Exhibit 10.21
Facility Number: 82061
ADDENDUM TO CONTRACT DEALER GASOLINE AGREEMENT
(PAYPOINT NETWORK NON-LESSEE RETAILER)*
This ADDENDUM, effective _____________ ("Effective Date") is attached to
incorporated in and made a part of the Contract Dealer Gasoline Agreement,
dated Sept. 2, 1999, by and between ARCO Products Company, a division of
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Atlantic Richfield Company ("Franchisor") and LLO-Gas, Inc. ("Franchisee"),
the operator of an ARCO location located at 0000 Xxxxxxxxxx Xxx.,
Xxxxxxxxxxx, Xxxxxxxxxx 00000 ("Facility").
1. Agreement
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Franchisor shall provide PayPoint(R) Network Service ("PayPoint Network")
to Franchisee. Franchisee shall perform as provided herein.
2. Definitions
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(a) The term "PayPoint Network" shall mean those services more fully
described in Paragraph 3 below.
(b) The term "Approval" shall mean that, for a Transaction entered into
the PayPoint Network, Financial Institution or the PayPoint Network has
caused a response to be transmitted to Franchisee through the PayPoint
Network which indicates that the Transaction is approved or, for
preauthorized transactions, e.g., gasoline purchases, that certain products
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or services may be purchased or performed, e.g. that gasoline may be
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pumped.
(c) The term "Denial" shall mean that Financial Institution has caused a
response to a Transaction to be transmitted through the PayPoint Network
which indicates that the Transaction is not approved.
(d) The term "Working Day" shall mean any day except Saturdays, Sundays
and any other days on which financial institutions are regularly closed.
(e) The term "access card" shall mean an access card issued, directly or
indirectly, by a participating Financial. Institution to a Cardholder of
such Financial Institution. An access card shall have the name of the
Cardholder encoded and/or embossed thereon and/or a name, number or code
which identifies such access card as being issued by a Financial
Institution.
(f) The term "Cardholder" shall mean a natural person or entity doing
banking business with a participating Financial Institution and to whom
such Financial
Institution has issued or proposes to issue an access card. The term
"Cardholder" includes a natural person or entity purporting to be such
Cardholder.
(g) The term "Transaction" shall mean each use of an access card by a
Cardholder for the purpose of paying for a purchase of a product or service
or receiving cash or a refund from Franchisee through use of the PayPoint
Network to which a participating Financial Institution responds with an
approval or denial code.
(h) The term "deposit account" shall mean the checking, savings and/or
other account of Cardholder at a participating Financial Institution that
is accessible via an access card.
(i) The term "PayPoint Account(s)" shall mean the accounts at
participating Financial Institutions or participating networks to which
funds from Cardholders' deposit accounts shall be transferred. These funds
so transferred shall be used to credit Retailer's Accounts.
(j) The term "Retailer's Account" shall mean the account maintained by
Franchisee at a financial institution that is a member of the Cal-Western
Automated Clearing House Association or the National Automated Clearing
House Association and named by Franchisee on Exhibit C, attached hereto,
incorporated herein and made a part hereof, as the account into which
deposits resulting from Cardholder Transactions at Franchisee's location
are made.
(k) The term "POS Terminal," "POS System," or "POS Equipment" shall mean
the point-of-sale devices) or system used by Franchisee, which must meet
the communications protocol and criteria of the PayPoint Network.
(l) The term "Settlement Day" shall mean any day excluding weekends and
the following holidays: New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day as well as
any other days on which the Settlement Banks) are closed.
(m) The term "participating Financial Institution," "Financial
Institution," or "Network" shall mean the financial institutions, networks
or Members or Affiliates of participating networks which execute agreements
with Franchisor to participate in or provide services through the PayPoint
Network.
3. PayPoint Network Description
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The PayPoint Network shall enable Cardholders to receive cash or to pay for
purchases of products and services by means other than cash, money order or
check. Each Cardholder shall use an access card to initiate a Transaction.
Franchisee shall promptly honor all valid access cards when presented by
Cardholders and shall treat Cardholders from all participating Financial
Institutions
equally. Franchisee shall use a POS Terminal and may also use
one or more Island Card Reader devices ("ICR Device") that are in
communication with the PayPoint Network computer facility(ies).
When the Cardholder's access card is inserted in the POS Terminal or ICR
Device, information encoded on the magnetic stripe on the reverse of the
access card shall be read by a magnetic stripe reader. The Cardholder
shall enter his or her Personal Identification Number ("PIN") on a key pad.
