participant reward issuance program branded under a Shell name whereby wholesalers ( Wholesaler(s), with whom Company has an agreement authorizing the marketing of Shell branded motor fuels at Shell branded retail facilities ( Wholesale Marketer Agreement )), may elect to issue rewards to members for qualifying purchases made at their participating Shell branded retail facilities that can be redeemed for Fuel Rewards (the Shell Fuel Rewards Program ). Company may revise the Shell Fuel Rewards Program from time to time. (e) This Participation Agreement states the terms and conditions applicable to participation in the FRN, enrolls Wholesaler in the FRN for the redemption of Fuel Rewards at Wholesaler s Shell branded retail facilities selected by Wholesaler on the Shell Source website, and allows Wholesaler to enroll in the optional Shell Fuel Rewards Program at Wholesaler s Shell branded retail facilities selected by Wholesaler on the Shell Source website. 2. AGREEMENT TO CONTRACT ELECTRONICALLY. Wholesaler and Company agree to enter into this Participation Agreement electronically and agree that this Participation Agreement shall be legally binding on the parties. Wholesaler agrees that Company may send notices and otherwise communicate with Wholesaler about this Participation Agreement by . Wholesaler agrees to update its account information on the Shell Source website, under User Profile, for changes in Wholesaler s physical or address. Company is not responsible if Wholesaler does not receive notice from Company due to incorrect addresses or other circumstances beyond Company s control

2 3. PAYMENT/SETTLEMENT FOR FUEL REWARDS REDEEMED. Wholesaler shall pay 3.5 cents per gallon of fuel for which Fuel Rewards are redeemed by loyalty members at Wholesaler s participating Shell branded retail facilities. Excentus shall reimburse and settle with Wholesaler for any remaining portion of Fuel Rewards redeemed by loyalty members at Wholesaler s participating Shell branded retail facilities. To facilitate settlement, Wholesaler will maintain a settlement bank account. Wholesaler will provide Excentus with all of the following bank account information: name of the bank, physical address of the bank, bank contact with telephone number, ABA routing number and account number for the settlement bank account. Wholesaler will also authorize Excentus bank to credit the settlement bank account via ACH transaction. For any questions related to settlement by Excentus, please contact the Shell Solutions Center at HI-SHELL. For any amounts due Company under this Participation Agreement, including but not limited to the cost of installing the Excentus Reward Link box (loyalty server), Wholesaler authorizes Company to net, recoup, or offset the amount against Wholesaler s account with Company. 4. SITE READINESS REQUIREMENTS. Wholesaler will upgrade the EPOS equipment and software and dispenser firmware at Wholesaler s expense, at each of Wholesaler s participating Shell branded retail facilities, to the versions required by Company, as such requirements may change from time to time. Wholesaler will be required to install, or have installed, and to use Excentus proprietary software at each of Wholesaler s participating Shell branded retail facilities. Wholesaler is required to house the software in a safe and secure environment that meets the operational requirements of the specified hardware. On an as-needed basis, Excentus will provide updates to the software resident at participating Shell branded retail facilities. It is the Wholesaler s responsibility to ensure remote access to the software so that such updates can take place. All software updates will be coordinated with Wholesaler in advance. Wholesaler will be required to install, or have installed the Excentus Reward Link box (loyalty server) at participating Shell branded retail facilities at Wholesaler s expense. Wholesaler and its participating Shell branded retail facilities will only use the software for the purposes permitted by this agreement. Wholesaler and its participating Shell branded retail facilities will not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the software in any way, (b) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious, including material violative of third party privacy rights, (c) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts or programs, (d) interfere with or disrupt the integrity or performance of the software, the interface to the software or the data or content contained therein, (e) use or copy the software, the interface to the software or any portion thereof, or knowingly allow another party to do so, except as expressly permitted hereunder, (f) modify the software, the interface to the software or any portion thereof, or knowingly allow another party to do so, (g) attempt or knowingly allow another party to attempt to decompile, reverse engineer, hack or otherwise gain unauthorized access to, use or modify the source code or protocols from the object code for the software, or (h) use the software in any manner to assist or take part in the development, marketing, or sale of a product competitive with the software. Upon receipt of the notice of suspension of licenses to Excentus proprietary software provided hereunder, Wholesaler shall - 2 -

