1 Definitions.
1.1 Account. “Account” shall mean the internal Fuelz account established for Client.
1.2 Agreement. “Agreement” shall mean this agreement comprised of the Application (if any), the Approval Letter (if any) and this document containing the Terms and Conditions.
1.3 Agreement Date. “Agreement Date” shall mean the date on which Fuelz accepts the Client’s Application and issues one or more Cards for Client’s Account.
1.4 Application. “Application” shall mean the application completed by Client in applying for the Account through Fuelz.
1.5 Approval Letter. “Approval Letter” shall mean the letter or email, if any, sent by Fuelz to Client that approves the Application and establishes the Account under these Terms and Conditions.
1.6 Bank Account. “Bank Account” shall mean any bank account that Client has designated on the Application or by written notice to Fuelz for electronic funds transfer, automated clearinghouse or other electronic transfer of money to pay amounts due for Client’s Account.
1.7 Billing Cycle. “Billing Cycle” shall mean the period of time set forth in the Approval Letter or any subsequent notification for which Transactions will be accepted and a Statement for the Account will be provided.
1.8 Card or Cards. “Card” or “Cards” shall mean the Fuelz fleet card or cards issued to Client.
1.9 Cardholder. “Cardholder” shall mean the person presenting the Card to the Merchant to be used to purchase Fuel and/or Maintenance.
1.10 Client. “Client” shall mean the business entity identified in the Application.
1.11 Client’s Representative. “Client’s Representative” shall mean the person(s) identified as Client’s authorized representative on the Application.
1.12 Driver ID. “Driver ID” shall mean the personal identification number issued to the Client by Fuelz for use with a Card to authorize a particular Transaction.
1.13 Due Date. “Due Date” shall mean the date upon which payment from Client is due to Fuelz as stated on Fuelz’s Statement to Client.
1.14 McPherson. “McPherson” shall mean The McPherson Companies, Inc. the company which owns the Accounts and in whose favor all Obligations, as defined in Section 10.2, of Client under this Agreement flow.
1.15 Fuelz. “Fuelz” shall mean Fuelz, the division of McPherson administering the Card(s) and Account.
1.16 Fuel. “Fuel” shall mean any combustible material dispensed by volume that is purchased with a Card.
1.17 Fuelman Network. “Fuelman Network” shall mean a network of Merchant Locations for Fuel and Maintenance where Client may make purchases with Cards pursuant to this Agreement.
1.17 Guaranteed Obligations. “Guaranteed Obligations” shall have the meaning set forth in Section 10.3.
1.18 Guarantor(s). “Guarantor” shall mean the person(s) identified on the Application or a separate guaranty document, if any, that guarantees Client will comply
with this Agreement and pay all amounts owed to Fuelz.
1.19 Maintenance. “Maintenance” shall mean any non-Fuel product or service for a vehicle that is purchased with a Card (e.g., oil, wiper blades, fluids, towing, roadside assistance, parts, supplies, tires, oil changes, brakes, glass, exhaust systems, transmissions, and repair services).
1.20 Merchant. “Merchant” shall mean a third party that operates retail locations providing Fuel and/or Maintenance in the Fuelman Network.
1.21 Merchant Location. “Merchant Location” shall mean a Merchant’s Fuel and/or Maintenance site that is participating in the Fuelman Network, such that a Card may be used to purchase Fuel and/or Maintenance at such site.
1.22 Miscellaneous. “Miscellaneous” shall mean any non-vehicle related product or service that is purchased with a Card (e.g., food, drink, magazines, cigarettes, lottery tickets).
1.23 Principal. “Principal” shall mean the person identified on the Application, if any, who applies for the Account as a co-maker with the Client.
1.24 Reporting. “Reporting” shall mean related products or services that are purchased to manage the vehicle fleet (e.g., paper report delivery, fax report
delivery).
1.25 Statement. “Statement” shall mean the billing statement provided at the end of each Billing Cycle.
1.26 Terms and Conditions. “Terms and Conditions” shall mean the terms and conditions contained in this Agreement and any other electronic or paper document presented to the Client by or on behalf of Fuelz in connection with this Agreement (e.g. the physical card, driver instructions, site guides, reports,
billing/statement inserts, application, and web site). In the event of a conflict between any such other document and this Agreement, this Agreement will control unless specifically provided otherwise in the other document.
1.27 Transaction. “Transaction” shall mean any individual purchase with a Card.
2 General
2.1 Agreement for Account and Services. Client and, if applicable, Guarantor, submit an Application to signify Client’s application for an Account with Fuelz. If Fuelz accepts such Application, Fuelz shall send an Approval Letter and these Terms and Conditions to Client’s Representative along with Cards and Driver IDs issued for the Account. Upon Client’s first Transaction with a Card, Client shall be deemed to have accepted the Approval Letter and these Terms and Conditions and Client and Fuelz shall be deemed to have entered into this Agreement. If a Guarantor executes the Application, then Client and Guarantor shall both be responsible for all payments owed by Client hereunder and for compliance by Client with these Terms and Conditions. If a Principal jointly submits the Application with Client, then Client and Principal are jointly and severally responsible for all payments owed by Client hereunder and for compliance with these Terms and Conditions
2.2 Entire Agreement. These Terms and Conditions, together with the Application (if any) and the Approval Letter (if any), are the exclusive statement of the terms and conditions with respect to Client’s Account as of the Agreement Date and supersede all prior agreements, negotiations, representations and proposals, whether written or oral. Deviations from the Agreement are not valid unless confirmed in writing by an authorized representative of Fuelz.
3 Account Administration and Card Issuance.
3.1 Establishment of Client Account. Upon approval of application, Fuelz will establish an Account for Client that will be used to pay for Fuel, Maintenance and Miscellaneous item purchased through the use of the Cards at Merchant Locations.
3.2 Government Regulation. Neither Client nor any Guarantor of the Account shall (a) be or become at any time, and are not currently, subject to any law, regulation, or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or limits Fuelz from making any advance or extension of credit to Client or any Guarantor of the Account or from otherwise conducting business with Client or any Guarantor of the Account, or (b) fail to provide documentary and other evidence of Client’s identity or the identity of any Guarantor of the Account or person to whom Client gives a Card, as may be requested by Fuelz at any time to enable Fuelz to comply with any applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
3.3 Credit Limit. Upon Fuelz’s approval of the Client’s Application, Fuelz will establish an aggregate spending limit for all Cards issued to Client under the Account (the “Credit Limit”) based on Fuelz’s evaluation of the Client’s creditworthiness. The initial Credit Limit will be provided to Client in the Approval Letter. Fuelz reserves the right to increase or decrease this Credit Limit at any time with or without providing notice to Client.
