Love’s Travel Stops & Country Stores, Inc. (“Company”), QuikQ, LLC (“QuikQ”) and the party executing this Accountholder Agreement (“Accountholder”) via the Carrier Account and Credit Application, hereby enter into this Accountholder Agreement (“Agreement”) and agree as follows: Company and QuikQ provide their own purchase programs for fuel and other products and services (each a “Program”) as set forth in this Agreement (including the Accountholder Purchase Policy below), and Accountholder requests Company and QuikQ to provide the Program(s) for which Customer has applied or enrolled on or after the Effective Date. Company, QuikQ and/or their service providers provide credit and billing services (the “Services”).
ACCOUNTHOLDER PURCHASE POLICY
Accountholder acknowledges and agrees that (i) it will receive Services from Company and/or its affiliates for purchases made by Accountholder under the Program at retail locations owned or operated by Company and/or its affiliates (“Love’s Transactions”), and (ii) it will receive Services from QuikQ and/or service providers of QuikQ for all Transactions (as herein defined) other than Love’s Transactions (“Non-Love’s Transactions”), pursuant to the terms and conditions set forth herein. Accountholder will select purchase policies during customer setup. Variations from stated policies will not be paid to a merchant by Company or QuikQ, or billed to Accountholder by Company or QuikQ, unless Accountholder approves all variations. Accountholder hereby agrees to all terms herein and to pay all fees set forth on the fee schedule attached hereto as Appendix B and made part of this Agreement. Accountholder represents and covenants that purchases by Accountholder or its Authorized Users under the Program (collectively, “Transactions”) are and will be for business or commercial credit only. Accountholder shall from time to time designate those of its employees and contractors that are authorized to use the Payment Instrument(s) (each, an “Authorized User”), and shall provide Company and QuikQ notice of any addition, change or removal of any Authorized User in writing no less than 3 business days prior to such addition, change or removal. “Payment Instruments” shall include cards, electronic check/money codes, paper checks, draft authorizations, radio frequency identification (RFID)-enabled fuel authorizations, mobile payment methods and any other account access devices approved by Company. Use of the Payment Instrument(s) by Accountholder includes use by the Accountholder, any Authorized Users or anyone under Accountholder’s or any Authorized User’s control, and Accountholder’s (or its Authorized Users’) signature in connection with any Payment Instrument transaction signifies Accountholder’s agreement to the terms and conditions set forth herein. Accountholder is liable for any unauthorized use of the Payment Instrument(s). Company is entitled to offset any amount Company may owe Accountholder or its owners, or any affiliate of Accountholder or its owners, against any claims Company has against Accountholder. QuikQ is entitled to offset any amount QuikQ may owe Accountholder or its owners, or any affiliate of Accountholder or its owners, against any claims QuikQ has against Accountholder. Notice of a disputed transaction shall be provided by Accountholder to Company or QuikQ, as applicable, in writing and shall include customer name, Payment Instrument number, disputed amount, invoice number and date of transaction. If not disputed within 30 days of the transaction date, all charges for Non-Love’s Transactions are considered valid and no adjustments will be made. If not disputed within 90 days of the transaction date, all fuel charges incurred in a Love’s Transaction are considered valid and no adjustments will be made. If not disputed within 180 days of the transaction date, all charges, other than fuel charges, incurred in a Love’s Transaction are considered valid and no adjustments will be made. If any Payment Instrument is used in any country other than the United States, Company will convert the foreign currency into U.S. Dollars at an appropriate rate selected by Company or QuikQ, as applicable, and Accountholder will be billed in US Dollars.
REVIEW OF TRANSACTIONS
Each party acknowledges and agrees that errors and/or delays related to transactions may occur, whether caused by either party or a third party and due to a variety of factors. The parties will cooperate and act diligently to resolve any such errors or delays within a reasonable time period. Customer shall review its transaction information and results regularly and promptly notify Company of any issues. Notice of a disputed transaction shall be provided by Accountholder to Company in writing and shall include customer name, payment instrument number, disputed amount, invoice number and date of transaction. If not disputed within 30 days of the transaction date, all charges are considered valid and no adjustments will be made.