3 discontinue its use of the software and, upon such suspension, may no longer redeem Fuel Rewards. Wholesaler acknowledges that proper operation and support of the software requires Reliable Telecommunications that is supported by the Wholesaler. Reliable Telecommunications is defined as the capability to make and maintain a telecommunications connection for the necessary time required to complete in a reasonable amount of time the intended activity ninety-nine percent (99%) of the attempts in a thirty (30) day period. Wholesaler will provide such Reliable Telecommunications as specified above unless otherwise agreed to by the parties in writing. 5. TRAINING REQUIREMENTS. Wholesaler shall train the operators at each of Wholesaler s participating Shell branded retail facilities on how to operate and support the FRN, at Wholesaler s expense, as reasonably requested by Company, including requiring cashiers to promote and distribute the Shell FRN card to customers. Prior to launch of the marketing program in the applicable market, Wholesaler shall confirm to Company in writing that all site level employees are trained. Company will provide training materials to Wholesaler. Wholesaler will integrate FRN training into its brand training after launch to ensure that, on an ongoing basis, all site level employees are knowledgeable about the FRN. 6. MARKETING REQUIREMENTS. (a) Wholesaler will support the FRN, at Wholesaler's expense, as reasonably requested by Company. Wholesaler will support the FRN with site level signage provided or approved by Company on the station perimeter and forecourt and in the store at its participating Shell branded retail facilities as directed by Company. Wholesaler will only use marketing materials provided or approved by Company. Wholesaler will pay for spanner board frames and/or C-store building frames, and primary ID price sign panels and/or banners. If Company requires FRN brochures to be displayed at the dispenser, Wholesaler will ensure the brochure holders are installed, maintained and always stocked with FRN brochures. See below for specific FRN launch and ongoing signage requirements. Launch Signage Requirements: Change mat, cashier register signs, T-shirts, counter card brochure holder and brochures, *primary ID price sign panel and/or banner, *yard signs, *column banners, *pennant strings, building sign or spanner board, pump toppers, loyalty card decals and lug ons on dispensers, pump sign decals, and window signs. *Subject to local deed restrictions and/or signage square footage requirements - 3 -

4 Ongoing Signage Requirements: Change mat, cash register signs, buttons or T-shirts, counter card brochure holder and brochures, primary ID price sign panel and/or banner, building sign or spanner board, pump toppers, loyalty card decals and lug ons on dispensers, pump sign decals, and window signs. (b) If Wholesaler elects to issue Shell Fuel Rewards at Wholesaler s participating Shell branded retail facilities, Wholesaler will support the Shell Fuel Rewards offers, at Wholesaler's expense, as reasonably requested by Company. Wholesaler will only use marketing materials provided or approved by Company. 7. DATA PROTECTION REQUIREMENTS. (a) Wholesaler shall have and maintain, and require its participating Shell branded retail facilities to have and maintain, for so long as Wholesaler and its participating Shell branded retail facilities retain member data, account information, or transaction data, related to the FRN, adequate administrative, technical and physical safeguards (a) to maintain the security and confidentiality of such data, (b) to protect against any anticipated threats or hazards to the security or integrity of such data and information, and (c) to protect against unauthorized access to or use of such which could result in substantial harm or inconvenience to any member or other consumer. (b) Wholesaler shall promptly notify Company and shall require its participating Shell branded retail facilities to promptly notify Company when Wholesaler or a participating Shell branded retail facility discovers there has been a material breach in its security safeguards required by this Section 7, or if the security of such data or information has been or may be compromised for any reason. (c) Company may terminate this agreement as to one or more affected participating Shell branded retail facilities that violate any of the requirements of this Section OTHER FRN REQUIREMENTS. Wholesaler agrees that all of its participating Shell branded retail facilities will only redeem Fuel Rewards in accordance with the terms of this agreement and requirements of Excentus. Wholesaler shall cause its participating Shell branded retail facilities not to issue, give, distribute, license, sell, transfer or redeem Fuel Rewards for any third party, unless otherwise approved by Company in writing. Wholesaler agrees that all of its participating Shell branded retail facilities will accept loyalty program cards and the FRN card, for the purpose of enabling loyalty program members to redeem Fuel Rewards. Wholesaler agrees that it and all of its participating Shell branded retail facilities will not charge any types of fees or other charges, whether directly or indirectly, to any loyalty program member for redeeming Fuel Rewards, unless authorized by Company. Wholesaler will offer customers, and cause its participating Shell branded retail facilities to offer customers, the opportunity to enroll in the FRN as members. Wholesaler agrees that all of its participating Shell branded retail facilities will provide Excentus and its designees reasonable access to participating Shell branded retail facilities in order perform the services related to the FRN. Such access shall be provided during normal business - 4 -