3.4 Initial Cards. Upon Fuelz’s approval of Client’s Application, Fuelz will issue one or more Cards and Driver ID numbers to Client. The Cards and Driver IDs delivered to Client will become active upon Client’s first use of a Card. Client shall be responsible for distributing the Cards and Driver IDs to its employees or
agents.
3.5 Additional Cards. If, at some time after the initial issuance of Cards to Client, Client desires one or more additional Cards, Client must notify Fuelz via the online application or in writing. Fuelz reserves the right to charge a fee of up to two dollars and fifty cents ($2.50) for creating and delivering each additional Card.
3.6 Administration of Cards. Client shall be solely responsible for the use, maintenance, administration, and security of the Cards and Driver IDs within Client’s business, including, but not limited to, distributing Cards to, and collecting Cards from, its employees and agents. Notwithstanding any other provision in this Agreement, Client is responsible for any loss or misuse of Cards by its employees and agents. See Section 16 for more information regarding Client responsibilities.
3.7 Maintenance of Program Administration. Fuelz shall be responsible for collecting and reporting all Transactions by date, vehicle, Merchant Location, and driver based upon data received by Fuelz. In addition, Fuelz shall be responsible for maintaining the database for the Client with all Card numbers, vehicle data, driver data, and purchase control data. Fuelz reserves the right to charge a fee of up to fifty dollars ($99.00) a month or a minimum of ten dollars ($10.00) per Billing Cycle for account maintenance and Program Administration.
3.8 Card Fees. Fuelz reserves the right to charge a service fee of up to two dollars and fifty cents ($2.50) per Card per month to support the use of the Card.
3.9 Extended Network Pricing. Fuelz will charge a Transaction Fee for Card use at select sites/merchants. The added charge to use these sites will be up to $5 per Transaction.
3.10 Property. All Cards remain the property of Fuelz and shall be surrendered immediately by Client to Fuelz upon Fuelz’s request or if Client or Fuelz cancels the Card or Account as permitted herein.
3.11 Suspension of Cards. Fuelz, at its sole discretion, may suspend or terminate the use of any Card at any time for any reason, including, but not limited to, inactivity, unusual activity, or suspected loss, theft, fraud, or in compliance with the USA Patriot Act. However, nothing in this Agreement shall obligate Fuelz to monitor the use of any Card, and, as described in this Agreement, Client is solely responsible for the use of any outstanding Cards.
3.12 Suspension of Account. Fuelz, at its sole discretion, may suspend or terminate the use of an Account at any time for any reason, including, but not limited to, inactivity, unusual activity, change in creditworthiness, late payment (excessive days beyond terms), aggregate outstanding balance owing on the Account (outstanding Account balance and unbilled Transactions) over the Credit Limit or in compliance with the USA Patriot Act. Fuelz reserves the right to charge up to a fifty dollar ($50) fee for Account reinstatement each time a previously suspended Account is reinstated.
3.13 Non-Transferability; Revocability. All Cards and any and all rights and privileges to which its holders are entitled are not transferable and may be revoked for any reason, including, but not limited to, a breach of any of the Terms and Conditions of this Agreement, without prior notice at any time and with no liability to Fuelz, at which time any credit extended hereunder shall be revoked and all sums owed by Client to Fuelz pursuant hereto shall become immediately due and payable.
4 Services Provided.
4.1 General Services. Fuelz shall provide the following services to Client under this Agreement:
4.1.1 Issue to Client the Cards upon Fuelz’s approval of the Application.
4.1.2 Maintain a network of Merchant Locations for Fuel and Maintenance where Client may make purchases with Cards pursuant to this Agreement.
4.1.3 Provide an online directory to identify approved Merchant Locations.
4.1.4 Maintain an authorization control system to verify that a Card being presented for payment is valid/active and that the Driver ID being used is valid/active for that particular Card. In addition, individual Card-level spending limits can be established by Client for each product category (e.g., Fuel, Maintenance supplies, Maintenance services, Miscellaneous).
4.1.5 Issue management reports and billing Statements to Client showing details of all posted Card Transactions (as detailed in Section 11.2) during the Billing Cycle.
4.2 Referrals. Fuelz reserves the right to deliver informational material in reference to ancillary fleet management related products and services provided by other vendors to the Client. In no case is Fuelz making any representation about the quality or value of any particular product or service.
4.3 Ancillary Products and Services. Fuelz reserves the right to make certain ancillary fleet management related products and services (e.g., emergency roadside assistance) that are delivered by other vendors/companies available to the Client for purchase on Cards. For the purpose of reporting the Transactions, these ancillary products and services are considered Maintenance. The act of requesting the ancillary product or service with a valid Card and Driver ID, via a unique toll free phone number or web URL, establishes spending approval up to the maximum authorized amount established for that ancillary product or service regardless of the spending limit in effect for the Card. The unique toll free phone number or web URL and the maximum amount authorized for each ancillary product or service will be communicated to Client as part of the introduction of each new ancillary product or service and can also be obtained from Fuelz’s customer service representatives at the Fuelz Help Desk.
4.3.1 Preventative Maintenance Program. Preventative maintenance alerts and reporting are available subject to certain available parameters.
4.3.2 Roadside Assistance for Unattended Vehicles. Through an association with a third-party, Fuelz may offer roadside assistance for vehicles, including towing services. The services may not be available for unattended vehicles. The personnel of any such third-party provider are not the agents or employees of Fuelz and Fuelz shall not be responsible for the products or services rendered by such third-party, or for any other liability or damage which arises from the action or negligence of the personnel of the third-party, its agents or its employees.
4.4 Inability to Operate. Fuelz shall have no responsibility for any person(s) or machine(s) rejection of or refusal to honor a Card. Client agrees there shall be no liability to Fuelz or any other company or entity, if for any reason, any Merchant or Merchant Location should fail to allow the purchase of Fuel or Maintenance, fail to authorize Transaction(s) or fail to operate in any other manner, even though a Card is valid.
4.5 WARRANTY DISCLAIMER. FUELZ DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGE¬MENT. ALL FUELZ ACCOUNTS, PRODUCTS, AND SERVICES ARE PROVIDED ON AN AS-IS BASIS.
5 Purchases.
5.1 Use of Cards. Client may use the Cards at any participating Merchant Location for the purchase of Fuel, Maintenance, or Miscellaneous items. To use a Card, the Client should follow the directions for purchase established at the particular Merchant Location.
5.2 Title. As between Client and Fuelz, title to Fuel purchased with a Card passes from Fuelz to Client when the Cardholder dispenses Fuel (when fuel leaves the fuel dispensing nozzle), except as otherwise provided by applicable law. Title to any non-Fuel product or service purchased with a Card passes directly from the Merchant to Client when the Cardholder receives such non-Fuel product and/or service. Fuelz takes no title to Maintenance or Miscellaneous items.
