TERMS AND CONDITIONS OF WEIGEL’S FLEET CARD CREDIT PROGRAM
The following terms and conditions (these “Terms and Conditions”) create a binding agreement (the “Agreement”) between Weigel Stores, Inc. and Customer.
The below words have the following meanings:
“Account(s)” means the credit extended to Customer by Weigel’s for the purchase of fuel and other goods and services by Customer at the Locations. An Account may be evidenced by an account number as well as a plastic credit card. An Account may be a Weigel’s Fleet Card Account or a Weigel’s Fleet Card Plus Account.
“Account User” means Customer or any other entity or individual authorized by Customer to use the Account or the Weigel’s Fleet Card associated with the Account.
“Agreement” means these Terms and Conditions.
“Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions are generally authorized to close under applicable laws.
“Credit Application” means the application that Customer signs and submits to Weigel’s to open the Account, together with the financial information that Customer submits to Weigel’s in connection with the application.
“Customer” is the person or business entity who has applied for and been approved for the opening of an Account with Weigel’s.
“Location” and “Locations” shall mean each and every Weigel’s store location in the United States of America.
“Transaction” means the use of the Account to buy fuel, goods and/or services at a Location.
“Unauthorized Transaction” means a Transaction made on the Account by any person or entity other than the Customer or any other authorized Account User.
“Weigel’s” means Weigel Stores, Inc., a Tennessee corporation, and its successors and assigns.
“Weigel’s Fleet Card” means a physical credit card (or credit cards) used by Customer to make charges on its Account at the Locations.
“Weigel’s Fleet Card Account” means an Account that can only be used to purchase fuel products at Locations for business or commercial purposes.
“Weigel’s Fleet Card Plus Account” means an Account that can be used to purchase fuel, goods and/or services at Locations for business or non-business purposes, subject to the limitation that a Weigel’s Fleet Card Plus Account may not be used to purchase lottery tickets or other games of chance, gift cards, or prepaid cards and other cash equivalents.
2. Credit Terms and Account Usage.
- Upon submission of its executed Credit Application to Weigel’s, and at any time during the term of this Agreement, Customer hereby authorizes Weigel’s to check its credit references, credit history, and other business information as deemed necessary by Weigel’s in order to service the Account or manage Customer’s relationship with Weigel’s. Customer acknowledges and agrees that: (i) Weigel’s is not obligated to extend credit to Customer; (ii) the decision as to whether or not credit will be extended to Customer rests within the sole and absolute discretion of Weigel’s; and (iii) Weigel’s may extend credit to Customer only after a complete and accurate application has been completed by Customer, and Customer has provided Weigel’s with any other financial information regarding Customer that Weigel’s may reasonably request in connection with Customer’s application. Customer further agrees that Weigel’s may investigate the financial condition of Customer, its subsidiaries and affiliates, at any time during the term of this Agreement, and Customer will promptly furnish Weigel’s with copies of financial statements and any other financial information requested by Weigel’s during the term of this Agreement. Unless and until Customer reports any errors in the information provided to Weigel’s, Weigel’s shall be entitled to rely on that information for servicing the Account. Customer further agrees that any financial statements submitted to Weigel’s will be prepared in accordance with generally accepted accounting principles from the books and records of Customer. Customer also acknowledges and agrees that any failure to promptly present requested financial information to Weigel’s may result in the suspension or termination of the Account.
- Customer agrees to designate specific employees or other personnel to Weigel’s who are authorized to: (i) provide Weigel’s with the financial information necessary to establish and maintain the Account(s); (ii) communicate with Weigel’s related to the Account(s); and/or (iii) receive information and reports from Weigel’s related to the Account(s). Customer agrees to promptly notify Weigel’s in writing if there are any changes in the designated contact personnel for Customer. Customer further agrees that Weigel’s is authorized to take instruction from any Customer designated contact person with apparent authority to act on Customer’s behalf.