PAYMENT INSTRUMENT CANCELLATION POLICY
Accountholder shall notify QuikQ promptly of any lost, stolen, or compromised account access information, or Payment Instrument(s) or to cancel Payment Instrument(s). Accountholder is responsible for all purchases on lost, stolen, compromised, or cancelled Payment Instrument(s) prior to written notification of cancellation to QuikQ by email at customer@QuikQsupport.com.
Accountholder agrees to have daily transaction and spending limits in place on all Payment Instruments based on spending needs of its drivers. Accountholder must ensure that identification codes (Driver IDs, Pin #’s, and Vehicle IDs) and Payment Instruments are safeguarded and kept separate from one another.
ACCOUNTHOLDER CREDIT / PAYMENTS
Accountholder shall furnish Company and/or QuikQ with current financial information upon request. If Accountholder does not wish to provide current financial information, Accountholder may furnish the Company and/or QuikQ, as applicable, a bank letter of credit or other security that Company and/or QuikQ deems acceptable prior to the issuance of any Payment Instrument(s) to Accountholder. Accountholder shall pay all amounts payable for Transactions, any applicable fees and any and all applicable sales, use or other taxes that are imposed with respect to Accountholder’s use of the Program (other than Company’s and QuikQ’s income taxes). Company will from time to time provide Accountholder with invoices setting forth the amount due from Accountholder for Love’s Transactions for the applicable payment cycle and the due date for such payment. QuikQ will from time to time provide Accountholder with invoices setting forth the amount due from Accountholder for all Non-Love’s Transactions for the applicable payment cycle and the due date for such payment. Late payments will be assessed a late charge of 1 ½% per month, prorated until the date such payment is made in full. In addition, Accountholder shall weekly, or more frequently as may be determined to be necessary by Company or QuikQ, as applicable, to keep the account balance within the line of credit or within payment terms, make payments to the Company or QuikQ. Accountholder agrees to Electronic Funds Transfer as the method of payment to Company and QuikQ. Company and QuikQ are authorized to initiate payment on the applicable billing date. This authorization is to remain in effect for 12 months or until Company and QuikQ are notified, in writing, of cancellation, whichever is later. If funds are found to be insufficient for any payments due Company, Accountholder is subject to a nonsufficient funds (“NSF”) charge of $50.00 for each returned payment and an administration fee of up to 15% of the NSF amount or, if less, the maximum amount allowed by law. If funds are found to be insufficient for any amount due QuikQ, Accountholder is subject to a NSF charge of $50.00 and an administration fee of up to 15% of NSF amount or, if less, the maximum amount allowed by law. If Accountholder’s bank or Accountholder for any reason should fail to timely pay any amount due Company or QuikQ, Accountholder understands and agrees that Company or QuikQ may immediately suspend all Payment Instruments held by Accountholder and draw against the letter of credit or other security held by the Company or QuikQ, as applicable, on behalf of the Accountholder. Any payments received will be applied first to any unpaid charges and fees, then to the past due balance, then to any new purchases. Company may raise or lower Accountholder’s credit line with respect to Love’s Transactions at its sole discretion without notification to Accountholder, and QuikQ may raise or lower Accountholder’s credit line with respect to Non-Love’s Transactions at its sole discretion without notification to Accountholder.