5.3 Verification of Merchant Locations. Client acknowledges that not all retail locations selling Fuel and Maintenance accept Fuelz’s Cards. If Client is uncertain as to whether a location is able to accept the Cards, Client should visit the online site locator at https://sitelocator.fuelman.com/fuelman/ or contact Fuelz’s 24×365 Authorization Center at 800-877-9013.
6 Safety.
6.1 Safe Fueling Operation. Client shall instruct all persons to whom Client provides a Card for purchasing Fuel in safe and proper fueling procedures. Client will ensure that everyone using a Card issued in the name of Client is instructed in applicable safety measures.
6.2 Safety Laws and Notices. Client shall comply, and Client shall cause its employees and agents to comply, with all applicable local, state, and federal laws and regulations pertaining to the dispensing and use of Fuel at Merchant Locations as well as all safety notices posted by Merchants.
7 Representations and Warranties.
7.1 Client represents and warrants to Fuelz as of the date of the Application and on the date of each extension of credit under this Agreement that:
7.1.1 Client is duly organized, validly existing and in good standing under the laws of the state of its formation. Client has the power and authority to own its properties and to carry on its business as presently conducted and to execute and deliver, and enter and perform its obligations under this Agreement;
7.1.2 The execution, delivery and performance of this Agreement have been duly authorized by all necessary organizational action. This Agreement has been duly executed by Client and Guarantor, and constitutes the legal, valid and binding obligations of each such party, enforceable against such parties in
accordance with this Agreement, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights;
7.1.3 The execution, delivery and performance of this Agreement by Client and Guarantor will not violate any applicable law, rule or regulation or the charter, by-laws or other organizational documents of such parties or any judgment, order or ruling of any governmental authority;
7.1.4 The financial and other information furnished by Client and Guarantor to Fuelz in the Application, or otherwise, is true, correct and complete in all material respects; and
7.1.5 Cards issued to Client will be used only by Client’s employees and agents and will not be distributed or resold to other companies without the express written consent of Fuelz.
8 Conditions To Extension Of Credit.
8.1 Any extension of credit under this Agreement shall be subject to, and conditioned upon, satisfaction of the following requirements:
8.1.1 Fuelz’s receipt of a duly executed counterpart of the Application by Client and, if requested, the Guarantor, in form and substance acceptable to Fuelz in its sole discretion;
8.1.2 All representations and warranties set forth in this Agreement are true and correct;
8.1.3 No event shall have occurred and be continuing, or would result from the extension of credit hereunder, that constitutes or would constitute (with notice or the lapse of time or both) an Event of Default (defined below);
8.1.4 Outstanding amounts due, including any applicable fees as described in this Agreement, are paid by Due Date. Any amount not paid by the Due Date is subject to Late Fees (Section 10.7) and Finance Charges (Section 10.9);
8.1.5 After giving effect to any requested extension of credit, the aggregate outstanding balance owing on the Account (outstanding Account balance and unbilled Transactions) shall not exceed Client’s Credit Limit, as determined by Fuelz from time to time in its sole discretion; and
8.1.6 Receipt of any required deposit.
9 Pricing.
9.1 Methodology. Fuelz establishes competitive local market Fuel and Maintenance Transaction prices for the Fuelz Fleet Card program depending on a variety of factors (e.g., product costs, purchase volume, product type, market conditions, Merchant Location). Transaction pricing can be Fuelz Retail-Based, Merchant Retail-Based, Fuelz Cost-Based, Merchant National Account-Based, or a combination thereof. The pricing methodology can vary by product type. Additional charges, fees and/or discounts may apply based on the Client’s agreed-upon program.
9.2 Fuelz Retail-Based Pricing. Client price for each Fuel Transaction is set by Fuelz independent of the Merchant Location’s posted retail price. The price will never be below Fuelz’s cost. In the event there is no established retail price (e.g., unattended fueling sites, mobile refueling), the retail price will be established by Fuelz.
9.3 Merchant Retail-Based Pricing. Client price for each Fuel or Maintenance Transaction is equal to the prevailing Merchant Location’s retail price plus or minus a fixed adjustment factor but never below Fuelz cost. In the event there is no established retail price (e.g., unattended fueling sites, mobile refueling), the retail price will be established by Fuelz.
9.4 Fuelz Cost-Based Pricing. Client price for each Fuel or Maintenance Transaction is equal to Fuelz’s delivered cost plus a mark-up. Fuelz’s cost is dependent on a variety of factors and can include any or all of the following components: wholesale cost; merchant freight; dealer adjustment; network operation costs, merchant commission; and applicable taxes. Under no circumstance will Client’s price be below Fuelz’s cost.
9.5 Merchant National Account-Based Pricing. Client price for each Fuel or Maintenance Transaction is equal to the Merchant’s prevailing national account price.
10 Billing & Payments.
10.1 Billing. Billing frequency is agreed upon with the Client during the application and account setup process. Client shall be responsible for all credit extended on the Account. This is not a revolving credit account. The total amount shown on each Account Statement is due and payable in full by the Due Date shown on the Statement. Unless otherwise agreed upon, the standard Due Date is ten (10) days after the date the Account Statement is created, regardless of the delivery method. Regardless of the delivery method selected, it shall be the obligation of the Client to notify Fuelz within five (5) business days of the end of each Billing Cycle if Client does not receive a Statement. If the Client does not receive a Statement and thus payment is not completed by the Due Date, Client is responsible for any Late Fees or Finance Charges.
10.2 Payment. Client hereby unconditionally promises to pay Fuelz, in lawful money of the United States of America and in accordance with this Agreement, all outstanding Obligations (as defined below) which may, from time to time, be owing to Fuelz by Client. As used herein, “Obligations” shall mean all outstanding sums owing to Fuelz by Client, including, without limitation, reimbursement for petroleum products obtained through Fuelz, payments for any products or services obtained using the Card(s), and interest, penalties, fees, report delivery, reporting, Account Charges, service charges, costs and expenses (including attorneys’ fees) and all other obligations under this Agreement or otherwise. Failure by Client to promptly and timely pay all amounts when due shall be a breach of the Terms and Conditions of this Agreement. Conforming payments received by 4:00 p.m. Eastern Time on a business day (Monday through Friday of each week, excluding banking holidays) will be credited to your Account as of the date received. Otherwise, payments will be credited to your Account as of the next business day. In the event your billing statement reflects a Due Date which falls on a day which is not a business day, your payment must be received by 12 p.m. Eastern Time on the next business day. If we do not receive your payment for the Amount Due by the Due Date, you may not be able to make any further purchases until such time that you pay the entire outstanding balance on the account. We may change our billing and debiting cycle at any time by reflecting the change on your billing statement.