- To the extent permissible under applicable law, and to secure Customer’s obligations under this Agreement, Customer hereby grants to Weigel’s a security interest in Customer’s tangible personal property, including but not limited to, Customer’s vehicles, trailers, inventory, equipment, accounts, deposit accounts, general intangibles and the like. Customer authorizes Weigel’s to file a UCC-1 financing statement (i.e., UCC lien) on and against any of Customer’s personal property assets whenever and wherever the assets are located within the United States of America. Customer also agrees to promptly provide Weigel’s with adequate assurances of performance if Weigel’s becomes concerned over Customer’s ability to perform its obligations under this Agreement. Said assurances of performance may include, but are not limited to: (i) Customer’s delivery of a security deposit to Weigel’s in such amount as may be determined by Weigel’s in its sole and absolute discretion; (ii) a personal guarantee from a thirty party (or parties) that Weigel’s approves in its sole and absolute discretion; or (iii) the delivery of a Letter of Credit from a financial institution to secure Customer’s obligations under this Agreement.
- Customer acknowledges and agrees that Weigel’s has two (2) different types of Accounts or fleet card programs, one of which is restricted to the purchase of fuel only (the Weigel’s Fleet Card Account), and the other of which allows for the purchase of goods and/or services in addition to the purchase of fuel (the Weigel’s Fleet Card Plus Account). Customer further acknowledges and agrees that any and all Transactions on a Weigel’s Fleet Card Account will be carried out only for the purchase of fuel products for business or commercial purposes, and that no Transactions will be made for personal, family or household purposes on a Weigel’s Fleet Card Account. Customer further represents that it already has in place, or it will promptly adopt, internal policies and controls to ensure that its Weigel’s Fleet Card Account is used strictly for business or commercial purposes. Customer further acknowledges and agrees that although a Weigel’s Fleet Card Plus Account may be used to purchase fuel, goods and/or services at Locations, the following purchases are prohibited under a Weigel’s Fleet Card Plus Account: purchases of lottery tickets or other games of chance, gift cards, and prepaid cards or other cash equivalents.
Security Measures; Loss, Theft, or Unauthorized Use of Account.
- Customer shall be responsible for all Transactions made by Customer and its current and former employees, affiliates, subsidiaries, contractors and/or or subcontractors who initiate Transactions or use the Account. Customer is solely responsible for monitoring all activity on the Account, and for notifying Weigel’s immediately of any of Unauthorized Transaction.
- The Account and the corresponding Weigel’s Fleet Card(s) are equipped with a number of security features, and Customer should enable all available card and Account security features provided by Weigel’s in order to protect the Account from unauthorized use. In the event Customer fails to enable the available Account and/or card security features and the Account information or Weigel’s Fleet Card(s) are compromised during any Transaction with Weigel’s, or the Account is used by an unauthorized person in a Transaction with Weigel’s, Customer will be responsible for any and all purchases made under the Account.
- Except for charges on the Account caused by the gross negligence or willful misconduct of Weigel’s, Customer shall be responsible for and liable to Weigel’s for all unauthorized use of and all Unauthorized Transactions on the Account, including but not limited to all charges made on a lost, stolen, or otherwise compromised Weigel’s Fleet Card until immediate notice is given to Weigel’s as provided in Section 3.4 of this Agreement. Any misuse of the Account, as defined by Customer’s internal policies, by an Account User or other employee of Customer does not constitute unauthorized use or an Unauthorized Transaction.
- Customer agrees that it will immediately notify Weigel’s at 865-938-2042 in the event that Customer knows of or suspects the loss, theft or possible unauthorized use of its Weigel’s Fleet Card and/or its Account. Until Weigel’s is notified, Weigel’s shall be entitled to assume that any and all Account usage is authorized by Customer, and Customer will be responsible for the payment of any and all charges on the Account.
- Customer acknowledges and agrees that it will be responsible for the payment of all invoices issued to Customer by Weigel’s in accordance with this Agreement, and payment will be due in full in U.S. Dollars within the pay period set forth on each invoice; provided, however, that if any payment due date falls on a non-Business Day, payment will be due on the next Business Day following the payment due date.
- In the event Customer fails to pay any invoice by the payment due date, Weigel’s shall have the option to suspend the Account and place it on hold until the outstanding balance is paid in full. If the Account is suspended or placed on hold, any reactivation of the Account will be at Weigel’s sole discretion. Weigel’s further reserves the right to alter the terms of this Agreement and/or request additional security if Customer becomes delinquent in the payment of the Account.
- Customer further acknowledges and agrees that in the event it fails to pay any invoice by the payment due date on more than one (1) occasion during the term of this Agreement, Weigel’s shall have the right to immediately terminate Customer’s participation in any discount or rebate programs that may be applicable to the Account, in which event Customer shall forfeit any unredeemed benefits that have accrued to that point under any such discount or rebate programs.