The encoded information, the encrypted PIN, the purchase amount or
preauthorization request, and such other data regarding the Transaction as
Franchisor may reasonably require, shall be transmitted from the POS
Equipment to the Pay Point Network computer facility(ies) and from the
PayPoint Network computer facility(ies) to a participating Financial
Institution. Financial Institution shall respond with either an approval
or denial for the requested Transaction.
With certain types of POS equipment, certain purchases, e.g. gasoline, may
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be preauthorized by the participating Financial Institution before any
product or service is purchased or performed; the actual purchase amount
shall be transmitted to the
Financial Institution after the Cardholder has obtained such product or
service. It is understood and agreed that the actual purchase amount shall
be no more than the amount preauthorized.
The final purchase amount shall subsequently be debited form the
Cardholder's deposit account and credited to the Retailer's Account via the
PayPoint Account(s). Franchisee shall not permit anyone to complete a
.Transaction unless Franchisee has received approval through the PayPoint
Network.
4. Rent
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Commencing on the Effective Date, if this is a subsequent PayPoint
Agreement between Franchisee and Franchisor, or the Commencement Date, as
defined below, if this is the initial PayPoint Agreement between Franchisee
and Franchisor or, where applicable, the first day of the thirteenth month
following the Commencement Date, Franchisee shall pay to Franchisor, for
participation in the PayPoint Network, transaction fees in the amount set
forth on Exhibit A, which is incorporated herein, made a part hereof and
attached hereto. Such fees shall be due and payable to Franchisor on or
before the tenth day of the month following the month in which such fees
were incurred during the term of this Addendum. Provided, however, that if
Franchisee installs and ICR device at the Facility prior to the
Commencement Date and operates it thereafter, Franchisee shall pay no fees
for participation in the PayPoint Network for the first twelve months
following the Commencement Date and 50% of the applicable fees for the
balance of the term of this Agreement. The term "Commencement Date" shall
mean the date on which
the first "live" Transaction, that is, a Transaction involving a Cardholder
at the Facility, is provided to Franchisee through the PayPoint Network.
Commencing on the Effective Date, if this is a subsequent PayPoint
Agreement between Franchisee and Franchisor or, if this is the initial
PayPoint Agreement between Franchisee and Franchisor, on the Commencement
Date, and thereafter on or before the first day of each month during the
term of this Addendum, Franchisee shall also pay Franchisor telephone line
charges set forth on Exhibit A. It is understood that if Franchisee's
product agreements) with Franchisor expires within the first twelve months
following the Commencement Date and Franchisee and Franchisor execute a new
Addendum to Contract Dealer Gasoline Agreement (PayPoint Network Non-Lessee
ARCO Retailer) and Franchisee has installed and is operating an ICR Device
and is therefore eligible for the waiver of transaction fees as set forth
above, Franchisee shall pay no transaction fees for participation in the
PayPoint Network for the number of months remaining of the original twelve
month waiver period following the original Commencement Date referred to in
this Addendum.
If Franchisor terminates this Addendum at any time during the term of this
Addendum for cause or because Franchisee has been designated a Special
Retailer as described in Paragraph 14, or if Franchisee elects to terminate
this Addendum at the end of the thirteenth month following the Commencement
Date, as provided below for Franchisees on their initial PayPoint
agreement, Franchisee shall pay Franchisor as set forth on Exhibit D,
attached hereto, incorporated herein and made a part hereof, for
disconnection and removal of telephone lines. Franchisee agrees to pay
promptly when due and to hold Franchisor harmless from all fees, and sales,
use, rental, gross receipts, inventory, excise, income and any other taxes
(including interest, penalties, and additions to tax) imposed by any
federal, state or local governmental authority upon Franchisee or
Franchisor (except those taxes based upon or measured by the net income of
Franchisor) in connection with any payments made pursuant to this Addendum.
Franchisee agrees to pay promptly when due and to hold Franchisor harmless
from all sales or use taxes and other similar taxes (including interest,
penalties and additions to tax) imposed upon or with respect to charges or
the use of any loaned property. Franchisee shall furnish to Franchisor,
promptly upon request, any documentation, which in Franchisor's discretion
is required to evidence the payment of any tax, including, but not limited
to, official receipts of the appropriate taxing authorities, copies of tax
returns and canceled checks.
If this is the initial PayPoint agreement between Franchisee and
Franchisor, on the first day of the thirteenth month following the
Commencement Date, Franchisee shall have the option, upon giving Franchisor
at least 30 days prior written notice, to terminate this Addendum; to
downgrade the number of PayPoint Electronic Cashiers (Island CardReaders),
if applicable; to downgrade to the Paypoint Cashier
only (ARCOmatic terminal), if applicable; or the downgrade to the PayPoint
Authorization Terminal (low end terminal device). Any downgrading of
equipment is at Franchisee's sole cost and expense.