10.3 Guaranty. Guarantor hereby unconditionally and irrevocably guarantees to Fuelz and its successors, transferees and assigns, the punctual payment when due (whether at stated due date, by acceleration or otherwise) and performance of the Obligations, now or hereafter owing, whether for principal, interest, premiums, fees, expenses or otherwise (collectively, the “Guaranteed Obligations”). Any and all payments by the Guarantor hereunder shall be made free and clear of and without deduction for any set-off, counterclaim, or withholding. Guarantor acknowledges and agrees that this is a guaranty of payment when due, and not of collection, and Guarantor agrees that his or her obligations under this Agreement shall not be discharged until the payment and performance, in full, of the Guaranteed Obligations. Guarantor shall be regarded, and shall be in the same position, as Client with respect to the Guaranteed Obligations. Guarantor expressly waives all rights he or she may now or in the future have under any statute, or at common law, or at law or in equity, or otherwise, to compel Fuelz to proceed in respect of the Guaranteed Obligations against Client or any other party before proceeding against, or as a condition to proceeding against, Guarantor.
Guarantor acknowledges and agrees that any delay or failure by Fuelz to take any action regarding the Guaranteed Obligations does not limit or prohibit Fuelz from enforcing its rights under this Agreement and further that Guarantor’s liability under this Agreement shall not be eliminated or reduced by any such failure or delay on the part of Fuelz. Guarantor further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of Fuelz in respect of the Guaranteed Obligations against Client or any other party for the payment and Guaranteed Obligations. Guarantor further waives diligence, presentment and demand (whether for non-payment or protest) or notice of acceptance, maturity, extension of time, change in nature or form of the Guaranteed Obligations (including, without limitation, composition, the amount of, or the terms of, the Guaranteed Obligations), notice of material adverse change in Client’s financial condition or any other fact which might materially increase the risk to Guarantor with respect to any of the Guaranteed Obligations or all other demands whatsoever and waives the benefit of all provisions of law which are or might be in conflict with the terms of this Agreement. Guarantor represents, warrants and agrees that Guarantor’s obligations under this Agreement are not and shall not be subject to any counterclaims, offsets or defenses of any kind against Fuelz or Client now existing or which may arise in the future. The Guarantor further agrees that Guarantor will remain bound to his/her guaranty notwithstanding any amendment, modification, increase, extension or renewal of any guaranteed Obligation. The foregoing waivers are of the essence of the transaction contemplated by this Agreement and, but for the guaranty contained herein and such waivers, Fuelz would decline to make the financial accommodations to Client under this Agreement.
10.4 Account Principal Responsibility. Each Principal for this Account, if any, as shown on the Application, is personally and unconditionally, jointly and severally liable with Client for the payment and performance when due of all obligations owed on the Account, regardless of who made purchases using the Cards, and the Principal agrees to pay such amounts according to the terms of this Agreement. Principal is responsible under this Agreement for all use of the Cards issued on the Account to the fullest extent permitted by law.
10.5 Payment Methods. The below terms shall apply to each of the following payment methods:
10.5.1 Fuelz Initiated Electronic Funds Transfer / Automated Clearinghouse (EFT/ACH) Payment.
10.5.1.1 Debits to Bank Account. On the Due Date identified on the Client’s Statement, Fuelz will initiate a debit to the Bank Account to pay the accumulated balance of the Account from the previous Billing Cycle. Fuelz may also debit the Bank Account to pay the amount charged to the Account any time the balance of the Account reaches the Credit Limit. The exact time that the Bank Account will be debited for the amount charged to the Account may vary, depending on the processing capabilities of the bank at which the Bank Account exists. If insufficient funds are available in the Bank Account to pay the Account balance at the time a debit is initiated, Fuelz may prevent the Client from making any further purchases using the Cards until such time that the Client pays the outstanding balance in the Account. Fuelz may change its billing and debiting cycle at any time by providing written notice to Client.
10.5.1.2 Change in Bank Account. To change the Bank Account, Client’s Representative must provide a written request of such change to Fuelz. The request should include the following information for the new account: bank name (the bank must be a member of the National Automated Clearinghouse Association
(NACHA)); branch address; branch number; bank routing number; and account number. The request should also contain a voided check from the new account. It will take approximately ten (10) or more business days for Fuelz to change the account. During this time, Client agrees to cooperate with Fuelz to provide additional information necessary to make the change and to execute a test of the change.
10.5.2 Client Check. Prior to the Due Date specified on Fuelz’s Statement to Client, Client will submit payment by valid check equal to the accumulated balance of the Account for the previous Billing Cycle. The client is required to note the Account number or Statement (BG) number on the check. If the matching Statement Remit To coupon is not included with payment, Fuelz reserves the right to charge an Exception Handling Fee of nine dollars and eighty-five cents ($9.85) for processing the payment. If insufficient funds are available in the account to pay the Account balance at the time a debit is initiated, at Fuelz’s option, Client will not be able to make any further purchases using the Cards until such time that the Client pays the outstanding balance in the Account.
10.5.3 Client Initiated Online Payment. Prior to the Due Date specified on Fuelz’s Statement to Client, Client will submit payment by online method equal to the accumulated balance of the Account for the previous Billing Cycle. If insufficient funds are available on the Account balance at the time a debit is initiated, at Fuelz’s option, Client will not be able to make any further purchases using the Cards until such time that the Client pays the outstanding balance in the Account.
10.5.4 Fuelz Initiated Credit Card Charge. Prior to the Due Date specified on Fuelz’s Statement to Client, Fuelz will initiate a charge to the Client’s credit card on file to pay the accumulated balance of the Account from the previous Billing Cycle. Fuelz may also charge the credit card to pay the amount charged to the Account any time the balance of the Account reaches the Credit Limit. The exact time that the credit card will be charged for the amount due on the Account may vary, depending on the processing cycle. If insufficient funds are available on the credit card to pay the Account balance at the time a debit is initiated, at Fuelz’s option, Client will be prevented from making any further purchases using the Cards until such time that the Client pays the outstanding balance in the Account.
Fuelz may change its billing and charge cycle at any time by providing written notice to Client. Fuelz reserves the right to charge a credit card convenience fee up to three percent (5%) of the payment amount.
10.5.5 Client Initiated Electronic Funds Transfer / Automated Clearinghouse (EFT/ACH) Payment. Prior to the Due Date, Client will initiate a credit to Fuelz’s bank account to pay the accumulated balance of the Client Account from the previous Billing Cycle after notifying and obtaining approval from a Fuelz customer service representative to do so.
