ADDITIONAL TERMS & CONDITIONS TO THE RTS PLUS NETWORK MERCHANT AGREEMENT

Last Updated on 5/31/2016

These Terms and Conditions are attached to and form a part of the RTS Plus Network Merchant Agreement between the parties. The RTS Plus Network Merchant Agreement and these Terms and Conditions are hereinafter referred to together as the “Agreement” and such terms and conditions shall be automatically incorporated into the Agreement as of the date and time it was executed by the parties:

1. Provider hereby acknowledges and agrees that as part of the Incentives RTS does not and will never (i) purchase or sell, take title in any manner, or assume any liability whatsoever relating to the purchase of the fuel and related items (the “Goods”) by RTS Customers from Provider’s locations, (ii) take delivery of, inspect, dispose of, or do anything in relation to the manufacture or delivery of the Goods, (iii) calculate, collect or remit any taxes relating to the purchase of such Goods, (iv) provide any warranties, insurance or liability protections relating to the Goods, and (v) be deemed a lender or have any financial responsibility for payment on any Goods purchased by RTS Customers.
2. During the term of this Agreement and for a period of two (2) years after the termination of this Agreement, it is agreed that Provider shall not: (i) divert or attempt to divert any RTS Customer to another fueling or related program, or (ii) communicate, divulge, or use for the benefit of any party any information or knowledge concerning the business and operations of RTS and the RTS Customers, or any item, of which Provider may be apprised by virtue of its activities under this Agreement unless approved in writing by RTS. The parties acknowledge that a remedy at law for any breach or threatened breach of the provisions of this Section would be inadequate and therefore agree that RTS shall be entitled to seek injunctive relief in case of any such breach or threatened breach.
3. Provider hereby agrees that (i) RTS shall not be liable for any taxes, fees, penalties or other costs associated with each transaction by an RTS Customer, and (ii) RTS’ aggregate liability to Provider and third parties arising out of this Agreement shall never exceed $1,000 during any term or extended term.
4. Provider hereby agrees that WEX may share pricing data with RTS that includes, but shall not be limited to; freight rate, taxes, OPIS rack pricing and retail prices. Cost Plus pricing will be calculated based on cost components supplied by Provider in the RTS Plus Network Merchant Agreement. Pricing will be based on OPIS rack average for the previous business day plus the aforementioned cost components.
5. Except as otherwise provided herein, during the term of this Agreement and for a period of three (3) years from the termination of this Agreement, the party receiving any proprietary or confidential information concerning the business, software, service, products or customers of the other party, (collectively, the "Confidential Information"), will not disclose such Confidential Information and shall exercise the same degree of care to avoid disclosure of such Confidential Information as it employs with respect to its own Confidential Information, but not less than reasonable care. Confidential Information shall not include such information that: (a) is now or hereafter becomes publicly known without violation of this Agreement; (b) was known to the recipient prior to the time of disclosure without obligation to preserve confidentiality and as evidenced by the recipient's written records; (c) was received by the recipient from a third party legally entitled to disclose the information without obligation to preserve confidentiality; (d) was independently developed by the recipient; (e) is authorized to be disclosed by the disclosing party or is required to be disclosed by law in which case the recipient will inform the disclosing party and allow the disclosing party reasonable time to seek a protective order. 
6. In order to protect and prevent disclosures of the Confidential Information of the other party, each party shall not use, reproduce, distribute, disclose, or otherwise disseminate the Confidential Information of the other party except (1) as required for each Party to perform its obligations hereunder; or (2) as preapproved in writing by the party disclosing the Confidential Information.
7. Any Confidential Information shall remain the disclosing party's property unless otherwise provided herein. The Parties acknowledge that a remedy at law for any breach or threatened breach of the provisions of these confidentiality provisions would be inadequate and therefore agree that either party shall be entitled to seek injunctive relief in case of any such breach or threatened breach. Upon termination of this Agreement, the parties shall, as directed by each other, either return or destroy all Confidential Information (in tangible and intangible form). If a party elects to have the other party destroy such information, such party shall provide a certificate to the other certifying that such information has been destroyed and agrees it will not be used.
8. The RTS Customer list may be modified by RTS at any time and for any reason without prior notice to Provider.
9. Each party shall defend, indemnify and hold harmless the other party, its affiliates and their respective shareholders, officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from (i) a breach of any representation, warranty or obligation set forth in this Agreement, and (ii) the acts or omissions of such party’s employees or agents.
10. This Agreement may not be assigned by the parties without the other parties prior written consent.
11. This Agreement is and shall be deemed to be a contract entered into pursuant to the laws of the State of Kansas and shall in all respects be governed, construed, applied and enforced in accordance with the laws of such state without regard to the conflict of laws provisions thereof.
12. RTS and Provider hereby consent to utilize binding arbitration for all claims or controversies arising under this Agreement for which a federal or state court or other dispute-resolving body would otherwise be authorized to grant relief. By signing this Agreement the parties voluntarily and knowingly waive any right they may otherwise have to seek remedies in court or other forums, including the right to a jury trial. The purpose and effect of utilizing binding arbitration is to substitute arbitration as the forum for resolving all disputes between the parties relating to this Agreement. A single neutral arbitrator engaged in the practice of law shall be mutually agreed upon to conduct the arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect as of the date of filing by the party claiming to be aggrieved. The parties agree that any hearings, meetings, or conferences relating the dispute shall take place at a mutually agreed upon location in Kansas City, Kansas, unless otherwise agreed to by the parties. The parties to this Agreement are prohibited from arbitrating claims subject to this Agreement as, or on behalf of, a class. The parties are also prohibited from consolidating claims subject to this Agreement with claims of any other individual or entity, or of joining the claims of any other individual or entity, except upon the express written agreement of all parties. Any judgment on the award rendered by the arbitrator shall be final and binding upon the parties and will be the exclusive remedy for all claims under this Agreement. The final award may be entered in any court having jurisdiction thereof. Each party may be represented by an attorney at their own cost and expense. The prevailing Party will be entitled to recover its reasonable costs and fees (including reasonable attorneys' fees) and neither party, nor the arbitrator, may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the other party.
13. The relationship of the parties shall be that of independent contractors and neither party shall have authority to bind the other party in any manner.