(1) Article 1.0, Section 1.2 of the MAA is replaced with
the following:
"1.2 "Sublicensed Software" means the computer programs
identified as such in Exhibit A hereto licensed by CFN
and sublicensed to Participant thereunder, whether in
object code, firmware, or any other form; and any updates,
derivative works, modifications, enhancements and extensions
of any of the foregoing received by Participant from time
to time. Such Sublicensed Software shall also include
the computer program(s), and/or object code, firmware,
or any other form; and any updates, derivative works,
modifications, enhancements and extensions thereto, identified
in CFN’s Manual (as defined in Section 3.1), as may be
amended by CFN in its sole discretion from time to time,
approved by CFN for use by Mobile Fueling Sites."
(2) Article 1.0, Section 1.7 of the MAA is replaced with
the following:
"1.7 "Site(s)" means those locations and/or facilities
owned or operated by Participant which are or may be approved
for registration by CFN and which may be or are listed
on location listings, maps and service directories published
by CFN from time to time, at which Other Participants
or its customers may effect Transactions. It also means
those locations and/or facilities owned or operated by
Other Participants, which may be or are listed on
location listings, maps and service directories published
by CFN from time to time, at which Participant, Other
Participants and/or their customers may effect Transactions.
Except as otherwise noted, such term shall also include
Mobile Fueling Sites."
(3) Article 1.0 of the MAA is amended by inserting new
Sections 1.22, 1.23, 1.24, 1.25, 1.26 and 1.27 immediately
following Section 1.21, which new Sections shall read
as follows:
"1.22 "Mobile Fueling Site" means mobile equipment owned
and/or operated by Participant that is or may be approved
for registration by CFN and that is not listed on location
listings, maps and service directories published by CFN,
from which Transactions may be effected by Participant
with its customers or an Other Participant’s customers."
"1.23 "CFN Mobile Fueling Network" means the network
of persons and/or legal entities, including Other Participants
and Participant, who have registered Mobile Fueling Sites
with CFN."
"1.24 "Environmental Laws" means all applicable Laws
relating in whole or in part to the protection of the
environment, occupational or public safety and health."
"1.25 "Hazardous Substances" means (1) any chemical compound,
material, mixture or substance that is now or hereafter
defined, listed, controlled, prohibited, regulated or
otherwise classified pursuant to, any Environmental laws
as "Hazardous substances," hazardous material," hazardous
waste," "extremely hazardous waste," "infectious waste,"
"toxic substance," "toxic pollutant" or any other formulation
intended to define, list, classify, control, prohibit,
or regulate substances by reason of deleterious properties,
such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "EP toxicity,"or similar
properties; (ii) asbestos; and (iii) any petroleum, petroleum
distillates, by-products, crude oil, fractions thereof,
natural gas, natural gas, natural gas liquids, liquified
natural gas, or synthetic gas usable for fuel (or mixtures
of natural gas and such synthetic gas)."
"1.26 "Laws" means all applicable federal, state, municipal,
local, city, and county laws, statutes, regulations, restrictions,
ordinances, licenses, codes, rules, guidelines, by-laws,
orders, rights of accession, directives or other requirements
of any governmental entity, body, agency, department,
regulatory authority or other similar body, or any court
or tribunal or other similar body."
"1.27 "Mobile Fueling Services" means the use by Participant
of a Mobile Fueling Site to effect Transactions by delivering
and dispensing fuel to the customers of Other Participants
at a location designated by the Participant or Other Participant."
(4) Article 4.0, Sections 4.1, 4.2, and 4.3 of the MAA,
respectively, are replaced with the following:
"4.1 Participant agrees to allow customers of Other Participants
access to its automated dispensing equipment at the Participant’s
Sites, and to provide Mobile Fueling Services to customers
of Other Participants."
"4.2 Access Cards and Mobile Fueling Site Access.
(a) Non-Mobile Fueling Sites. To effect the
access referred to in Section 4.1 hereof for non-Mobile
Fueling Sites, CFN may sell to Participant and/or Participant
may issue to its customers, CFN cards. Participant acknowledges
that CFN has sold or will sell CFN cards to Other Participants
and that Other Participants have issued or will issue
such cards to their customers. Participant acknowledges
that it alone bears the collection risk in respect of,
in connection with, and with respect to purchases of Participant’s
products, including all taxes thereon and all CFN fees
and costs related thereto in respect of, with respect
to, in connection to, and associated with the use of CFN
cards issued by Participant to its customers. Participant
acknowledges and agrees that the Encoded Format on the
CFN card is proprietary to CFN and may only be used as
authorized by CFN. Participant’s and Other Participants’
customers may effect Transactions from Participant and/or
Other Participants by inserting the CFN card into the
automated petroleum dispensing equipment or a card reader
and inputting their applicable personal identification
number or providing the CFN card to the Participant or
Other Participant.