5 hours and with no less than seventy-two (72) hours notice. Notwithstanding the foregoing, Excentus shall not be required to obtain approval for secret shoppers. Wholesaler shall communicate a minimum of three (3) key FRN account updates via the software on the receipt of every reward redemption transaction. The key FRN account updates are: the masked loyalty ID, the FRN name, and, the total value of the savings resulting from the transaction. Company reserves the right to revise requirements or add other reasonable requirements for participation in the marketing program. 9. REQUIREMENTS FOR PARTICIPATION IN OPTIONAL SHELL FUEL REWARDS PROGRAM (a) Wholesaler may elect to offer Shell Fuel Rewards to FRN members for qualifying purchases made at Wholesaler s participating Shell branded retail facilities. Shell Fuel Rewards may apply to purchases of convenience store and other goods and services, excluding motor fuel and merchandise and paraphernalia prohibited from being sold under Wholesaler s Wholesale Marketer Agreement with Company, and subject to applicable federal, state, and local laws, rules, orders and regulations, including but not limited to those restricting promotional offers on certain product categories. Wholesalers may exclude certain goods and services from eligibility to earn Shell Fuel Rewards. Wholesalers are required to maintain an up-to-date list of these excluded items and to make the list available to FRN members at store sites and on Wholesaler s website. All excluded items (other than those excluded above) must be mutually agreed upon by Wholesaler and Excentus. Excentus and Company reserve the right to exclude any items that would negatively affect the integrity of the FRN. (b) Wholesaler must pay an issuance fee for rewards issued and redeemed as provided in the below table and must fund 100% of all rewards redeemed at any participating Shell branded retail facility (including the Shell branded retail facilities of other wholesalers) that were issued by Wholesaler or Wholesaler s participating Shell branded retail facilities. Company or Excentus shall give Wholesaler(s) written notice of breach no later than the first business day after the date of breach if Wholesaler fails to pay issuance fees or fund redeemed rewards as required. Company or Excentus will suspend any and all issued but unredeemed rewards if Wholesaler breaches its obligation to pay the issuance fee or fund redeemed rewards as required and does not cure that breach within one (1) business day after Company or Excentus gives Wholesaler written notice of the breach. Item Reward Issuance Fee Convenience Store Offers and Non-Car Wash Offers Fee $0.009 for every $0.01 per gallon of the reward redemption Example: Member redeems 20 cents per gallon of Shell Fuel Rewards that were issued based on a member s purchase of convenience store items or other eligible goods and services (other than a car wash) fee would equal: 20 cents * = $

6 Item Reward Issuance Fee Car Wash Offers Fee $ for every $0.01 per gallon of the reward redemption Example: Member redeems 20 cents per gallon of Shell Fuel Rewards that were issued based on a member s purchase of a car wash at a participating Shell branded retail facility fee would equal: 20 cents * = $0.09 (c) All rewards must be based on cents-off-per-gallon of fuel, meaning the reward is good for a number of cents discounted off of the stated price per gallon of fuel, and redeemable for one vehicle for each transaction for up to a twenty (20) gallon limit. Members have the ability to earn and redeem multiple rewards (i.e. stack Rewards) on a single transaction. Members will only be able to redeem multiple rewards up to the stated price per-gallon of fuel (or such price per-gallon permitted due to technical limitations of fuel pumps). If a member has a FRN balance greater than the per-gallon price of fuel, a carry over will occur. Rewards cannot be converted into any other form of discount, point, or other currency without prior approval from Excentus. Fractional reward amounts are prohibited (e.g. ½ cent-per-gallon). (d) Wholesaler shall communicate a minimum of three (3) key FRN account updates via the software on the receipt of every reward issuance transaction. The key FRN account updates are: the amount of rewards earned in that particular transaction, the total amount of earned rewards, and the reward amount expiring at the end of the current month. Wholesaler may be required to submit a copy of the receipt to Company or Excentus prior to launching Company Fuel Rewards at each participating Shell branded retail facility for Excentus certification. (e) Each day, following software s end-of-day processing, Excentus will make available (on the Software Administrative Portal) to Wholesaler an invoice separately indicating the following totals: Discounted amount for gallons of fuel redeemed that day against its issued rewards on the software, plus Reward penny redeemed fees due Excentus for all rewards issued by Wholesaler that are redeemed that day (Reward Issuance Fees) The daily settlement is a single amount and does not include transaction-level details; however, daily transaction-level details will be available to Wholesaler and Company via software. On the same business day or, in some cases as determined by Excentus, the following business day, Wholesaler shall send an ACH credit for the daily settlement amount to an Excentus bank account before Wholesaler s bank s ACH cut off for that day unless there is an obvious and material error associated with the daily settlement amount. If such an error occurs, Wholesaler is - 6 -