10.5.6 Pay by Phone. By the Due Date, Fuelz will initiate, at Client’s request, payment by phone.
10.5.7 On Account. Fuelz may offer Client the ability to pay in advance for its Fuel purchases. The Account will be debited for each purchase. The Account will be replenished by EFT with the amount equal to the prior week’s Statement amount. Residual Account credit balances will be returned upon written request.
Escheatment laws, where applicable, will be followed.
10.6 Applying Payments. Fuelz uses a “balance-forward” based accounting system. Therefore, all payments made by Client to Fuelz will be applied accordingly against the outstanding amount due at the time the payment is received. Subject to applicable law, we will apply and allocate payments and credits among balances owed by Client (whether for purchases, fees, interest, or otherwise) in any order and manner determined by Fuelz in its sole discretion. Client agrees that Fuelz has the unconditional right to exercise this discretion in a way that is most favorable or convenient to Fuelz.
10.7 Late Fee. The Client is responsible for credit extended on the Account. All payments made by Client to Fuelz that are not received by the Due Date are considered late. For each Billing Cycle for which the Amount Due is not received by the Due Date, Client agrees to pay a Late Fee equal to the greater of $75 or 3.99% of the New Balance (defined below). The New Balance is the portion of the Amount Due that is not received by the Due Date plus any additional monies owed as of the close of the next succeeding Billing Cycle. Client shall also reimburse Fuelz for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees.
10.8 Annual Percentage Rate. When Client owes a finance charge on the Account (see Paragraph 10.8 below), the Annual Percentage Rate for purchases is thirty-two percent (32%), which corresponds to the daily periodic rate of 0.0877%, or the maximum amount allowed by applicable law, whichever is less. The
daily periodic rate is the annual percentage rate divided by three hundred sixty-five (365).
10.9 Finance Charges. If a payment is late, then Finance Charges begin to accrue for each purchase as of the date the purchase is added to the Account. If payment in full of the Amount Due is credited to Client’s Account by the applicable Due Date, then Finance Charges will not accrue for purchases from the date
on which payment in full of the Amount Due is credited to Client’s Account, provided the Amount Due of the next Statement attributable to such purchases is paid by the Due Date reflected in the next Statement (Finance Charge due because Client did not pay in full the Amount Due of the next Statement will be reflected in the following Statement). In addition, Finance Charges will not accrue for purchases during a Billing Cycle if the Amount Due shown on the Statement for the prior Billing Cycle is zero ($0) or a credit balance, provided the Amount Due of the next Statement attributable to such purchases is paid by the Due Date reflected in such next Statement (Finance Charge due because Client did not pay in full the Amount Due of the next Statement will be reflected in the following Statement).
10.9.1 Calculations. Periodic Finance Charges are calculated in two steps as follows: First, for each day of the Billing Cycle, Fuelz multiplies the daily balance by the applicable daily periodic rate. Second, for each day of the prior Billing Cycle, Fuelz multiplies the daily balance for purchases made in that Billing Cycle by
the same daily periodic rate. However, Fuelz does not perform the second step if Fuelz receives payment in full of the Amount Due on your previous Statement by the Due Date. For finance charge calculation purposes, the Billing Cycle begins on the day after the Closing Date of the Statement and includes the following Closing Date. The number of days in the Billing Cycle may vary. The daily balance is calculated by taking the beginning balance of the Account every day (which may include unpaid Finance Charges from previous Billing Cycles), adding any new Transactions and any new fees, subtracting any credits or payments posted as of that day, and any other adjustments. Daily Periodic Finance Charges will be rounded to the nearest cent. Unless Fuelz elects to use a later date, a new Transaction is added to the balance as of the Transaction date shown on Client’s billing report. A credit balance is treated as a balance of zero.
10.10 Insufficient Funds. If a check, credit card charge, or EFT/ACH is returned or denied, Fuelz reserves the right to charge the lesser of thirty-five dollars ($35) or the maximum amount allowable by applicable law for each occurrence.
11 Reporting.
11.1 Statements. Fuelz shall furnish Client with a Statement at the end of each Billing Cycle free of charge.
11.1.1 Information. The Statement will include the following information:
11.1.1.1 The Account number and other relevant billing information;
11.1.1.2 The previous unpaid charges;
11.1.1.3 The previous statement balance;
11.1.1.4 Any payments posted to the Account;
11.1.1.5 New charges and adjustments; and
11.1.1.6 Amount Due.
11.2 Standard Fleet Management Report. Fuelz shall produce a standard fleet management report at the end of each Billing Cycle. There is no charge to receive the standard fleet management report via email as described in Section 11.3.
11.2.1 Information. The standard fleet management report will include the following information:
11.2.1.1 The applicable fleet customer number. A single Client’s Account can have multiple fleets (customer numbers) within it;
11.2.1.2 Any rebates, discounts, report delivery, reporting, account charges, Finance Charges, interest, fees, and other charges posted to the Account; and
11.2.1.3 Detail on each Transaction posted to the Client’s Account during the Billing Cycle, including date, Merchant Location, vehicle based on the Card used, employee/driver based on the Driver ID used, product description based on the product type, quantity purchased, total purchase amount, and total applicable taxes.
11.3 Delivery Methods. Fuelz offers several different methods for delivering Statements and the standard fleet management report including, but not limited to, by U.S. mail, by facsimile, by email with a pdf attachment, or by email with an URL link to a pdf Statement.
11.4 Optional Fleet Management Reports. Fuelz produces a variety of optional fleet management reports, including YTD summaries, Maintenance-specific reports, driver-specific reports, and tax reports. Fuelz reserves the right to charge Client a fee of up to fifteen dollars ($15) for delivering each of these optional
reports.
11.5 Tax Exempt Processing & Reporting. Qualified tax exempt Clients may be eligible to purchase Fuel from Fuelz tax-free at the point-of-sale.
11.6 Multiple Report Copies. Fuelz will provide multiple copies of mailed reports upon request.
12 Change In Terms And Conditions.
Fuelz may amend the Terms and Conditions of this Agreement at any time by giving Client written notice by email of such amendment. Guarantor agrees to be bound by any such changes, if written notice is given to Client by email. Any such amendment will go into effect as outlined in the email notice. Unless an amendment expressly states otherwise, such amendment shall be effective as to existing balances as well as future purchases and balances. Client shall be deemed to have accepted such amendments by continued use, after the effective date of the amendment, of any of the Card(s) issued to Client. If Client objects to any amendment of this Agreement, Client’s sole recourse shall be to terminate this Agreement, in accordance with the pertinent terms and conditions. Notwithstanding any of the foregoing provisions of this Section, Fuelz retains the right to change credit limits for the Account or to suspend, cancel, or terminate the Account or any Card without prior written notice and Client and Guarantor acknowledge and agree that Fuelz may take such actions without notice.