Application of Payments; Set-Off and Prepayments. Customer acknowledges and agrees that payments on the Account will be applied first to unpaid fees, and then to any unpaid balances for Transactions. Customer further agrees that in addition to any other rights now or hereafter granted to Weigel’s under applicable law, Weigel’s may, without notice, set off and apply any and all monies or other indebtedness at any time held by Weigel’s to or for Customer’s credit or account against or on account of any obligation owed to Weigel’s by Customer, regardless of how such obligation arose. Weigel’s agrees that Customer or an Account User may pay the Account balance or any portion of the Account balance at any time prior to its due date without penalty.
Late Charges. Customer agrees that in the event it fails to pay any invoice from Weigel’s by the payment due date, the Account will be considered delinquent, and Customer shall pay Weigel’s a late charge of (a) five percent (5%) of such delinquent payment amount, or (b) any lesser maximum amount permitted under applicable law. Customer further acknowledges and agrees that the late charge will apply to all past due amounts.
Disputed Amounts. In the event Customer disputes any portion of an invoice, Customer must notify Weigel’s regarding the dispute by the payment due date, and Customer must pay the undisputed portion of the invoice in full by the payment due date. The dispute notice from Customer shall contain Customer’s name, the Account number, the specific transactions and total dollar amount of the dispute, as well as a description or explanation of the dispute. If Customer notifies Weigel’s of a dispute with respect to an invoice, Weigel’s and Customer shall work together in good faith and exercise commercially reasonable efforts to resolve the dispute promptly. Notwithstanding the foregoing, all discrepancies or disputes of charges by Customer on the Account must be sent to Weigel’s in writing within thirty (30) days following the invoice date or the charges set forth in the invoice will be final and binding upon Customer.
Default and Remedies.
- Customer and Weigel’s agree that the following events constitute an “Event of Default” by a party under this Agreement which will enable the non-defaulting party to exercise the rights and remedies set forth in Sections 8.2 and 8.3 below: (i) the failure of Customer to pay any invoice submitted to it by Weigel’s in accordance with the terms and conditions of this Agreement; (ii) the failure of either party to perform its obligations under this Agreement (other than Customer’s obligation to pay invoices from Weigel’s), coupled with the defaulting party’s failure to cure such default within ten (10) Business Days following the defaulting party’s receipt of written notice from the other party specifying the default and demanding that it be cured; (iii) if any representation or warranty given by either party in connection with this Agreement proves to have been materially incorrect or misleading when the representation or warranty was made; (iv) the filing by or against either party of any petition in bankruptcy, insolvency, receivership, or reorganization or pursuant to any other debtor relief law or the entry of any order appointing a receiver, custodian, trustee, liquidator, or any other person with similar authority over the assets of either party; (v) the insolvency, dissolution, reorganization, assignment for the benefit of creditors or any other material adverse change in the financial condition of either party; (vi) the entry of any adverse judgment, order or award against either party that has a material adverse impact on the financial condition of either party or a detrimental effect on the ability of either party to perform its obligations; or (vii) the default by Customer under any other contract or agreement with Weigel’s.
- If an Event of Default occurs with respect to Customer during the term of this Agreement, Weigel’s shall be entitled to exercise the following rights and remedies: (i) immediately suspend the Account and place it on hold until the Event of Default is completely cured; (ii) immediately suspend all services and obligations until the Event of Default is completely cured; (iii) not suspend the Account and place it on hold, but shorten the billing cycle and/or change the payment terms with or without notice to Customer; (iv) not suspend the Account and place it on hold, but alter the terms of this Agreement and/or request additional security from Customer to keep the Account open; (v) terminate this Agreement upon written notice to Customer, in which event if the outstanding Account balance will be immediately due and payable in full; and/or (vi) exercise all other rights and remedies available to Weigel’s under applicable law. Customer acknowledges and agrees that all remedies provided for hereunder shall be cumulative and not alternative, and pursuit of one remedy by Weigel’s shall not bar pursuit of any other remedy.
- If an Event of Default occurs with respect to Weigel’s during the term of this Agreement, Customer shall be entitled to exercise any and all rights and remedies available to Customer under applicable law for Weigel’s breach of this Agreement; provided, however, that such rights and remedies shall be subject to the disclaimers and limitations set forth in this Agreement.