5. Security
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Franchisee shall require each Cardholder to enter his or her PIN on the POS
Equipment at the Facility in order to initiate a Transaction, except to
complete Preauthorized Transactions. All Cardholder PINs transmitted to
Franchisor must be encrypted at the POS Terminal or ICR Device where the
PIN is entered and must remain encrypted from such point of entry
throughout the PayPoint Network. After completion of the Transaction, no
PINS shall be retained by Franchisee. Franchisee agrees to take all
precautions Franchisor may reasonably require to ensure security of data
transmitted between the Franchisee location and participating Financial
Institutions and in no event shall Franchisee permit PINS to be transmitted
"in the clear."
6. Transaction Approval or Denial
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It is understood that participating Financial Institutions have sole
discretion to give approval or denial to Transactions requested by
Franchisee and a Cardholder. Franchisee agrees to draw no positive or
negative inference about a Cardholder from a participating Financial
Institution's approval or denial.
7. Access to Franchisee Location; Promotion and Evaluation of PayPoint Network
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Franchisee agrees to provide reasonable access to the Franchisee location
to Franchisor's employees, agents and contractors and, if accompanied by
Franchisor's employees, agents or contractors, to participating Financial
Institutions. Franchisee acknowledges that Franchisor and participating
Financial Institutions, shall require access to install and test the
PayPoint Network Service and equipment, to demonstrate PayPoint Network
Services to Cardholders, to study Cardholder use of the PayPoint Network
and to ensure Franchisee's compliance with this Addendum.
To the extent permitted by law, Franchisee agrees to place, at the
Franchisee location, promotional and other materials provided by
Franchisor. Franchisee agrees further to cooperate with Franchisor in it
efforts to promote and evaluate the PayPoint Network.
8. Interruption of Service
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Franchisor and Franchisee shall cooperate to resolve any system malfunction
or problem that interrupts normal operation of the PayPoint Network.
Franchisor shall provide instructions and procedures for the handling of
Transactions that are initiated when communications between Franchisor, the
participating Financial Institutions and the Franchisee location are
interrupted. Franchisee shall
immediately notify Franchisor's Maintenance Department if there is an
interruption of the PayPoint Network.
9. Cardholder Refund or Reversal/Void Transactions
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Cardholder refund transactions shall not be processed electronically, but
shall be processed by refunding cash or otherwise reimbursing the
Cardholders. Receipts shall be made available to Cardholders in accordance
with Paragraph 10 of this Addendum for all such Transactions.
10. Receipts
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For each Transaction approved through the PayPoint Network, Franchisee
shall make a receipt available to the Cardholder. The receipt shall
contain all information required by Federal Reserve Board Regulation E or
other applicable laws and regulations. Receipts shall include the
following information: Cardholder's access card number, name and location
of the Facility, date, time, amount of Transaction, type of Transaction
(payment), type of account to or from which funds are transferred (unless
only one type of account may be accessed), Franchisor assigned transaction
or trace number and/or Financial Institution assigned reference number if
the Transaction has been transmitted to Financial Institution, and, if
applicable, any Transaction Fee.
Franchisee understands and agrees that portions of this Addendum are for
the benefit of participating Financial Institutions and therefore, if
Franchisee breaches some of the terms and conditions of this Addendum,
including but not limited to:
(a) breaches of the Receipt provisions of this Paragraph 10;
(b) breaches of the Cardholder Dispute provisions of Paragraph 11 of this
Addendum;
(c) initiation or attempt to initiate by Franchisee or its agents or
employees unauthorized transactions;
(d) uses of any participating Financial Institution's name or marks or
references to any participating Financial Institution in any advertising,
point of purchase material, news release or trade publication without
Franchisor's prior written consent or the sublicense or attempt to
sublicense Franchisee's right to use such name or marks after receiving
such consent;
(e) failure to display, to the extent permitted by law, promotional and
other materials as required by Paragraph 7 of this Addendum or failure to
cease using and return any such materials should any participating
Financial Institution withdraw from PayPoint Network participation:
(f) drawing a positive or negative inference about a Cardholder from a
participating Financial Institution's approval or denial in breach of the
provisions of Paragraph 6 of this Addendum;
(h) failure to follow the PayPoint Network procedures set forth in
Paragraph 3 of this Addendum;
(i) breaches of the Confidentiality/Non-Disclosure provisions of Paragraph
16 of this Addendum;
(j) breaches of the Security provisions of Paragraph 5 of this Addendum;
or
(k) breaches of the indemnification provisions of Paragraph 15 of this
Addendum.
