SHELL OIL PRODUCTS US/MOTIVA ENTERPRISES LLC WHOLESALE MARKETER EXCENTUS FUEL REWARDS PROGRAM FRN GIFT CARD MALL PARTICIPATION AGREEMENT 1. BACKGROUND. (a) Shell Oil Products US and Motiva Enterprises LLC ( Shell ) have 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 and retailers and other marketers may revise loyalty programs from time to time. (d) As part of the FRN, Excentus and Shell have entered into agreements with Blackhawk Network, Inc. ( Blackhawk ) whereby Wholesalers who have valid Participation Agreements with Shell for the redemption of Fuel Rewards at Wholesaler s Shell branded retail facilities may elect to exclusively market and promote certain prepaid and other products distributed by Blackhawk ( Products ). Blackhawk will issue and fund rewards to FRN members for qualifying Product purchases made at Wholesaler s participating Shell branded retail facilities that can be redeemed for Fuel Rewards as part of the Fuel Rewards Network program. Shell, Excentus and Blackhawk may revise the Fuel Rewards Network program from time to time, including as relates to Products. (e) This FRN Gift Card Mall Participation Agreement states the additional terms and conditions applicable to participation in the FRN for the distribution of Products and enrolls Wholesaler in the optional Products distribution program ( FRN Gift Card Mall ) at Wholesaler s Shell branded retail facilities selected by Wholesaler on the Shell Source website. (f) The FRN Gift Card Mall will not replace the Shell gift card merchandiser. The $50 Shell gift card will be included in the FRN Gift Card Mall and will also remain included in the Shell gift card merchandiser. 2. AGREEMENT TO CONTRACT ELECTRONICALLY. Wholesaler and Shell agree to enter into this FRN Gift Card Mall Participation Agreement electronically and agree that this FRN Gift Card Mall Participation Agreement shall - 1
be legally binding on the parties. Wholesaler agrees that Shell may send notices and otherwise communicate with Wholesaler about this FRN Gift Card Mall Participation Agreement by email. Wholesaler agrees to update its account information on the Shell Source website, under User Profile, for changes in Wholesaler s physical or email address. Shell is not responsible if Wholesaler does not receive notice from Shell due to incorrect email addresses or other circumstances beyond Shell s control. 3. EXCLUSIVITY. During the term of this FRN Gift Card Mall Participation Agreement, Wholesaler shall make the FRN Gift Card Mall the exclusive gift card mall program at Wholesaler s participating Shell branded retail facilities and shall not, without Shell s or Blackhawk s written consent, enter into any agreement with any retailer or other third party, for the sale or distribution of any Products, or other products that compete with any Products ; provided, however, that to the extent Wholesaler has entered into any such agreements prior to the Commencement Date ( Pre-Existing Agreements ), Wholesaler may continue such Pre-Existing Agreements until their expiration dates as of the Effective Date. Wholesaler shall not, without Shell s or Blackhawk s written consent, renew or extend the term of any Pre-Existing Agreements after the Commencement Date. 4. ENROLLMENT/DE-ENROLLMENT OF FACILITIES IN SHELL SOURCE. Wholesaler s Shell branded retail facilities must be enrolled in the FRN Gift Card Mall via the Shell Source website in order to participate. Wholesaler may enroll, or allow its third party dealers to enroll, Wholesaler s Shell branded retail facilities in the FRN Gift Card Mall via the Shell Source website. Wholesaler shall be responsible for compliance with the terms of this Agreement as relates to all of Wholesaler s Shell branded retail facilities in the FRN Gift Card Mall via the Shell Source website, whether enrolled by Wholesalers or its third party dealers. If the controlling ownership interest in Wholesaler or its third party dealer changes, or Wholesaler or its third party dealer chooses to discontinue participation in the FRN Gift Card Mall program as to one or more of Wholesaler s participating Shell branded retail facilities, Wholesaler or its third party dealer shall follow the de-enrollment procedures provided by Shell. 5. WHOLESALER AND THIRD PARTY DEALER SIGN-UP PROCESS WITH BLACKHAWK. Once the Wholesaler or one of its third party dealers (owner or operator of one of Wholesaler s Shell branded facilities) has enrolled successfully in Shell Source, the Wholesaler or its third party dealer will then proceed to the Blackhawk portal, where the Wholesaler or its third party dealer will: (i) submit additional information about itself that Blackhawk may require to perform its review or comply with legal or regulatory requirements; (ii) electronically sign an agreement between the Wholesaler or its dealer and Blackhawk covering the Wholesaler s or its dealer s rights, duties, and responsibilities with respect to participation in the Alliance Partners Program (the Merchant Marketing Agreement ); (iii) electronically sign other agreement(s) that may be required to sell certain Products. Wholesaler authorizes Shell to transfer information - 2