Term and Termination. The term of this Agreement shall commence upon the date that Weigel’s accepts the credit application of Customer and activates the Account, and shall continue until terminated by either party. This Agreement may be terminated by either party, with or without cause, upon thirty (30) days written notice to the other party. Termination of this Agreement shall not release either party from the performance of any obligation that accrues prior to the termination date (i.e., Customer will still be obligated to pay for all Transactions that are made on the Account prior to the effective date of the termination).
Representations, Warranties and Covenants.
- Customer represents and warrants to Weigel’s that this Agreement constitutes a legal, valid, binding, and enforceable agreement of Customer, and Customer’s execution and performance of this Agreement: (i) does not constitute a breach of any other agreement to which Customer is a party; (ii) does not constitute a breach of any duty of Customer arising in law or equity; (iii) does not violate any federal or state law, rule or regulation applicable to Customer; and (iv) has been duly approved by all necessary corporate or company action on Customer’s part. Customer further agrees to provide Weigel’s with any evidence of corporate (or other organizational) existence and authorization that Weigel’s may reasonably request during the term of this Agreement.
- Weigel’s represents and warrants to Customer that this Agreement constitutes a legal, valid, binding, and enforceable agreement of Weigel’s, and Weigel’s execution and performance of this Agreement: (i) does not constitute a breach of any other agreement to which Weigel’s is a party; (ii) does not constitute a breach of any duty of Weigel’s arising in law or equity; (iii) does not violate any federal or state law, rule or regulation applicable to Weigel’s; and (iv) has been duly approved by all necessary corporate action on Weigel’s part.
- Customer covenants and agrees to provide Weigel’s with advance written notice of: (i) any change in the principal office address of Customer: (ii) any change in Customer’s legal structure or legal name; (iii) any consolidation, merger or sale of all or substantially all of Customer’s assets; (iv) any change of control (i.e., majority ownership) of Customer; and (iv) any change in the employment status of an employee of Customer who has provided a guaranty of payment with respect to the Account (e.g., if the employee has terminated his or her relationship with Customer). Customer further agrees that Weigel’s shall be entitled to make modifications to the Account and/or the terms of this Agreement with Customer based upon changes referenced in this Section 10.3, with said modifications to be determined by Weigel’s in its sole and absolute discretion.
Indemnification of Weigel’s by Customer. Customer agrees to defend, indemnify and hold Weigel’s and its past and present officers, directors, shareholders, subsidiaries, affiliates, employees, agents, representatives, successors and assigns harmless from any loss, cost, expense (including reasonable attorney’s fees), demand, claim, liability, damages or cause of action of any kind or character, in any manner arising out of or relating to: (i) the breach of any term, covenant or condition of this Agreement by Customer; (ii) the breach of any representation or warranty of Customer set forth in this Agreement; and (iii) any act or omission of Customer, its employees and/or agents at any of the Locations during the term of this Agreement.
Attorneys’ Fees & Costs. Customer agrees pay Weigel’s for any and all attorneys’ fees, expenses, and costs that Weigel’s incurs in the course of enforcing Customer’s obligations under this Agreement.
Limitation of Liability and Warranty Disclaimers.
- Customer acknowledges and agrees that Weigel’s shall not be liable for any loss sustained by Customer resulting from any act, omission or failure to act on the part of Weigel’s, whether with respect to the exercise or enforcement of its rights or remedies under this Agreement, or otherwise, unless the loss is caused by the gross negligence or willful misconduct of Weigel’s. Customer further acknowledges and agrees that Weigel’s liability under this Agreement shall be limited to the actual damages sustained by Customer as a direct result of the gross negligence or willful misconduct of Weigel’s. CUSTOMER FURTHER AGREES THAT IN NO EVENT SHALL WEIGEL’S BE LIABLE TO CUSTOMER FOR LOST PROFITS, DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, AND ANY RIGHT OR CLAIM TO ANY SUCH DAMAGES IS HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED BY CUSTOMER.
- Customer acknowledges and agrees that Weigel’s shall not liable to Customer for any loss, liability or damages sustained by Customer which results from, are related to, or in any way are connected with any fraud control or purchase restriction measures that Weigel’s elects to implement from time to time with respect to the Account, unless such loss, liability or damage is a direct result of Weigel’s gross negligence or willful misconduct in implementing fraud control or purchase restriction measures that Weigel’s has expressly agreed in writing to implement for Customer.