Franchisor or participating Financial institution(s) shall have the right
to name Franchisee a "Special Retailer" and to recover from Franchisee for
the amount of all claims, liability, losses and expenses, notwithstanding
any limits contained in Paragraph 15 of this Addendum, and (including,
without limitation, attorneys fees) asserted against or incurred by
Franchisor or such Financial Institutions) as a result of such breach.
Such right to recover an the part of Franchisor or participating Financial
Institutions shall include the right to debit the Franchisee's Trade
Statement or electronically debit Retailer's Account, if Franchisee has not
forwarded such amount to Franchisor within a period of time specified in a
notice to the Franchisee. Such third party beneficiary rights shall be
enforceable against Franchisee despite any defenses Franchisee may have
against Franchisor.
Furthermore, Franchisee understands and agrees that a breach of this
Addendum may be grounds for termination/non-renewal of the Contract Dealer
Gasoline Agreement.
11. Resolution of Disputes
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(a) Cardholder Disputes
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Franchisee acknowledges that participating Financial Institutions are
required by Federal law to resolve errors asserted by Cardholders, and to
provide documentation requested by Cardholders, within certain time limits.
Franchisee agrees to cooperate with Franchisor and participating Financial
Institutions to resolve Cardholder disputes or inquiries about PayPoint
Network Transactions. To facilitate resolution of Cardholder disputes,
Franchisee shall retain, for a period of at least one hundred eighty (180)
days, copies of receipts issued to Cardholders pursuant to Paragraph 10 of
this Addendum, or reports from which Transaction information can be
retrieved. In response to an oral request by Franchisor or a participating
Financial Institution, to be confirmed in writing, Franchisee shall, within
three (3) Working Days of the oral request, send documentation to
Franchisor or to
such Financial Institution, as instructed by Franchisor, showing requested
receipt information for any Transaction that occurred within the previous
one hundred eighty (180) days. If Franchisee fails to provide the requested
information within three (3) Working Days, Franchisor shall, at the request
of the participating Financial Institution, debit Franchisee's Trade
Statement or electronically debit the Retailer's Account, for the amount
disputed by the Cardholder and credit, through the participating Financial
Institution, the Cardholder's deposit account for the amount disputed. The
obligations of this Paragraph 11 shall survive termination of this
Addendum. Detailed procedures for customer dispute resolutions are
incorporated herein, made a part hereof and attached hereto as Exhibit B.
(b) Franchisee Disputes
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Franchisee agrees to review all Franchisee Account Statements and
Management Reports (including journal tapes, daily sales reports and
Management Report Printer tapes) and, within 60 days of a Transaction, to
notify the PayPoint Network computer facility(ies) by telephone, to be
confirmed immediately in writing, of any errors, discrepancies or disputes
that Franchisee has concerning such Transaction. Neither Franchisor nor
participating Financial Institutions shall be liable for errors,
discrepancies or disputes of which Franchisee fails to notify Franchisor
within such 60 day period. If the resolution of the error, discrepancy or
dispute by Franchisor or a participating Financial Institution involves a
credit to Franchisee, Franchisor shall pay Franchisee such credit by check.
(c) Disputes Over-Merchandise or Service
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Franchisee shall handle all disputes over quality of merchandise or
services purchased from Franchisee by Cardholders directly with Cardholders
and shall indemnify and hold Franchisor and participating Financial
Institutions harmless from any claim, action, damage or expense, including
strict liability in tort, arising out of such disputes or the sale of goods
or services by Franchisee; provided, however, to the extent Franchisee's
petroleum or non-petroleum franchise agreements, if any, are contrary to
this provision as to Franchisor, such petroleum or non-petroleum franchise
agreement shall be controlling as to Franchisor.
12. Transaction Error Resolution
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In certain unusual circumstances, Retailer's Account may be erroneously
credited with an amount for a Transaction that did not occur at the
Franchisee location or with a duplicate of an amount of a Transaction or
fees for which Retailer's Account was previously credited. In such
circumstances, Franchisee shall, within three (3) Working Days of receipt
of an oral request, provide Franchisor with the amount of such erroneously
credited or duplicate amount. If Franchisee fails to provide Franchisor
with such amount, Franchisee agrees that Franchisor shall have the right to
debit Franchisee's Trade Statement or electronically debit Retailer's
Account for the amount of such erroneously credited or duplicate amount so
that Franchisor may properly credit the Cardholder or other retailer's
account.