about Wholesaler or its dealers to Blackhawk or Blackhawk s service provider for the purpose of review by Blackhawk for approval to become a Blackhawk Merchant.. Blackhawk will conduct its partner review process and give notice in writing (e-mail is sufficient) to Shell and the Wholesaler or its dealer as to whether the Wholesaler or its dealer has been approved to become a Merchant, which determination shall be made by Blackhawk in its sole reasonable discretion. If approved, the Wholesaler or its dealer will become a Merchant and be authorized to sell such Products as their Merchant Marketing Agreement, and other agreements with Blackhawk may permit. Unless and until Blackhawk notifies Shell and the Wholesaler or its dealer of an approval, the Wholesaler or its dealer shall be deemed not to be approved to be a Merchant. Wholesaler or its dealer may not receive, offer, promote or sell any Products unless and until (i) Blackhawk receives notification from Shell that the FRN Gift Card Mall Participation Agreement has been electronically executed by Wholesaler, (ii) Blackhawk receives the electronically executed Merchant Marketing Agreement and other required agreements (iii) Blackhawk performs partner review, and (iv) Blackhawk specifically approves the Wholesaler or its dealer to be a Merchant. Blackhawk may remove any Product(s) as requested by the retailer(s) or as needed to comply with applicable law; and Blackhawk shall be responsible for removing any such Products(s) from Wholesaler s and its dealer s participating sites. This process may be changed by Blackhawk or Shell from time to time. 6. PAYMENT/SETTLEMENT FOR FUEL REWARDS REDEEMED. There is no redemption fee for Wholesalers for Fuel Rewards redeemed that are earned by FRN member purchases of Products in the FRN Gift Card Mall unless the Fuel Rewards are redeemed with Fuel Rewards issued by parties other than the redeeming Wholesaler or Blackhawk ( Foreign Rewards ). If redeemed with Foreign Rewards, 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. For any questions related to settlement by Excentus, please contact the Shell Solutions Center at 1-866-HI-SHELL. For any amounts due Shell under this Participation Agreement, Wholesaler authorizes Shell to net, recoup, or offset the amount against Wholesaler s account with Shell. 7. PAYMENT/SETTLEMENT FOR PRODUCTS ACTIVATED. Shell shall pay Wholesaler a 3% (three percent) commission for all Products sold and activated at Wholesaler s participating Shell branded retail facilities pursuant to the terms and conditions of this Agreement, excluding the Shell $50 gift card. Wholesaler will be responsible for the cashier entering in the correct dollar amount for Products activated as this amount is what will be due to Shell and settled between Wholesaler and Shell. Any differences between Blackhawk s approved activation amounts and Shell s - 3
activation amount will be reconciled against the Wholesaler s settlement bank account. Shell shall settle daily for any Product activations net the commissions due to Wholesaler. Wholesaler authorizes Shell to net, recoup, or offset the amount against Wholesaler s settlement bank account with Shell. Once a Product is activated, Wholesaler shall not provide refunds, credits or exchanges, except at its sole cost and expense. 8. 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 Shell, as such requirements may change from time to time. Wholesaler will also set up its EPOS systems to calculate any required taxes on the sale of Products and to include UPCs for the sale of Products for each of the Wholesaler s participating Shell branded retail facilities. Blackhawk or Shell will provide tax set up instructions and a list of UPCs. 9. TRAINING REQUIREMENTS. Wholesaler shall train the operators to then train their station level employees at each of Wholesaler s participating Shell branded retail facilities how to operate and support the FRN Gift Card Mall, at Wholesaler s expense, as reasonably requested by Shell, including requiring cashiers to promote and distribute the Shell FRN card to customers who are purchasing gift cards that don t already have an FRN card. Prior to launch of the marketing program in the applicable market, Wholesaler shall confirm to Shell in writing that all site level employees are trained. Training also includes required training by Blackhawk for gift card legal compliance. Shell and Blackhawk will provide training materials to Wholesaler. Wholesaler will integrate FRN training into its brand training to ensure that on an ongoing basis all site level employees are knowledgeable about the FRN Gift Card Mall and are complying with required gift card laws, rules, and regulations. 