13 Events Of Default.
The occurrence of any of the following shall constitute an “Event of Default” hereunder:
13.1.1 Client shall fail to pay any principal, interest, or other amount payable in respect of any Obligation when due;
13.1.2 Client shall fail to observe or perform any other covenant contained in this Agreement;
13.1.3 Any representation or warranty made by Client or Guarantor herein or in the Application proves untrue in any material respect as of the date of the making or furnishing thereof; or
13.1.4 Either Client or Guarantor shall (i) make an assignment for the benefit of its creditors; (ii) admit in writing its inability to pay its debts as they become due; (iii) file a petition under any applicable insolvency, debtor relief or reorganization statute, including without limitation, the United States Bankruptcy Code; (iv) be subject to an involuntary petition under any applicable insolvency, debtor relief, or reorganization statute; (v) appoint or consent to the appointment of any receiver, conservator, liquidating agent, or committee in any insolvency, readjustment of debts, marshaling of assets or liabilities, or similar proceedings of, or relating to Client or Guarantor or any substantial portion of their assets; or (vi) take any corporate action for the purpose of effecting any of the foregoing.
14 Remedies Upon Event Of Default.
Without limiting any other rights or remedies of Fuelz provided for elsewhere in this Agreement, or by applicable law, or in equity, or otherwise, upon or at any time after the occurrence of any Event of Default, Fuelz shall have and may exercise, at its election, from time to time, any and all rights and remedies available at law, in equity, or otherwise, including, without limitation, (i) declaring the entire unpaid balance of the Obligations hereunder or any part thereof immediately due and payable, whereupon it shall be due and payable; and (ii) demanding payment from Guarantor.
15 Dispute Resolution.
15.1 Disputed Transactions. To dispute any Transaction on Client’s Statement, Client must notify Fuelz in writing as set forth below within thirty (30) days of the date of Client’s Statement. Fuelz will promptly investigate the matter and respond to Client within sixty (60) days after receiving written notice. Notice should be sent to: The McPherson Companies, Inc., 5051 Cardinal Street, Trussville, AL 35173, Attention: Fuelz Customer Service. Fuelz shall not be responsible for and Client shall waive any discrepancies or disputes that Client does not report to Fuelz in writing within thirty (30) days after the date of Client’s Statement.
15.2 Disputed Transaction Notices. Client may report any dispute to Fuelz by telephone. However, telephone notice will not preserve Client’s rights or otherwise serve as effective notice under this Agreement. Client must put in writing any dispute regarding a Transaction on Client’s Statement. Client’s letter must include the following information: name; Account number; date of the Statement; dollar amount and identification of the Transaction(s) in question; and any possible explanation of the error.
15.3 Binding Arbitration. The parties agree that they will work in good faith to resolve any disputes arising under this Agreement. If the dispute cannot be resolved by the parties, then a party may, without the other’s consent, elect MANDATORY, BINDING ARBITRATION for any claim, dispute, or controversy between or among such parties relating to an Account, a Card, a Transaction, a prior account, or the relationship of such parties, including without limitation claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision, and no matter what legal theory such claims are based on or what remedy (damages, or injunctive or declaratory relief) such claims seek. The arbitration shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties agree that any claim, dispute or controversy shall be heard by a single arbitrator who will be administratively appointed by the AAA from its National Roster of
Arbitrators. The arbitration shall be governed by the laws of the State of Alabama. To accommodate the right to arbitrate, Client agrees that it will neither assert, nor participate in, a class action or other representative action or proceeding related to this Agreement, the Account, the Cards or any other aspect of Client’s relationship with Fuelz. The party electing binding arbitration shall pay the AAA’s filing fee. All other arbitration-related fees will be borne equally by the parties.
All claims, disputes or controversy must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. Any arbitration hearing that Client attends will be held at a place chosen by the arbitrator in the same city as the U.S. District Court closest to Client’s mailing address as reflected on the Client’s Statement, or at some other place to which the parties agree to in writing. The foregoing does not prohibit either party from seeking injunctive relief without first complying with this Section. Client will reimburse Fuelz for all of its costs and expenses (including attorney’s fees and costs) incurred in connection with enforcing any of Fuelz’s rights under this Agreement.
16 Security, Loss, Theft Or Unauthorized Use Of Card.
16.1 General Security. Each Card can be programmed to only allow Fuel or both Fuel & Maintenance services such as oil changes, vehicle washes, etc. Subject to certain exceptions, each Transaction is typically authorized with the Card number, product code, quantity and driver’s Driver ID across the proprietary Fuelz network to ensure that the purchase is authorized and limited to the product and quantity (e.g. gallons of Fuel or dollars of Maintenance) that have been pre-approved. This system also helps prevent unauthorized Driver IDs and stolen Cards from being used to make purchases. The product and quantity controls are subject to each Merchant Location’s POS Authorization Limitations described in Section 16.8.
16.2 Client’s Responsibility. It is the responsibility of Client to ensure proper security controls are kept in place to protect the Cards and Driver IDs and that only authorized employees or agents of Client use them to make purchases. It is also the Client’s responsibility to lock any inactive, misplaced, or stolen Cards and Driver IDs immediately. Fuelz is not responsible for fraudulent Transactions made on Cards. Client should use the online account application to lock Cards and Driver IDs instantly. Alternatively, the Client can contact Fuelz Customer Service during regular business hours by email with the requested change, in which case Fuelz will make the requested changes within 24 hours and assume responsibility for any unauthorized purchases at that point. All Transactions in which a valid/unlocked Card number was used in conjunction with a valid/active Driver ID will be considered to be authorized Transactions in which Client is fully responsible for payment. It is also the Client’s responsibility to review the standard fleet management reports and optional email exception alerts to identify potential purchasing discrepancies. Client should instruct its Cardholders to keep any record of their Driver ID separate from the Card.
16.3 Lost or Stolen Cards. Client shall report all lost or stolen Cards to Fuelz immediately via phone call or email to Fuelz’s Customer Service department identifying the Card number and such other details concerning the loss or theft of the Cards as are known by Client, in which case Fuelz will make the requested changes within 24 hours and assume responsibility for any unauthorized purchases at that point. Client understands that it is liable for all Transactions made by lost or stolen Cards until 24 hours after the time Fuelz receives Client’s notice of such lost or stolen Cards, and for all unauthorized use of the Account and Cards to the fullest extent permitted by applicable law. Client agrees in any event that if at any time Client has been issued ten (10) or more Card’s at Clients request, then Client waives any and all limitations of liability for unauthorized use. This provision does not apply to misuse of Cards by Cardholders, for which Client is always obligated. Client and Guarantor agree and acknowledge full liability for any losses resulting from any failure to report loss or theft of Card(s) in accordance
with the terms hereof.