13. Settlement: Settlement Reporting
--------------------------------
Franchisor shall process all approved Transactions captured each Settlement
Day and any preceding non-Settlement Day and make arrangements for the
funds to which Franchisee is entitled to be deposited into his or her
Retailer's Account.
Deposit and Transaction totals shall be made available to Franchisee by way
of the POS Terminal, if possible; otherwise, by way of, written reports.
Franchisor shall also mail to Franchisee, on request, summary reports of
PayPoint Network Transactions at the Facility.
14. Term: Termination
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Except as otherwise provided in this Addendum, PayPoint Network Service
shall be provided from the Effective Date or, where applicable, the
Commencement Date until the termination or expiration of Franchisee's
Contract Dealer Gasoline Agreement with Franchisor. The Commencement Date
shall be set forth in a notice from Franchisor to Franchisee.
Franchisor may terminate this Addendum for any reason upon at least ninety
(90) days advance written notice to Franchisee. For cause, Franchisor may
terminate this Addendum immediately upon giving written notice to
Franchisee. In addition, Franchisor may, at its sole option, terminate
Franchisee's ability to accept access cards from certain participating
Financial Institutions or terminate this Addendum or the Contract Dealer
Gasoline Agreement immediately if a Financial Institution notifies
Franchisor that it has designated Franchisee as a "Special Retailer," i.e.,
a Franchisee that Financial Institution has reason to believe has
originated unauthorized Transactions to a Cardholder's deposit accounts or
a Franchisee from whom an excessive number of Transactions are ultimately
subject to chargeback, that is, debit of Franchisee's Trade Statement as
more fully described in Paragraph 10 of this Addendum or a Franchisee who
violated or failed to comply with the Security provisions referred to in
Paragraph 5 of this Addendum. On the first day of the thirteenth month
following the Commencement Date, Franchisee may terminate this Addendum for
any reason upon at least thirty (30) days advance written notice to
Franchisor. In the event of termination, Franchisee shall return to
Franchisor all instructional and promotional material Franchisor has
provided for use with the PayPoint Network and shall cease to use and
display the "Marks" as defined in Paragraph 17a and participating Financial
Institutions' trademarks, trade names and trade indicia and shall remove
all decals and signs indicating Franchisee's participation in the PayPoint
Network and, if Franchisee is terminated for cause or because he/she has
been designated a Special Franchisee, Franchisee shall pay the applicable
amount set forth on Exhibit D.
In the event Franchisee refuses to, or is unable to return the material
and/or to cease use and display, then Franchisor shall have the right to
enter Franchisee's
Facility and remove all such material, decals, and signs, and Franchisee
agrees to pay the costs therefor.
15. Indemnification
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Each party shall indemnify the other and hold it harmless and Franchisee
shall indemnify participating Financial Institutions from any claim,
action, damage or expense of any kind arising solely from fault or neglect
of the indemnifying party, including but not limited to claims of
infringement of any patent, copyright, trade secret or other proprietary
right in the operation of the PayPoint Network. Neither party shall be
liable to the other for any special, indirect or consequential damages,
including but not limited to lost profits, even if the parties have
knowledge of the possibility of such damages.
Franchisee shall indemnify, hold harmless and defend Franchisor and
participating Financial Institutions from and against all claims, losses,
costs, damages, liabilities, and expenses (including reasonable attorneys'
fees) which are suffered as a result of any Transaction or attempted
Transaction and arise out of:
(a) Personal injury or tangible property damage suffered or incurred by
any person on Franchisee's premises;
(b) Negligence or fraudulent conduct of Franchisee, Franchisee's agents
and employees and independent contractors;
(c) Unauthorized entry of data into the PayPoint Network or any Financial
Institution's debit card system/network by Franchisee from any point in the
PayPoint Network including the data communication link connecting the
PayPoint data processing facility(ies) and any Financial Institution's
debit card system/network, and POS equipment;
(d) Unauthorized receipt of data from any Financial Institution's debit
card system/network by Franchisee from any point in the PayPoint Network
including the data communication link connecting the PayPoint data
processing facility(ies) and any Financial Institution and POS Equipment;
(e) Disputes over Franchisee's sale or lease of goods or services; or
(f) Failure of Franchisee, its employees, agents and its independent
contractors to comply with this Addendum, or with applicable federal,
state, or local laws, rules or regulations.
However, Franchisee shall not be liable for the failure by any Financial
Institution to discover a Technical Error, originated by Franchisee.