(b) Mobile Fueling Sites. To effect the access
referred to in Section 4.1 hereof for Mobile Fueling Sites,
Participant agrees to use only such formats, chips, bar
codes, data strings, and/or other device(s), medium, processes
or procedures authorized by CFN in its sole discretion
for such access. Participant acknowledges that it alone
bears the collection risk in respect of, in connection
with, and with respect to purchases of Participant’s products,
including all taxes thereon and all CFN fees and costs
related thereto in respect of, with respect to, in connection
to, and associated with such access by Participant’ customers.
Participant’s and Other Participants’ customers may effect
Transactions from Participant through the use of such
CFN-approved access formats, chips, bar codes, data strings,
and/or other device(s), medium, processes or procedures."
"4.3 CFN has provided to Participant, on or prior
to the date hereof, its most recent published listing
of Sites. CFN shall provide Participant published revisions
to such listing upon the request of Participant and upon
payment by Participant of the fees then charged by CFN
for such published listing. Within fifteen days hereof,
Participant shall submit to CFN for its approval a list
of Participant’s locations which Participant desires to
be added as Sites. Upon CFN’s approval of any such locations,
such approved locations shall be deemed to be Sites and,
with the exception of Mobile Fueling Sites, shall be added
to CFN’s published listing of Sites. CFN hereby authorizes
Participant to use the Encoded Format on the CFN card
only at Sites authorized by CFN. Participant agrees to
use only such formats, chips, bar codes, data strings,
and/or other device(s), medium, processes or procedures
authorized by CFN in its sole discretion at Mobile Fueling
Sites for the collection and transmission of Transaction
data and information to CFN, and for accessing the Processing
Services and Other Services contemplated by this Agreement,
each as more fully described in the Manual. Within fifteen
(15) days of Participant’s execution of this Amendment
to the Agreement or approval by CFN of a Mobile Fueling
Site submitted for such approval by Participant, whichever
date is later, CFN shall designate Participant as a member
of the CFN’s Mobile Fueling Network in CFN’s literature
or by any other means in CFN’s sole discretion."
(5) Article 7.0, Section 7.2 of the MAA is replaced with
the following:
"7.2 Indemnification and Insurance. Participant
shall protect, defend, indemnify and hold CFN harmless
from and against any and all claims, liens, demands, causes
of action, obligations, damages, costs, expenses and liabilities,
whether criminal, civil or administrative, and whether
meritorious or not, including, but not limited to, attorneys’
fees, costs, whether known or unknown, suspected or unsuspected,
claimed or unclaimed, asserted or unasserted, and whether
in law or in equity, arising directly or indirectly out
of or related in any way to (a) use of or defects in the
System (or any part thereof) or Processing Services occasioned
by the act or failure to act of Participant; (b) use of
the System (or any part thereof) or Processing Services
in combination with other products or equipment not supplied
by CFN to Participant or with modifications made by the
Participant; (c) improper installation, support maintenance
or other acts performed by Participant to the System (or
any part thereof); (d) Participant’s obligations under
this Agreement; (e) Participant’s operation of its business;
and (f) the conditions of Participant’s Sites, including
without limitation, latent defects, patent defects, soils
and groundwater conditions (whether on the Site or not),
compliance with Federal, State, County, and local laws,
rules, regulations, orders, ordinances, including without
limitation, any applicable Environmental laws, rules,
regulations, orders, ordinances, and the past, present,
and future use, release or threatened release of Hazardous
Substances therefrom and/or any actual, proposed or threatened
use, pumping, pouring, spilling, storage, holding, existence,
release, emission, discharge, generation, processing,
abatement, removal, disposition, handling or transportation
of any Hazardous Substance from, under, into, at or on
the Participant’s sites or the surrounding property. Participant
shall maintain in full force during the term of this Agreement
at the Designated Site, Comprehensive General Liability
insurance and products liability insurance policies providing
bodily injury and property damage coverage, in an amount
not less than three million dollars ($3,000,000) per occurrence
and in the aggregate for each Site. In addition, Participant
shall maintain in full force during the term of this Agreement
at the Designated Site, automobile or truck liability
insurance policies for each Mobile Fueling Site providing
bodily injury and property damage coverage, in an amount
not less than three million dollars ($3,000,000) per occurrence
and in the aggregate, and each such insurance policy shall
include a pollution and/or environmental endorsement providing
coverage for environmental remediation and all other claims,
liens, demands, causes of action, obligations, damages
and liabilities, whether criminal, civil or administrative,
occasioned by or relating to Participant’s providing Mobile
Fueling Services pursuant to this Agreement. All insurance
shall be provided by a company with at least a B+ XIII
rating, shall name CFN as an additional insured, and shall
provide for at least 30 days written notice of cancellation.