16.4 Terminated Drivers. It is the Client’s responsibility to lock a terminated driver’s Driver ID as explained in Section 16.2.
16.5 Miscellaneous Product Purchase Limitations. In addition to the vehicle-related product categories (Fuel, Maintenance supplies, and Maintenance services) a Card can be allowed to purchase non-vehicle related items under the Miscellaneous product category. If a Client does not want to allow non-vehicle related purchases, Client should set each Card’s Miscellaneous product category spending limit to zero dollars ($0). Fuelz assumes no responsibility for any unauthorized Miscellaneous purchases.
16.6 Tax Reporting Limitations. Fuelz calculates applicable taxes for Fuel. Applicable taxes for Maintenance and other non-Fuel purchases are dependent on the information provided to Fuelz by the applicable Merchant Location.
16.7 Merchant Limitations. The personnel (if any) at a Merchant Location are not the agents or employees of Fuelz and Fuelz shall not be responsible for the products or services rendered by any of the Merchants or any other liability or damage which arises from the action or negligence of the personnel of any of the Merchants, their agents or their employees.
16.8 POS Authorization Limitations. Authorization controls are provided as a convenience to the Client and are not guaranteed to prevent unauthorized purchases. Specifically, depending on the particular point-of-sale (POS) equipment and Fuel dispenser controls being used by a particular Merchant Location,
the product type and spending limit may not be enforceable prior to completing the Transaction. In these situations, the Transaction will still be considered to be authorized.
16.9 Claims. All claims for defective Fuel or Maintenance must be made to the Merchant operating the Merchant Location where such Fuel or Maintenance was purchased. Any claim for defective Fuel or Maintenance is waived by Client unless made in writing to Merchant, with a copy to Fuelz, within fifteen (15) days from the date of the purchase of the alleged defective Fuel or Maintenance giving rise to the claim. Fuelz will not accept any claims for defective Miscellaneous.
17 Term and Termination.
17.1 Term. The term of the Account shall be one (1) year from the date the Cards are issued to Client unless either party terminates the Account as provided in this Agreement. Thereafter, Fuelz will automatically renew Client’s Account for additional one (1) year periods unless either Fuelz or Client gives the other party notice of intent not to renew at least thirty (30) days before its scheduled expiration date. At the outset of any such one year renewal period, Fuelz, at its discretion, may issue replacement Cards to Client.
17.2 Termination by Client. Client may terminate Client’s Account and its use of the Cards for any reason by providing thirty (30) days prior written notice of such termination to Fuelz. Client remains obligated to pay for any and all transactions, balances, fees, and other amounts incurred up until thirty (30) days after Fuelz receives written notice of such termination.
17.3 Termination by Fuelz. Fuelz may terminate Client’s Account and its use of the Cards for any reason. Fuelz will notify the Client’s Representative of the
termination date of the Client’s Account and/or Card(s).
18 Change In Ownership.
Client must notify Fuelz immediately in the event of any sale of a majority ownership of its equity, any sale of a majority of its assets, any merger, reorganization or other transaction which results in a change of ownership of Client. Fuelz may terminate the Account in its sole discretion upon any change of ownership.
19 Contacts And Notices.
19.1 Authorized Representative. The “Authorized Representative” listed on the Application is authorized to provide Fuelz with the information necessary to establish Client’s Account records and Cards, including, but not limited to, vehicle, driver and card user related information. Fuelz is authorized to send all Account information and Client’s Cards to the Authorized Representative’s attention.
19.2 Notices. Except as specified otherwise in this Agreement, all notices, requests, demand, or other communications required to be made by Client pursuant to this Agreement shall be in writing and shall be given by mail by first class, certified or registered mail, postage prepaid, or by reputable overnight delivery service (such as FEDEX or UPS) or by personal delivery to Fuelz, at the following address: The McPherson Companies, Inc., 5051 Cardinal Street, Trussville, AL 35173, Attention: Fuelz Customer Service.. A notice will be deemed received by Fuelz on the actual date of receipt. Fuelz may provide any notices, requests, demand, or other communications required to be made pursuant to this Agreement by email to Client’s billing email address maintained in its Account. A notice will be deemed received by Client on the date the email is sent.
20 Maximum Lawful Rate.
In no event shall any Finance Charges or other rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. Client and Fuelz, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it; provided, however, that, anything contained herein to the contrary notwithstanding, if said rate or rates of interest or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Client is and shall be liable only for the payment of such maximum amount as allowed by law, and payment received from Client in
excess of such legal maximum amount, whenever received, shall be applied to reduce the principal balance of the Obligations hereunder to the extent of such excess.
21 Credit Reporting Agencies.
Client and Guarantor authorize Fuelz to report to any commercial credit reporting agency, Client’s or Guarantor’s performance under this Agreement, including but not limited to Dunn & Bradstreet, Experian Business or Equifax Credit Information Services.
22 Limitation of Liability.
FUELZ SHALL HAVE NO LIABILITY FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING CLAIMS FOR LOSS OF PROFITS, WHETHER RESULTING DIRECTLY OR INDIRECTLY TO CLIENT, GUARANTOR, OR THIRD PARTIES, AND WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR RESULT FROM A BREACH OF THIS AGREEMENT. IN THE EVENT A COURT IN A FINAL, NON-APPEALABLE AWARD FINDS FUELZ LIABLE FOR ANY DIRECT DAMAGES, FUELZ’S LIABILITY IN THE AGGREGATE FOR SUCH DIRECT DAMAGES WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT TO FUELZ FOR THE MONTH PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
23 Indemnification.
To the maximum extent allowed by law, Client (the “Indemnitor”) will indemnify and hold harmless Fuelz and its affiliates, directors, officers, employees, and agents (the “In¬demnitees”) from and against any and all third-party claims, losses, damages, suits, fees, judgments, costs, and expenses (collectively referred
to as “Claims”), including attorneys’ fees incurred in responding to such Claims, that the Indemnitees may suffer or incur arising out of or in connection with (a) the Indemnitor’s (or its employees’ or agents’) negligence, willful misconduct, or breach of any representation, warranty or other obligation under this Agreement; or (b) any personal injury (including death), damage to property, or environmental clean-up and related costs, resulting from the Indemnitor’s or its employees’ or agent’s acts or omissions. The Indemnitees will give timely notice of any Claim to the Indemnitor, who will defend the Indemnitees at the Indemnitees’ request.