10. MARKETING REQUIREMENTS. (a) Wholesaler will support the FRN Gift Card Mall, at Wholesaler's expense, as reasonably requested by Shell. Wholesaler will support the FRN Gift Card Mall with site level signage approved by Shell at its participating Shell branded retail facilities as directed by Shell. Wholesaler will only use marketing materials approved by Shell. Wholesalers are not to create, provide or use any disclosures, promotional materials or advertising (including any in-store advertising) relating to the Products unless such disclosures or materials are expressly approved in advance in writing (or by email) by Shell. (b) Wholesaler acknowledges that listing Shell, Blackhawk, or product retailers as a customer, client or otherwise has value and therefore agrees that it will submit to Shell for Shell s approval all marketing, advertising, press releases, and all other promotional materials (including, without limitation, sales literature, trade shows, posters, reference lists, or similar public announcements) referring to any such party or its trademarks, service marks, trade names, designs and logos ( Marks ), copyrights, or other intellectual property rights before the use or distribution of such materials. Wholesaler further acknowledges and agrees that: (x) the - 4
Marks, copyrights or other intellectual property rights of Shell, Blackhawk, the retailers, and their Affiliates shall remain the sole property of Shell, Blackhawk, the retailers, and their Affiliates, respectively; and (y) nothing in this Agreement shall confer on Wholesaler any title to, right of ownership or, except to the extent expressly provided for herein, interest in any of their Marks, copyrights or other intellectual property. 11. DISPLAYS AND PRODUCT INVENTORY. Blackhawk will purchase, deliver and install at Blackhawk s expense one (1) new, permanent Product destination display at each participating Wholesaler Shell branded retail facility. The displays may only display the Products provided by Blackhawk and the FRN $50 Shell branded gift card. Blackhawk will pay for any display costs related to normal wear and tear of the display during the Term of the Agreement. However if Wholesaler withdraws one or more of it participated Shell branded retail facilities from the program prior to the end of the first contract year applicable to such retail facility (ies). Wholesaler will be charged $750 per participating Shell branded retail facility. This fee can be waived at Shell s sole discretion. Upon delivery, Wholesaler shall take title to and ownership of the displays. After initial inventory levels are established, Blackhawk shall make commercially reasonable efforts to monitor virtual inventory levels and automatically replenish Products via delivery directly to Wholesaler Shell branded retail facilities based on minimum and maximum inventory levels reasonably determined by Blackhawk. Blackhawk will provide a telephone number for Wholesalers to order Products if required. Any physical losses of un-activated products (e.g. $0.25-$.40/card) shall be borne by Blackhawk until the Products are delivered to Wholesaler Shell branded retail facilities and, thereafter, pursuant to the Blackhawk Merchant Marketing Agreement, shall be borne by Wholesalers until Cardholders leave the premises of a Wholesaler Shell branded retail facility with an Activated product. Wholesaler shall use commercially reasonable efforts to prominently display Products in high traffic areas. Wholesaler acknowledges and agrees that upon notice to Wholesaler by Shell, the Products or any Retailer may be withdrawn or substituted Wholesaler at its expense will utilize such display racks, end caps and/or similar equipment as are approved by Shell. Wholesaler acknowledges that particular Product retailers may have Product placement restrictions and will comply with the instructions of Shell or Blackhawk relating to Product placement. Wholesaler acknowledges and agrees that the sale of certain other Gift Cards may require the execution of separate agreements with the Card Issuers, and if Wholesaler wishes to carry any such Gift Cards, Wholesaler must sign such separate agreements as may be necessary. Wholesaler acknowledges and agrees that Debit Cards require the execution of additional agreements with Blackhawk and/or third-party issuers or distributors, and if Wholesaler wishes to carry any Debit Cards, Wholesaler shall sign such agreement(s) before distributing those Products. - 5
Wholesaler acknowledges and agrees that it will not directly contact Retailers in connection with the Products, and that Blackhawk will be the sole interface with all of the Retailers with respect to the Products and the Alliance Partners Program. Products are not to be used at Wholesaler Shell branded participating retail facilities except with the terms and conditions presented by Blackhawk. 