7 required to contact the Shell Solutions Center at HI-SHELL immediately to determine the appropriate amount required for the daily settlement process. Notwithstanding the foregoing, Excentus may elect to net, recoup, or offset settlement amounts owed Wholesaler for Shell Fuel Rewards redeemed at Wholesaler s participating Shell branded retail facilities against settlement amounts owed Excentus for Shell Fuel Rewards issued at Wholesaler s participating Shell branded retail facilities. (f) To dispute any transaction, Wholesaler must notify the Shell Solutions Center at HI-SHELL within thirty (30) days after monthly summary report is made available. After this date, all daily settlement transactions will become permanent financial records. To initiate a dispute, Wholesaler must provide detailed transaction data to substantiate the claim. If Excentus does not respond to a dispute within five (5) business days of receipt, the dispute will be considered resolved in favor of the Wholesaler. Any adjustments to settlement funds will be handled outside of the daily settlement process and will be submitted by Excentus or Wholesaler via ACH within five (5) business days. Any claims that are not resolved to the satisfaction of the Wholesaler may be submitted for review by a Joint Marketing Committee established by Company and Excentus. Lacking clear evidence to support the Wholesaler s claim, the data in the software will be the ruling data. (g) For FRN member complaints relating to Shell Fuel Rewards offers earned by members at Wholesaler s participating Shell branded retail facilities, Wholesaler shall direct members to call the FRN help desk at Wholesaler shall cooperate with Company and Excentus to resolve such complaints and shall be responsible for the reasonable costs of resolution. 10. TERM AND TERMINATION. (a) This Participation Agreement is effective on the date Company confirms acceptance of the Wholesaler s enrollment in the marketing program (the Effective Date ). The term of this agreement varies by program market. For participating Shell branded retail facilities confirmed by Company for acceptance in a program market on or prior to the date of market launch, as determined by Company, in a program market, the term commences on market launch and continues from year to year thereafter (each a contract year ) unless terminated. For participating Shell branded retail facilities confirmed by Company for acceptance in a program market after the date of market launch, as determined by Company, in a program market, the term commences on the Effective Date and continues from year to year thereafter (each a contract year ) unless terminated. Wholesaler may withdraw one or more of Wholesaler s participating Shell branded retail facilities from participating in the marketing program effective at the end of the applicable and then current contract year by providing Company with at least sixty (60) days prior notice. If a Wholesaler withdraws a participating Shell branded retail facility from participation prior to the end of the first contract year, Wholesaler shall pay Company $750 for each facility that has been withdrawn to reimburse Company for implementation costs. This Participation Agreement will terminate if Wholesaler s Wholesale Marketer Agreement with Company is terminated or not renewed. This Participation Agreement will terminate, or terminate in part as to one or more program markets, if Company s agreement with Excentus creating the marketing program is terminated, or terminated in part as to one or more program markets. Company may terminate this Participation Agreement at any time as to - 7 -

8 one or more program markets for convenience with at least thirty (30) days prior notice. Company may terminate this Participation Agreement at any time if Wholesaler fails to comply with the terms and conditions of this agreement. Company may suspend or terminate participation in the FRN or the Shell Fuel Rewards Program for any of Wholesaler s participating Shell branded retail facilities that do not meet site readiness or other requirements of this agreement. (b) Company may cancel or change the marketing program in one or more program markets at any time and participants issuing rewards may cancel or change their loyalty program in one or more program markets at any time. Company will provide notice to Wholesaler in the event Company cancels or changes the marketing program in one or more program markets. (c) Upon any termination of this agreement as to one or more program markets, Wholesaler will wind down participation in the affected program market(s) as reasonably requested by Company, and at the end of the wind down period (i) the Excentus software licenses shall immediately terminate; (ii) each participating Shell branded retail facility must immediately cease and Wholesaler shall immediately cease using the Fuel Rewards Network trademarks and all other Excentus trademarks, shall not thereafter use any Excentus trademarks for any reason, and shall destroy any materials in their possession that bear Fuel Rewards Network or other Excentus trademarks; (iii) Wholesaler shall immediately return to Company confidential or proprietary information of Excentus, if any; and (iv) Wholesaler shall immediately cease representing itself as a participant in the FRN. 11. CONFIDENTIALITY. Wholesaler shall not disclose any information about this Participation Agreement or the marketing program, or any proprietary information of Company or Excentus, to any third party, including not making public statements or media releases, unless authorized in writing by Company. 12. EXCLUSIVITY. (a) During the term of this Participation Agreement, Wholesaler shall make the FRN and the Shell Fuel Rewards Program the exclusive fuel rewards program at Wholesaler s participating Shell branded retail facilities, except to the extent such facilities are participating facilities in program markets in which Company has a co-advertising agreement with The Kroger Company or The Stop & Shop Supermarket Company LLC and its subsidiary, Giant of Maryland LLC, or as otherwise approved by Company in writing. (b) During the term of this Participation Agreement and for one (1) year thereafter, Wholesaler shall not enter into, and shall cause its participating Shell branded retail facilities not to enter into, either directly or indirectly, agreements with other issuers or redeemers of rewards in the FRN setting forth rights and obligations of the Wholesaler or such Shell branded retail facilities in relation to such issuers or redeemers related to the FRN