24 Nondisclosure.
Fuelz may provide to Client access to confidential and proprietary information regarding Fuelz’s business, business plans, pricing and reimbursement policies, and other issues (“Confidential Information.”). Client will keep all Confidential Information in strict confidence and not disclose or use the Confidential Information during the term of this Agreement and for five (5) years thereafter. Client will inform its employees and agents as to the confidential and proprietary nature of the Confidential Information to which they may be exposed and take all necessary actions to ensure that such employees and agents keep such information strictly confidential. Client will return any Confidential Information upon request from Fuelz. Client agrees that any disclosure of Confidential Information would cause irreparable harm for which monetary damages may not be a sufficient remedy, so Fuelz will be entitled to seek all remedies and damages available at law and in equity, including, but not limited to, injunctive relief, without the posting of a bond.
25 Miscellaneous Provisions.
25.1 Governing Law; Waiver of Jury Trial. The parties agree this Agreement will be governed by Alabama law, without regard to its conflicts of laws principles.
THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
25.2 Assignment. Client will not assign, including by operation of law, this Agreement or any right or obligation under this Agreement without the prior written consent of Fuelz. This Agreement, and any and all rights and obligations associated with the Agreement, may be assigned by Fuelz upon notice to Client. All of Fuelz’s rights under this Agreement and subsequent amendments shall also apply to any assignee of this Agreement. This Agreement is binding on the parties to this Agreement and their respective successors and permitted assigns.
25.3 Relationship of Parties. Nothing in this Agreement will be construed to create a joint venture, partnership, employment, or agency relationship between the parties for any purpose.
25.4 Force Majeure. Except for payment obligations, neither party is liable for delays or failures in performance of any obligations under this Agreement due to a cause beyond its reasonable control.
25.5 No Waiver. No delay or omission by either party to exercise any right under this Agreement will impair or be construed as a waiver of such right. A waiver by any party of any breach or obligation will not be construed to be a waiver of any other breach or obligation. The party waiving its rights must sign all waivers. No waiver of any default, expressed or implied, made by either party hereto shall be binding upon the party making such waiver in the event of a subsequent default.
25.6 Severability. If any provision of this Agreement is declared invalid, illegal, or unenforceable, the validity of the remaining provisions will not be affected. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of this Agreement.
25.7 Interpretation. This Agreement will not be presumptively interpreted for or against any party by reason of that party having drafted or negotiated, or failed to draft or negotiate, all or any portion of any provision of this Agreement. The captions and headings included in this Agreement have been inserted for convenience only and may not be used in connection with the interpretation of this Agreement. Each party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties to this Agreement.
ADDENDUM TO CARD PROGRAM TERMS AND CONDITIONS
Fraud Protector Program Terms and Conditions
1 Scope.
These Fraud Protector Terms and Conditions apply only to the Fraud Protector Program (“the Program”) and do not amend or otherwise modify the Terms and Conditions that otherwise apply to your Account or Cards. Capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in the Card Program Terms and Conditions.
2 The Fraud Protector Program.
2.1 The Program provides a waiver of liability for unauthorized Card transactions or Account activity (“Fraud Liability Waiver”) in each case in accordance with terms and conditions set forth herein.
3 Fraud Liability Waiver Guidelines and Limitations.
3.1 Card Fraud.
In the event that a compromise of one or more of your Cards results in an unauthorized transaction or unauthorized Account activity (a “Covered Transaction”), we will waive your liability for up to $2,500 per compromised Card, subject to a waiver cap of $7,500 per Account per year and the other limitations described herein.
3.2 Limitations.
The following transactions are not eligible for Fraud Liability Waiver: (i) foreign transactions, (ii) transactions involving theft or misuse of any kind by any of your employees, (iii) fraudulent transactions resulting from your or your employee’s negligence, and (iv) fraudulent transactions resulting from a security breach of your computer system.
3.3 Your Responsibilities.
To be eligible for the Program benefits, you must be in compliance with the Program Terms and Conditions, including but not limited to the following:
(a) Security Controls. You acknowledge that your obligation to set adequate security controls for limiting Card exposure is set forth in the Card Program Terms and Conditions. We reserve the right to change the security controls on any Card or profile without prior notification or warning to ensure controls are in line with historical usage, and further we reserve the right to remove you from the Program upon ten (10) days’ notice for failure to maintain adequate security controls.
(b) Driver IDs / Terminated Employees. You are responsible for ensuring that only authorized employees have access to the Cards associated with your Account. Transactions by Cards associated with terminated employees or compromised vehicle driver identification are not eligible for a Fraud Liability Waiver. It is your responsibility to either(i) immediately block, using your online Account portal, any Card associated with a terminated employee or compromised driver identification, or (ii) contact Customer Service by telephone at the number of the back of your Card or 1-855-463- 8359 to block any Card associated with a terminated employee or a compromised driver identification.
(c) Blocking Cards/Notification. In the event a Card is reported as lost, stolen, or having incurred fraudulent activity, it is your responsibility to either (i) immediately block (using your online Account portal) any affected Card, or (ii) contact Customer Service by telephone at the number of the back of your card or at 1-855-463-8359 to initiate the block or otherwise make requested changes to your Account.
3.4 No Coverage for Lost or Stolen Cards.
Unauthorized transactions and unauthorized Account activity occurring on lost or stolen cards are not eligible for Fraud Liability Waiver under the Program.
4 Fees.
For the Program, your Account will be charged up to $99 monthly fee. We will notify you by email in advance of any changes to the applicable monthly Account fee.
5 Acceptance of Program Terms and Conditions.
BY ENROLLING IN THE FRAUD PROTECTOR PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UN¬DERSTOOD, AND AGREE TO THESE FRAUD PROTECTOR PROGRAM TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THE DISPUTE RESOLUTION PROCEDURES SET FORTH IN THE CARD PROGRAM TERMS AND CONDITIONS SHALL APPLY IN THE EVENT ANY DISPUTE ARISES IN RELATION TO THIS AGREEMENT.
6 Dispute Submittals.
You acknowledge that your general obligations with respect to the dispute process are set forth in the Card Program Terms and Conditions. In the event you suspect that a Transaction listed on a billing statement is an unauthorized transaction or unauthorized Account activity, you must dispute such Transaction within thirty (30) days of the date of the billing statement. Transactions not timely disputed will not be eligible for waiver under the Program. Should you timely dispute a suspected fraudulent Transaction, we will open a case and inform you whether the dispute is eligible for waiver under the Program. In the course of reviewing such dispute, we may request additional information from you to make our determination. If you fail to timely provide the information requested by us, the related Transaction(s) will be ineligible for waiver under the Program.
7 Account Credit.
When you submit a dispute for waiver of fraud liability, you will receive a credit for Covered Transactions, subject to the limitations set forth above and our investigation.