16. Confidentiality: Nondisclosure
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Franchisee acknowledges that all information that is disclosed to, or comes
to the attention of Franchisee for purposes of the development or operation
of any aspect of the PayPoint Network (herein "Information") is strictly
confidential. Franchisee agrees that Franchisee shall not use for any
purpose other than Franchisee's use of the PayPoint Network or disclose
said Information or knowingly permit Franchisee's employees or contractors
to disclose said Information to any person outside Franchisor and
Franchisee, or to any employee or contractor of Franchisor or Franchisee
who does not have a specific need to know in performance of work hereunder.
Franchisee acknowledges that participating Financial Institutions have a
responsibility to their Cardholders to keep all records pertaining to
Cardholders' banking transactions (herein "Cardholder Information")
strictly confidential. Franchisee shall maintain the confidentiality of
Cardholder Information.
This paragraph shall not prevent the participating Financial Institutions
from disclosing to their Cardholders information about such Cardholders'
individual transactions.
Franchisor agrees to use reasonable care to avoid disclosure of information
relating to sales by Franchisee (herein "Sales Information") other than to
Financial Institutions and other third parties who require access to Sales
Information for purposes relating to Franchisee's use of or Franchisor's
operation of the PayPoint Network. Franchisor's obligation of non-
disclosure shall not apply to any Sales Information which is or becomes
available to the public other than through breach of this Addendum by
Franchisor. It is presently Franchisor's policy (which may be changed at
any time by Franchisor at its sole option without notice) to destroy all
records of Sales Information after two (2) years. Franchisor's obligation
of non-disclosure with respect to Sales Information shall terminate upon
destruction of such Sales Information.
The obligations of this Paragraph 16 shall survive termination of this
Addendum.
17. Service Xxxx License
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(a) PayPoint, PayPoint Electronic Cashier, PayPoint Cashier, PayPoint
Network, PayPoint and "Triangle" design, Electronic PayPoint, and the
"Triangle" Design (hereinafter called "Marks") are service marks of
Franchisor.
(b) During the term of this Addendum, Franchisor grants to Franchisee for
use at Franchisee's Facility a non-exclusive license and right to use the
marks in connection with the PayPoint Network as defined in Paragraph 3,
but only so long as such services are performed using equipment approved by
Franchisor and such equipment is maintained in good operating order and is
operated in accordance with
Franchisor's training program and guidelines as promulgated from time to
time by Franchisor.
(c) Franchisor shall have the right at all time to enter Franchisee's
Facility for the purpose of inspecting the equipment used with the PayPoint
Network, and to satisfy itself that services are being provided to the
public according to Franchisor's standards.
(d) During the term of this Addendum, Franchisee shall be permitted to use
and display the marks and other names and trade indicia used or authorized
for use by Franchisor in connection with the PayPoint Network, but only in
accordance with standards as set forth from time to time by Franchisor for
the type of facility Franchisee is operating. Franchisee shall only be
permitted to use or display names, marks, symbols, or trade indicia
belonging to participating Financial Institutions in conjunction with
PayPoint equipment or on advertising upon Franchisor's prior approval, and
such use and display is subject to whatever restrictions Franchisor or such
institutions may prescribe.
(e) Franchisor expressly reserves the right to change, alter, modify, or
withdraw the Marks, or any of them including the PayPoint name, at any time
by giving Franchisee not less than thirty (30) days prior written notice
thereof. In the event of such change, alteration or modification,
Franchisee agrees that it shall henceforth not use the xxxx or name which
has been changed, altered, modified, or withdrawn. In the event the
PayPoint name is changed, altered, modified, or withdrawn by Franchisor, it
is agreed that the new name or Xxxx shall be substituted for "PayPoint
Network" as it appears in this Addendum.
(f) Franchisee recognizes Franchisor's ownership and title to the Marks
and shall not claim adversely to Franchisor any right, title, or interest
thereto. Particularly, Franchisee agrees, during and after the term of
this Addendum, not to use, register or attempt to register as a trademark
or as a trade or corporate name, or aid any third party in registering or
attempting to register, any of the Marks or any marks, names, or symbols
confusingly similar thereto, or incorporating one or more of the words in
such marks or names as trademarks or service marks, or as trade or
corporate names.
(g) All use of the Marks by Franchisee shall inure exclusively to the
benefit of Franchisor and Franchisor may utilize such use in registering or
defending such Marks. Franchisee agrees to cooperate with Franchisor in
providing evidence or testimony relative to or supporting Franchisee's use
of said Marks. Any registrations obtained by Franchisee contrary to
Section (f) shall be held in trust for Franchisor and assigned by
Franchisee to Franchisor upon Franchisor's request.