- Except as otherwise required by applicable law, Weigel’s makes no representations or warranties with respect to the goods, products or services that Customer purchases from Weigel’s using the Account, and to the fullest extent permitted by applicable law, Weigel’s disclaims any and all warranties with respect to the goods, products and services purchased by Customer on the Account, including, without limitation, the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.
Waiver of Jury Trial and Class Action Rights. TO THE FULLEST EXTENT PERMITTED BY APPLCABLE LAW, CUSTOMER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM OF ANY KIND OR NATURE RELATED DIRECTLY OR INDIRECTLY TO (A) CUSTOMER’S CREDIT APPLICATION, (B) THIS AGREEMENT AND/OR THE TRANSACTIONS AND OBLIGATIONS ARISING UNDER THIS AGREEMENT, AND (C) ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN), OR ACTIONS OR OMISSIONS OF WEIGEL’S OR CUSTOMER IN CONNECTION WITH THE THIS AGREEMENT OR CUSTOMER’S CREDIT APPLICATION. THIS WAIVER IS MADE KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY FOR SUBSTANTIAL CONSIDERATION AND AS AN INDUCEMENT FOR WEIGEL’S TO ENTER INTO THIS AGREEMENT WITH CUSTOMER. THIS WAIVER IS SEPARATELY GIVEN BY CUSTOMER, AND THIS WAIVER IS INTENDED TO ENCOMPASSS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE. CUSTOMER FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ANY CLAIM BROUGHT BY CUSTOMER AGAINST WEIGEL’S MUST BE BROUGHT IN CUSTOMER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR SIMILAR PROCEEDING, AND CUSTOMER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO MAINTAIN OR PARTICIPATE IN ANY CLASS ACTION OR SIMILAR PROCCEDING AGAINST WEIGEL’S.
Covenants Regarding Confidential Information. All information furnished by one party (the “Disclosing Party”) to the other party (the “Recipient”) in connection with this Agreement shall be kept confidential, except to the extent that the information: (i) is rightfully known by Recipient without restriction at the time of its receipt from the Disclosing Party; (ii) is or becomes publicly available through no fault of Recipient; (iii) is required to be disclosed in any document filed with the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, or any other agency of any government; or (iv) is required by law to be disclosed, provided that notice of the disclosure has been given (when legally permissible) by the party proposing to make such disclosure, which notice, when practicable, shall be given sufficiently in advance of the proposed disclosure to permit the other party to take legal action to prevent the disclosure. Each party agrees that they will use the confidential information of the other party solely for the purpose of performing its obligations under this Agreement, and for no other purpose whatsoever. The parties further agree to ensure that appropriate technical, physical, and organizational measures, commensurate with the sensitivity of the information furnished to each other, are taken against unauthorized or unlawful disclosures, access, acquisition, loss, destruction, alteration, or damage to the information. Customer further agrees that it shall take all necessary steps to ensure that the confidential information of Weigel’s is not disclosed to, or used by any person, firm, or entity, except by Customer’s own employees and agents, and then only to the extent necessary to permit Customer to perform its obligations under this Agreement. Notwithstanding the foregoing provisions of this Section 15, and notwithstanding any other provision of this Agreement, Weigel’s shall be entitled to disclose Customer’s confidential information to its affiliates and third-party servicers in connection with the operation and maintenance of the Weigel’s Fleet Card program, and Customer expressly consents to these disclosures and this use of Customer’s confidential information to facilitate Weigel’s performance of its obligations under this Agreement. Customer further acknowledges and agrees that from time to time, Customer’s information may be shared by and between Weigel’s and other third parties in accordance with normal business practices, including but not limited to the approval or declination of Customer’s credit application, the servicing and/or maintaining of Customer’s Account(s), the exchange of trade credit information, the evaluation of Customer’s transactions and payment experiences, the opening and/or closing of the Account(s), credit decisions made in connection with the Account(s), and the marketing of additional Weigel’s products and services to Customer, unless Customer desires to opt out of the sharing of its information by providing written notice of such intent to Weigel’s.
Entire Agreement. This Agreement, together with Customer’s credit application which is incorporated herein by reference, embodies the entire agreement and understanding between Weigel’s and Customer with respect to the Account, and supersedes all other prior proposals, agreements, understandings and communications, whether oral or written, regarding the Account.