TERM AND TERMINATION
The initial term of the Services and this Agreement shall be for one (1) month commencing on the Effective Date. The term of this Agreement shall automatically renew for successive one (1) month terms unless one party provides written notice of non-renewal to the other party at least ninety (90) days in advance of the end of the then-current term. Upon termination, Accountholder will pay the sums due Company and QuikQ according to the above payment procedure. The paragraphs of this Agreement titled “Indemnification”, “Disclaimers and Limitations”, “Arbitration” and “Miscellaneous Provisions” shall survive any termination of this Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Accountholder represents and warrants that this Agreement constitutes the legal, valid, binding, and enforceable agreement of Accountholder, and its execution and performance of this Agreement: (i) does not constitute a breach of any agreement of Accountholder with any other party, or of any duty arising in law or equity; does not violate any law, rule or regulation applicable to it; (iii) is within Accountholder’s powers; and (iv) has been authorized by all necessary action of Accountholder. Accountholder will comply with all and will not use the Program in violation of any, applicable laws. Accountholder will provide Company and QuikQ with advance written notice of: (x) any change in Accountholder’s legal structure or legal name; (y) any consolidation, merger or sale of a substantial part of Accountholder’s assets; or (z) any change of control of Accountholder.
Accountholder shall indemnify, defend and hold harmless Company, its directors, officers, employees, interest holders, affiliates, service providers and agents against any claims, losses, costs, fines, penalties or damages (including court costs and reasonable attorneys’ fees) (collectively, “Claims”) arising out of or related to Accountholder’s (and Authorized Users’ and their affiliates’, employees’, agents’ or representatives’): (i) negligent or willful misconduct; (ii) breach of this Agreement; (iii) use or misuse of the Program or any Service; or (iv) infringement or misappropriation of any intellectual property of a third party; in each case, except to the extent such Claim is caused by the gross negligence or willful misconduct of Company. Accountholder shall indemnify, defend and hold harmless QuikQ, its directors, officers, employees, interest holders, affiliates, service providers and agents against any Claims arising out of or related to Accountholder’s (and Authorized Users’ and their affiliates’, employees’, agents’ or representatives’): (i) negligent or willful misconduct; (ii) breach of this Agreement; (iii) use or misuse of the Program or any Service; or (iv) infringement or misappropriation of any intellectual property of a third party; in each case, except to the extent such Claim is caused by the gross negligence or willful misconduct of QuikQ.
DISCLAIMERS AND LIMITATIONS
Neither the Company, QuikQ nor their service providers warrant that the Program or any products or Services provided hereunder will be provided uninterrupted or error-free, and Company, QuikQ and each of their service providers hereby disclaim any warranty of any kind to Accountholder, whether with respect to the Program, any products or Services provided by Company, QuikQ or their service providers hereunder or otherwise, including, without limitation, any warranty of title, merchantability, fitness for a particular purpose or non-infringement. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER THE COMPANY, QUIKQ NOR THEIR SERVICE PROVIDERS SHALL BE LIABLE TO THE ACCOUNTHOLDER, OR ITS OWNERS, OR ANY AFFILIATE OF ACCOUNTHOLDER OR ITS OWNERS, WHETHER IN AN ACTION OF CONTRACT OR TORT, FOR ANY LOST PROFITS, LOSS OF USE, LOST BUSINESS OPPORTUNITIES, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH THIS AGREEMENT, USE OF THE PROGRAM OR ANY PRODUCTS OR SERVICES OF COMPANY, QUIKQ OR THEIR SERVICE PROVIDERS PROVIDED HEREUNDER, EACH OF WHICH IS HEREBY PRECLUDED AND WAIVED BY AGREEMENT OF THE PARTIES, EVEN IF THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In the event Accountholder breaches or defaults on any of its obligations under this Agreement, Accountholder irrevocably authorizes Company and QuikQ, at their option, to notify any person or entity providing financing to Accountholder or purchasing any account from Company and/or QuikQ (each, a “Lender/Factor”) of such default and Accountholder hereby irrevocably directs and authorizes any such Lender/Factor to wire directly to Company and/or QuikQ, in such proportion and amounts as agreed to by Company and QuikQ, any funds available to such Lender/Factor as such Lender/Factor funds Accountholder or any funds received by such Lender/Factor as a payment on any accounts purchased by such Lender/Factor from Accountholder, until the balance from Accountholder to Company and/or QuikQ is paid in full. Accountholder is and shall be liable to Company and QuikQ for all costs and expenses incurred by Company and QuikQ in collection and enforcing their rights hereunder, including, but not limited to, late charges and attorney’s fees, if any, incurred by the Company and QuikQ to collect all amounts due on Accountholder’s account and/or foreclosing on its lien and security interest. Accountholder agrees that in the event of Accountholder’s default hereunder, Company and QuikQ may institute suit against the Accountholder in the courts described below and that service of process by certified mail, return receipt requested, postage prepaid and addressed to Accountholder shall be sufficient to confer jurisdiction of said courts, regardless of where Accountholder is geographically located or does business.
Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement or the Program (including, without limitation, disputes, controversies or claims arising out of the breach, termination or validity of this Agreement), whether legal or equitable, shall be finally resolved by arbitration; provided, however, that the foregoing shall not apply with respect to any action or claim by Company or QuikQ to collect from Accountholder any amount due on Accountholder’s account. The arbitrator or arbitration tribunal, as set forth in this paragraph, shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND EXPRESSLY WAIVE THE RIGHT TO ARBITRATE ON ANY TYPE OF CLASS, REPRESENTATIVE OR OTHER MULTI-PARTY BASIS. THE ARBITRATOR OR ARBITRATION TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S OR ONE ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S OR ARBITRATION TRIBUNAL'S POWER TO RULE ON ITS OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR OR ARBITRATION TRIBUNAL HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS PARAGRAPH WILL REMAIN IN FORCE. Either party may institute an arbitration proceeding by filing a claim with JAMS. At the time of filing the claim the filing party shall provide the other with a copy of the filing. Any arbitration shall be undertaken pursuant to the Federal Arbitration Act, where applicable, and the decision of the arbitrator shall be final, binding, and enforceable in any court of competent jurisdiction. Arbitration shall be held in Oklahoma City, Oklahoma, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”), or, upon mutual agreement of the parties, the JAMS Optional Expedited Procedures. There shall be one (1) arbitrator unless the amount in controversy exceeds $1,000,000, in which case either party may elect to require a panel of three (3) arbitrators. The single arbitrator shall be selected by mutual agreement of the parties, and if the parties cannot agree, the arbitrator shall be selected as prescribed the Rules. In the event the amount in controversy permits one party to elect to require a panel of three (3) arbitrators, and a party exercises that right, each party shall select one arbitrator and the two arbitrators shall select an independent third arbitrator to act as the chief arbitrator. The parties shall share equally the fees and expenses of the arbitrator(s) until conclusion of the matter. The arbitrator(s) shall award the prevailing party its costs and attorneys’ fees in connection with the arbitration and shall order that the prevailing party be reimbursed for its share of arbitrator and JAMS fees incurred. The decision of the arbitrator shall be accompanied by a reasoned opinion and is subject to the limitations stated in this Agreement. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. If either party determines the need to obtain emergency or preliminary injunctive relief, that party shall notify JAMS and the other party, in writing, of its intent to seek injunctive relief of the matter. The Emergency Relief Procedures set forth in Rule 2(c) of the Rules shall govern such process.
CHANGES AND NEW TERMS
Company and QuikQ (with each other’s consent) may change the terms of this Agreement, as well as effect new terms, from time to time in its sole discretion (each a “Change”). Company and/or QuikQ will give notice of a Change in writing, or through its website or online portal. Accountholder’s use of the Services after ten (10) days from the date notice of a Change was given constitutes acknowledgment and acceptance of the Change, as of the actual effective date of such Change.
At any time, and from time to time, Company and/or QuikQ may, in their sole discretion, require a personal guaranty or other credit support or security with respect to Accountholder’s obligations under this Agreement. In connection therewith, Company and/or QuikQ may require Accountholder or any other person providing such personal guaranty or other credit support or security to furnish such financial and other information as Company and/or QuikQ may determine to be necessary or desirable.
All financial and other information submitted by Accountholder or any other person in support of this Agreement is true and complete in all respects and may be exchanged among Company, QuikQ and any third party associated with the Program.