12. TERM AND TERMINATION. (a) This FRN Gift Card Mall Participation Agreement is effective on the date Shell confirms acceptance of the Wholesaler s enrollment in the FRN Gift Card Mall program (the Effective Date ). The initial term of this Agreement as relates to each of Wholesaler s Shell branded participating retail facilities begins on the date Blackhawk confirms acceptance of the Wholesaler as a Merchant in the Blackhawk Alliance Partners Program (the Commencement Date ). Based on when each Shell branded retail facility enters into this Agreement, the term will continue 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 Alliance Partners Program effective at the end of the applicable and then current contract year by providing Shell with at least 60 days prior notice. If Wholesaler withdraws one or more of Wholesaler s participating Shell branded retail facilities within the first contract year then Wholesaler will pay $750 per site to cover the costs of the displays. This FRN Gift Card Mall Participation Agreement will terminate if Wholesaler s Participation Agreement with Shell Oil Products US or Motiva Enterprises LLC, as applicable, for the redemption of Fuel Rewards is terminated or expires, or Wholesale Marketer Agreement with Shell Oil Products US or Motiva Enterprises LLC, as applicable, is terminated or expires or is not renewed. This FRN Gift Card Mall Participation Agreement will terminate if Shell s agreement with Excentus creating the marketing program is terminated. Shell may terminate this FRN Gift Card Mall Participation Agreement at any time to one or more of Wholesaler s participating Shell branded retail facilities for convenience with at least 30 days prior notice. Shell may terminate this FRN Gift Card Mall Participation Agreement at any time if Wholesaler fails to comply with the terms and conditions of this Agreement. Shell may suspend or terminate participation in the FRN Gift Card Mall program as to any of Wholesaler s participating Shell branded retail facilities that do not meet the requirements of this Agreement. (b) Shell or Blackhawk may cancel or change the FRN Gift Card Mall program at any time. Shell will provide notice to Wholesaler in the event Shell cancels or changes the FRN Gift Card Mall program. 13. CONFIDENTIALITY. Wholesaler shall not disclose any information about this FRN Gift Card Mall Agreement, or any proprietary information of Shell, Blackhawk, or Excentus, to any third party, including not making public statements or media releases, unless authorized in writing by Shell. 14. ENTIRETIES/MODIFICATION/WAIVER. This FRN Gift Card Mall Participation Agreement cancels and supersedes all prior and contemporaneous representations, inducements, agreements, commitments, and undertakings - 6
with respect to the subject matter of this FRN Gift Card Mall Participation Agreement. Any waiver of any provision, or modification, of this FRN Gift Card Mall Participation Agreement must be in writing signed by the parties. Either party s delay or failure to enforce any provision of this FRN Gift Card Mall 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 FRN Gift Card Mall Participation Agreement. The provisions of this FRN Gift Card Mall Participation Agreement are severable. If any provision of this FRN Gift Card Mall Participation Agreement is, for any reason, invalid or unenforceable, the remaining provisions of this FRN Gift Card Mall Participation Agreement are valid and enforceable if the basic intent of the parties is still capable of being achieved. 15. WARRANTY DISCLAIMER. SHELL MAKES NO WARRANTIES OF ANY KIND, INCLUDING AS TO BLACKHAWK, THE PRODUCTS, THE FRN, OR THE BLACKHAWK FRN GIFT CARD MALL 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 FRN GIFT CARD MALL 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 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 Gift Card Mall program. 18. INDEMNITY. (a) To the extent permitted by law, Wholesaler shall indemnify and defend Shell, 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 - 7
(2) Any action or omission of Wholesaler or Wholesaler s dealers or either of their 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 locations. 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 Shell 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. Shell 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. 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 Shell 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 Shell, which consent will not be unreasonably withheld. Any Transfer by Wholesaler without Shell s prior written consent is void. (b) in this Agreement. Assignment by Shell. Shell may Transfer its interest, in whole or in part, 20. INDEPENDENT CONTRACTOR. Wholesaler is an independent contractor, and nothing in this Participation Agreement may be construed as reserving to Shell 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 - 8
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 Shell, and none of them is authorized to impose on Shell 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 Article 30 ALTERNATIVE DISPUTE RESOLUTION of the parties Wholesale Marketer Agreement. The provisions of this article survive any expiration or termination of this Participation Agreement. 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) Shell is electronically notified by its electronic mail provider or program of delivery to Wholesaler if given by electronic mail. End of FRN Gift Card Mall Program Participation Agreement - 9