9 (c) Company may terminate this Participation Agreement as to one or more affected participating Shell branded retail facilities that violate any of the requirements of this Section ENROLLMENT OF FACILITIES. Wholesaler s Shell branded retail facilities must be enrolled in the FRN via the Shell Source website in order to participate. Wholesaler may enroll, or allow third parties to enroll, Wholesaler s Shell branded retail facilities in the FRN via the Shell Source website. Wholesaler shall be responsible for compliance with the terms of this agreement as it relates to all of Wholesaler s Shell branded retail facilities in the FRN, whether enrolled by Wholesalers or third parties. 14. ENTIRETIES/MODIFICATION/WAIVER. This Participation Agreement cancels and supersedes all prior and contemporaneous representations, inducements, agreements, commitments, and undertakings with respect to the subject matter of this Participation Agreement and prior Wholesale Marketer Grocer Fuel Rewards Participation Agreements with Company involving Excentus. Any waiver of any provision, or modification, of this Participation Agreement must be in writing signed by the parties. Either party s delay or failure to enforce any provision of this Participation Agreement or any course of dealing or trade custom or usage will not operate as a waiver of compliance with that provision or a waiver or estoppel of the party s right to enforce any other provision of this Participation Agreement. The provisions of this Participation Agreement are severable. If any provision of this Participation Agreement is, for any reason, invalid or unenforceable, the remaining provisions of this Participation Agreement are valid and enforceable if the basic intent of the parties is still capable of being achieved. 15. WARRANTY DISCLAIMER. COMPANY MAKES NO WARRANTIES OF ANY KIND, INCLUDING AS TO THE EXCENTUS SOFTWARE OR REWARDS LINK BOX, THE FRN, OR THE SHELL FUEL REWARDS PROGRAM, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 16. DISCLAIMER OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST BUSINESS OPPORTUNITES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING UNDER OR IN CONNECTION WITH THIS PARTICIPATION AGREEMENT WHETHER UNDER TORT, CONTRACT, STRICT LIABILITY, WARRANTY, STATUTE, OR OTHERWISE. 17. COMPLIANCE WITH LAWS. Wholesaler shall comply, and cause the operators of Wholesaler s participating Shell - 9 -