Participant shall provide CFN with a Certificate of Insurance
and a copy of all policy endorsements naming CFN as an
additional insured for each such insurance policy. Within
fifteen (15) days of CFN’s written request, Participant
shall deliver to CFN a copy of any such insurance policy
requested."
(6) Article 9 of the MAA is replaced with the following:
"9.1 Both parties to this Agreement acknowledge that,
during the term of this Agreement, they may be receiving
information which is proprietary and confidential to the
disclosing party and which the disclosing party wishes
to protect from public dissemination. "Proprietary Information"
as used herein includes all information disclosed at any
time between the parties with respect to the System (or
any part thereof) which constitutes technical information
concerning the operation of, or techniques or processes
used in creating, the System (or any part thereof), and,
to the extent either marked confidential or, if conveyed
verbally, designated confidential and subsequently confirmed
in writing to be confidential, all information regarding
Participant’s Use of the Licensed Products or the System,
information about the intellectual and intangible property
of the parties, information relating to the parties’ respective
business strategies, customers, marketing and sales plans
and strategies, financial information, product development
plans and strategies and similar proprietary information,
and such other information discussed in Section 9.2 of
this Agreement.
9.2 Participant acknowledges that, during the term of
this Agreement, as a member of the CFN Mobile Fueling
Network, Participant will be negotiating with Other Participants
to determine the margin to be applied to mobile fueling
Transactions for Other Participant customers and may be
receiving information which is proprietary and confidential
to the disclosing party, which the disclosing party wishes
to protect from public dissemination. "Proprietary Information"
as used herein includes all information disclosed at any
time between the Participant and Other Participants during
margin negotiations and mobile fueling contract performance
and includes, to the extent either marked confidential
or, if conveyed verbally, designated confidential and
subsequently confirmed in writing to be confidential,
information about the intellectual and intangible property
of the parties thereto, information relating to the parties’
respective business strategies, customer information,
including, but not limited to, customer pricing and contract
information, marketing and sales plans and strategies,
financial information, product development plans and strategies
and similar proprietary information. CFN shall have no
responsibility or liability to Participants, Other Participants,
or their customers as a result of a violation or breach
of this Section 9.2.
9.3 Each party (a) will hold such Proprietary
Information, as applicable and as defined in Sections
9.1 and 9.2 above, in confidence and not use or disclose
it, except as necessary to effect the purposes of this
Agreement, (b) shall use its best efforts to prevent inadvertent
or unauthorized disclosure, publication or dissemination
of any Proprietary Information and (c) agrees to take
appropriate action with its employees to satisfy its obligations
under this Agreement. Nothing in this Agreement shall
be interpreted as placing any obligation of confidence
and non-use on a party with respect to any Proprietary
Information that (i) is in the public domain provided
it came into the public domain through no fault of such
party; or (ii) can be demonstrated to have been independently
developed by such party; or (iii) is rightfully received
by such party from a third party not under an obligation
of confidence to the other party hereto with respect thereto.
Neither party shall be liable for either (a) inadvertent
publication or dissemination of any Proprietary Information
provided that (A) it uses the degree of care in safeguarding
such Proprietary Information as set forth above and (B)
upon disclosure or inadvertent publication or dissemination
of such Proprietary Information it shall endeavor to prevent
any further inadvertent publication or dissemination and
promptly notifies the other party of the events occurring,
or (b) unauthorized publication or dissemination of any
Proprietary Information by persons who are or who have
been in its employ, unless it fails to safeguard such
information with the degree of care as set forth above.
Any copyright notice used in connection with the Licensed
Products shall not be deemed to imply that any part of
the Licensed Products has been published, has been placed
in the public domain, or has removed the obligation to
hold any Proprietary Information contained on or in the
Licensed Products in confidence."
(7) Exhibit B to the MAA is replaced with Exhibit B attached
hereto.
(8) Except as specifically amended by the terms of
this Amendment, the original terms, as previously amended,
of the MAA shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Mobile
Fueling Amendment to the Mutual Access Agreement, amending
the Mutual Access Agreement between
the parties dated as of
, 200 , to be executed by
their undersigned duly authorized
representatives as of the
day of
, 200 .