(h) Upon termination of this Addendum or the Contract Dealer Gasoline
Agreement, the undertakings and duties of Franchisee in Sections (f) and
(g) shall survive and Franchisee shall cease using and remove the Marks and
any names, marks, symbols, or trade indicia of participating Financial
Institutions as set forth in Paragraph 14 of this Addendum.
18. Force Majeure
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No failure, delay or default in performing any obligation hereunder shall
constitute default or breach of this Addendum to the extent that it arises
from causes beyond the control and without fault or neglect of the party
otherwise chargeable with failure, delay or default, including but not
limited to: action or inaction of governmental, civil or military
authority; strike, lockout or other labor dispute; war, riot or civil
commotion; theft, fire, flood, earthquake, natural disaster; or default of
a common carrier.
The party wishing to rely on this paragraph to excuse failure, delay or
default shall, when the cause arises, give the other party prompt written
notice of the facts constituting same, and when the cause ceases to exist,
give prompt notice to the other party.
19. Assignment
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Franchisee shall not assign any of its rights or delegate any of its
obligations pertaining to the PayPoint Network without the prior written
consent of Franchisor. Any assignment or delegation made without such prior
written consent shall be void and any assignment or delegation to which
Franchisor consents must be in conjunction with an assignment of the
Contract Dealer Gasoline Agreement.
20. Prices Goods and Services
-------------------------
No provision of this Addendum shall be construed as an agreement by
Franchisor or participating Financial Institutions to the retail prices
charged or the quantity or quality of goods sold or services rendered by
Franchisee to Cardholders or to customers of Franchisee.
21. Independent Contractor
----------------------
Franchisor and Franchisee are independent contractors with respect to the
subject matter of this Addendum and neither party nor its employees shall
be deemed for any purpose to be the agent, employee, servant or
representative of the other with respect to the subject matter of this
Addendum.
IN WITNESS WHEREOF, the parties have executed this Addendum, or caused it to be
executed on their behalf on the dates indicated below.
ARCO Products Company, Franchisee
a division of AtlanticRichfield Company
/s/ Xxxxxx Xxxxxxx 9/2/99 /s/ Xxxx Xxxxxxxxxxx 9-29-99
------------------------------------- -------------------------------------
Date LLO-Gas, Inc. Date
/s/ Xxxxxx Xxxxxxx 9/2/99 /s/ Xxxxxx Xxxxxx 9-29-99
------------------------------------- -------------------------------------
Witness Date Witness Date
ARCO Contract Dealer/Distributor
______________________________________________________________________
PayPoint Network Fees
Transactions per Month Fee per Transaction
0 to 1,000 $.10
1,001 to 2,000 .08
2,001 to 3,000 .06
3,001 to 4,000 .04
Over 4,000 .02
Minimum Monthly Charge = $60.00
There will be no transaction fee during the first 12 months following the
Commencement Date if Retailer installs a PayPoint Electronic Cashier(R),
purchased through ARCO, at the pump island.
Phone Line Fee Options:
Leased Line -- $100 per month plus any phone company pass-through costs
including installation for each dedicated line or Dial Line -- installation
costs plus monthly phone charge including per item phone calls.
Billing and Payment Terms:
Unless Retailer is entitled to 12-month waiver of the fee as set forth above, a
fee will be charged for each Transaction. By the twentieth day of the following
month, Retailer will be issued an invoice for: the total transaction times the
fee per transaction for the tier achieved; the monthly phone line fee; and any
portion of the monthly minimum not achieved. Invoices are payable upon receipt.
If Retailer's Contract Dealer or Distributor Agreement expires and is not
renewed or is canceled prior to the expiration of the PayPoint Retailer
Agreement, the PayPoint Agreement will be canceled or, at ARCO's option, can be
converted to a Non-ARCO PayPoint Retailer Agreement.
Transaction Definition:
A "Transaction" means each use of an access card by a Cardholder for the purpose
of paying for a purchase of a product or service or receiving cash, scrip, a
refund or a reversal/void from Retailer's Facility through use of the PayPoint
Network to which a participating Financial Institution responds with an Approval
or Denial code.
EXHIBIT B
Retailer Resolution of Cardholder Disputes
------------------------------------------
PayPoint Network
A cardholder dispute is initiated when a financial institution is notified
of its cardholders complaint. If a cardholder informs a Franchisee that a
problem exists with a transaction made at the retail facility prior to the date
of the complaint, the Franchisee should inform the cardholder that the complaint
should be taken to the cardholder's financial institution. All resolutions must
originate at the cardholder's financial institution.