10 branded retail facilities to comply, with all federal, state, and local laws, rules, orders, regulations, licenses, and permits relating to its business and the participation of Wholesaler and Wholesaler s participating Shell branded retail facilities in the FRN or the Shell Fuel Rewards Program. 18. INDEMNITY. (a) To the extent permitted by law, Wholesaler shall indemnify and defend Company, its members, subsidiaries, affiliates and joint venture partners, and their respective directors, officers, employees, and agents ( Indemnified Party ) against all claims, demands, causes of action, suits, damages, judgments, liens, penalties, and expenses, including, without limitation, attorneys fees and litigation costs, whether incurred for an Indemnified Party s primary defense or for enforcement of its indemnification rights (collectively, Claim ) including, without limitation, any Claim arising out of or in connection with any of the following matters: agreement; (1) Wholesaler s performance or nonperformance under this (2) Any action or omission or Wholesaler or Wholesaler s employees, agents, contractors, assigns, or third parties; and (3) Any event or occurrence at or involving the operation of any Wholesaler s participating Shell branded retail facilities. WHOLESALER S OBLIGATION TO INDEMNIFY AND DEFEND EXTENDS TO ANY CLAIM CAUSED BY THE CONCURRENT OR CONTRIBUTORY NEGLIGENCE OR FAULT OF AN INDEMNIFIED PARTY. (b) Within a reasonable time after any occurrence which may result in a Claim, Wholesaler shall report the same to Company by telephone and shall promptly thereafter confirm the same by written notice, including all circumstances thereof known to Wholesaler or the operator of Wholesaler s participating Shell branded retail facilities or their employees. PROMPTLY AFTER RECEIVING NOTICE OF ANY SUCH OCCURRENCE, AT WHOLESALER S EXPENSE, WHOLESALER SHALL INVESTIGATE SAID OCCURRENCE AND RESPOND TO AND DEFEND ANY CLAIM ASSERTED AGAINST ANY INDEMNIFIED PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLAIM ALLEGING THE INDEMNIFIED PARTY S SOLE NEGLIGENCE. The Indemnified Party may participate in the defense and settlement of any Claim or litigation with attorneys of the Indemnified Party s selection without relieving Wholesaler of any obligations under this article; provided, however, the Indemnified Party will be responsible for its own attorney s fees. Company shall reimburse Wholesaler for the amount of any judgment and reasonable defense costs paid by Wholesaler which represents the total liability found by final non-appealable judgment to have been caused by the Indemnified Party s sole negligence. (c) Wholesaler s obligations under this article survive termination or nonrenewal of this Participation Agreement

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12 19. ASSIGNMENT. (a) Assignment by Wholesaler. This Participation Agreement is personal to Wholesaler. Wholesaler may not sell, transfer, assign, or encumber any of its interest under this Participation Agreement, or assign any claim against Company arising directly or indirectly out of or in connection with this Participation Agreement, in whole or in part, whether voluntarily, involuntarily, or by operation of law (collectively, Transfer ) without the prior written consent of Company, which consent will not be unreasonably withheld. Any Transfer by Wholesaler without Company s prior written consent is void. (b) Assignment by Company. Company may Transfer its interest, in whole or in part, in this agreement. 20. INDEPENDENT CONTRACTOR. Wholesaler is an independent contractor, and nothing in this Participation Agreement may be construed as reserving to Company any right to exercise any control over, or to direct in any respect the conduct or management of, Wholesaler s business or operations conducted pursuant to this Participation Agreement, but the entire control and direction of such business and operations are and will remain in Wholesaler, subject only to Wholesaler s performance of the obligations of this Participation Agreement. Neither Wholesaler nor any person performing any duties or engaged in any work at the Wholesaler s participating Shell branded retail facilities will be deemed an employee or agent of Company, and none of them is authorized to impose on Company any obligations or liability whatsoever. 21. ALTERNATIVE DISPUTE RESOLUTION. Any and all claims, counterclaims, demands, causes of action, disputes, controversies and other matters arising out of or relating to this Participation Agreement or the relationship established by this Participation Agreement, any provision of this agreement, the alleged breach of this Participation Agreement, or in any way relating to the subject matter of this agreement involving the parties or their respective representatives ( Claim ), whether such Claims are in contract, tort, or otherwise, at law or in equity, whether provided by statute or the common law, for damages or any other relief, if not capable of resolution through negotiation by the parties, must be submitted to the alternative dispute resolution process provided in the ALTERNATIVE DISPUTE RESOLUTION article of the Wholesale Marketer Agreement. The provisions of this article survive any expiration or termination of this Participation Agreement

13 22. NOTICES. Except as otherwise specified in this Participation Agreement, all notices must be in writing, addressed to the parties as specified herein. Any notice may be given to Wholesaler by personal service or by electronic mail or to either party by certified mail, regular mail, facsimile, or overnight or local courier. Notice will be deemed given when: (1) deposited in the U.S. Mail, postage or charges pre-paid and directed to the party for whom intended at the address in the Wholesaler Marketer Agreement or such other address as directed by the party upon written notice to the other if given by certified mail or regular mail; (2) deposited with the dispatching agency, postage or charges pre-paid and directed to the party for whom intended at the address in the Wholesale Marketer Agreement or such other address as directed by the party upon written notice to the other if given by overnight or local courier; (3) confirmation is received by the sending party if given by facsimile; or (4) Company is electronically notified by its electronic mail provider or program of delivery to Wholesaler if given by electronic mail. End of Wholesale Marketer Fuel Rewards Program Participation Agreement