Any written notice required under this Agreement must be given in writing to the proper address set forth herein and shall be deemed duly given or made (i) on the day following notice being directed to the receiving party by, either (a) nationally recognized overnight courier service, or (b) solely for notice to Accountholder, email; or (ii) five (5) days after it is sent by registered or certified mail, return receipt requested, postage prepaid. Notice shall be provided to: if to Accountholder: the business address and at the attention of the primary contact set forth in Accountholder’s Carrier Account and Credit Application; if to Company: Attn: Client Management, Love’s Travel Stops & Country Stores, Inc., 10601 N. Pennsylvania Avenue, Oklahoma City, OK 73120; and if to QuikQ: Customer Service, QuikQ Purchase Program, 8650 College Boulevard, Overland Park, KS 66210. A party may amend its designated notice address by giving notice of such amendment to the other party pursuant to the terms of this paragraph or as otherwise allowed by Company and QuikQ.
DATA TRANSFER RELEASE
Accountholder hereby authorizes QuikQ to disclose and transmit to Trans-Alliance, in any form or medium, including, without limitation, electronic transfer, any and all information, data and other content with respect to Accountholder’s transactions contained within QuikQ’s information systems (“Data”). Such Data may include, without limitation, the subject, cost, time and location of Accountholder transactions undertaken and processed through QuikQ’s information systems. QuikQ is authorized to disclose and transmit any and all Data to Trans-Alliance, in any form or medium, including, without limitation, electronic transfer, until QuikQ receives written notice from either the Accountholder or Trans-Alliance that the Data is no longer required, or this Agreement is terminated for any reason.
This Agreement shall be governed by the laws of the State of Tennessee, and it is agreed that, except as otherwise expressly set forth herein, the jurisdiction of any legal action connected with this Agreement shall be exclusively in the state or federal courts located in the State of Tennessee. Notwithstanding the foregoing, each of Company and QuikQ may, at its option, choose to pursue legal action against Accountholder in any state in which Accountholder does business or where jurisdiction may otherwise be proper. Each supplier, service provider, subcontractor or other third party retained or engaged by or with Company or QuikQ in connection with the Program is hereby expressly made a third-party beneficiary of and to all rights and remedies of Company or QuikQ, respectively, hereunder and may enforce the provisions hereof as if it were a party hereto. Accountholder may not assign this Agreement or any interest, payment or rights under this Agreement for any reason, without Company’s and QuikQ’s prior written consent. Company and/or QuikQ may assign this Agreement and its obligations, transfer any right, or delegate any duty of performance under this Agreement to any person without consent or further notice. If any portion of this Agreement is held to be invalid, the remaining portions shall remain in full force and effect. Failure of any party to exercise any of its rights under this Agreement in a particular instance will not be construed as a permanent waiver of those rights. The parties agree voluntarily, intentionally and irrevocably to waive all right to trial by jury in any proceeding arising out of this Agreement, Accountholder’s application for credit, or any related documents. All remedies under this Agreement will be deemed cumulative and not exclusive.
Accountholder agrees to have daily transaction and spending limits in place on all payment instruments based on spending needs of its drivers. Accountholder must ensure that identification codes (Driver IDs, Pin #’s, and Vehicle IDs) and payment instruments are safeguarded and kept separate from one another.
The parties agree that, as a part of the Program and Services provided by Company to the Accountholder and for the benefit of its drivers, the Company may communicate with a participating driver via SMS text messaging so long as the driver consents to receiving SMS text messages. Accountholder therefore agrees to (1) obtain express written consent from a participating driver that Company may communicate with the driver via SMS text messages; (2) provide adequate information to the driver that it may at any time opt-out of the consent to receive SMS text messages (and provide notice of any subsequent opt-out directive to the Company on a timely basis); and (3) obtain from the driver a valid phone number through which QuikQ may communicate the SMS text message(s) to the driver. Accountholder agrees to indemnify QuikQ for any claims raised by a driver based on the Accountholder’s failure to obtain and comply with the information described in items (1) – (3) above in accordance with the terms of the “Indemnification” section of the Accountholder Agreement.