Examples of complaints:
a) Cardholder was charged twice for a purchase.
b) Cardholder never made the purchase, he/she was billed far by his/her
financial institution.
Procedure for resolution of cardholder complaints by the PayPoint Network:
1) Cardholder disputes a transaction and notifies financial institution.
2) Financial institution then notifies the Franchisor switch of the
problem.
3) The switch researches its records and makes every effort to find the
disputed transaction in order to resolve the problem.
4) However, if the switch is unable to find the disputed transaction in
the records maintained at the switch, the Franchisee will be notified
via telephone. The switch contact person will provide the Franchisee
with the data furnished by the financial institution and request a
copy of the cardholder receipt and/or a copy of the Management Report
Printer (MRP) report showing the disputed transaction information.
5) This telephone request will be immediately followed by a written
request - a copy of the PayPoint Network Retailer Transaction
Information Request form containing all the required transaction
information. This form will be mailed to the Franchisee within one (1)
working day of the telephone call. A copy of this form is attached.
6) The Franchisee will have only three (3) working days after receipt of
the request to research the transaction and send the requested
information to the financial institution listed on the form.
7) The Franchisee is subject to chargeback of the transaction amount in
question if the requested information is not sent within three (3)
working days.
8) The Franchisee must send a copy of the completed PayPoint Network
Retailer transaction Information Request form along with a copy of the
customer receipt and/or MRP report (the same information furnished to
the financial institution) to the Franchisor switch within one (1)
working day of sending the information to the financial institution.
EXHIBIT C
PayPoint Network Retailer Account Designation*
----------------------------------------------
RETAILER:
________________________________________________________________________________
ADDRESS:
________________________________________________________________________________
CITY:
________________________________________________________________________________
STATE/ZIP CODE:
________________________________________________________________________________
I HEREBY AUTHORIZE ARCO PRODUCTS COMPANY, A DIVISION OF ATLANTIC RICHFIELD
COMPANY, TO CREDIT THE ACCOUNT** DESCRIBED BELOW FOR SETTLEMENT PURPOSES FOR
SERVICES PROVIDED THROUGH THE ARCO PAYPOINT NETWORK.
THE ACCOUNT TO WHICH SUCH CREDITS SHOULD BE APPLIED IS
ACCOUNT NO._____________________________________________________________________
AT______________________________________________________________________________
BRANCH NO.______________________________________________________________________
PAYPOINT NETWORK RETAILER
BY:
____________________________________
TITLE:
____________________________________
DATE:
____________________________________
* If Retailer has different Retailer's Accounts for its Retailer's Facilities,
an Exhibit C must be completed for each different Facility.
**FINANCIAL INSTITUTION MUST BE A MEMBER OF NACHA.
PAYPOINT NETWORK
Retailer Transaction Information Request
----------------------------------------
CLAIM NO.:
----------------------------------------------------------------------
DATE CLAIM RECEIVED:
------------------------------------------------------------
TODAY'S DATE:
-------------------------------------------------------------------
A dispute has been filed by a cardholder regarding the following transaction:
FI CARD NO.:
--------------------------------------------------------------------
TRANSACTION AMOUNT: TRANSACTION DATE:
---------------- --------------------------
TRANSACTION TIME: REFERENCE NO.
------------------ -----------------------------
Please return a copy of cardholder receipt or management report printer (MRP)
report showing requested financial data within three (3) working days to:
FINANCIAL INSTITUTION:
----------------------------------------------------------
ADDRESS:
------------------------------------------------------------------------
--------------------------------------------------------------------------------
CONTACT PERSON:
-----------------------------------------------------------------
YOU ARE SUBJECT TO CHARGEBACK OF TRANSACTION AMOUNT IN QUESTION IF "REQUESTED
INFORMATION" IS NOT SENT WITHIN THREE (3) WORKING DAYS
-----------------------------
Franchisee:
Return a copy of this form along with copy of cardholder receipt and/or MRP
report to:
NAME:
--------------------------------------------------------------------------
ADDRESS:
------------------------------------------------------------------------
--------------------------------------------------------------------------------
DATE INFORMATION SENT TO FINANCIAL INSTITUTION:
---------------------------------
EXHIBIT D
POS and Remote Equipment
Disconnection and Removal
Fee Schedule
------------
Telephone Line Disconnection $200.00
Each Inside Terminal Disconnection and Removal $200.00
Each Outside Terminal Disconnection and Removal $400.00