Amendments. CUSTOMER ACKNOWLEDGES AND AGREES THAT This Agreement may be revised at any time by Weigel’s in its sole and absolute discretion, with or without notice to Customer, in accordance with applicable law. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THIS AGREEMENT, AND ANY AMENDMENTS THERETO, CAN BE ACCESSED BY CUSTOMER AT THE FOLLOWING WEB ADDRESS: https://weigels.com/join-our-fleet/terms-and-conditions/
Assignment. Customer shall not assign, purport to assign or otherwise transfer (voluntarily, involuntarily, by operation of law or otherwise) this Agreement or any of Customer’s rights or obligations hereunder, or any interest in this Agreement, without Weigel’s prior written consent, which consent may be granted or withheld for any reason within the sole and absolute discretion of Weigel’s. For purposes of the foregoing, any change of control of Customer (e.g., if Customer is a corporation, any sale, assignment or transfer of the majority of the equity or stock entitled to elect the board of directors of Customer, whether by merger or otherwise) or the sale of all or substantially all of the assets of Customer, in any one or more transactions or events, will be deemed to constitute an assignment of this Agreement by Customer requiring the written consent of Weigel’s. Any purported transfer not having the prior written approval of Weigel’s shall be null and void and shall constitute an Event of Default by Customer hereunder. Weigel’s may assign or otherwise transfer this Agreement to an affiliate, or in connection with the sale of all or substantially all of its assets, or in connection with the sale of all of its stock/equity, or to an entity into which Weigel’s is merged, without Customer’s consent.
Non-Waiver. Failure by Weigel’s to require performance by Customer at any time of any of the provisions of this Agreement, to exercise any option herein provided, or to claim a breach of this Agreement by Customer, will not operate as a waiver or relinquishment of any right of Weigel’s accruing under this Agreement to assert or rely upon the provision, right, or remedy in that or any other instance, nor will it affect any subsequent breach hereof or the effectiveness of any provision hereof, prejudice Weigel’s in any subsequent action, or affect Weigel’s right to enforce each and every provision of this Agreement.
Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be effective upon delivery. Delivery may be in person, by registered or certified mail (return receipt requested, postage prepaid), via reputable overnight courier service, by electronic mail or facsimile transmission (with confirmation of receipt requested). If more than one method of delivery is utilized by the sender, such as delivery of the notice by both electronic mail and nationally-recognized courier service, the notice shall be deemed effective when first delivered. Customer’s address for notices shall be the contact information set forth in Customer’s credit application, and Customer shall be solely responsible for updating its contact information, including its email address, if notices need to be sent to an alternate address in the future. Weigel’s address for notices, including contact information update notices from Customer, shall be as follows:
Weigel Stores, Inc.
Attn: Fleet Card Director
3100 Weigel Lane
Powell, Tennessee 37849
Tel: (865) 938-2042
Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions shall not be affected thereby, and if at any time any one or more of the provisions of this Agreement (or any Section, sub-section or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason, the parties hereto shall use their best efforts to agree upon a replacement for such invalid or unenforceable provision in terms which correspond as closely as possible to the original provision. However, if such replacement is unable to be accomplished then the same will be deemed omitted, and the validity and/or enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Tennessee, without regard to the conflict of law or choice of law provisions thereof. Weigel’s and Customer further expressly agree that jurisdiction and venue for any actions concerning the enforcement, construction or interpretation of this Agreement shall be in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee.
Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement, except for the obligation to pay money, shall be excused to the extent that it is caused by an event or occurrence beyond its reasonable control such as, by way of example and not by way of limitation, acts of God, actions by governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, transportation problems or labor problems, communication line failures; and/or freight embargoes (collectively “force majeure”); provided the party claiming force majeure promptly notifies the other party of the event of force majeure, the anticipated duration of the event of force majeure, and the steps being taken to remedy the failure. Should the event of force majeure continue beyond thirty (30) days, or such shorter time period as may be reasonable under the circumstances, the party not claiming force majeure may terminate this Agreement immediately upon written notice to the party claiming force majeure. Weigel’s and Customer agree that a party’s failure to perform its obligations under this Agreement due to a force majeure event will not be considered breach or Event of Default if the party has exercised commercially reasonable and good faith efforts to: (i) perform its obligations under this Agreement; (ii) avoid an interruption in its performance; and (iii) resume its performance as promptly as possible under the circumstances.
Headings. The headings used in this Agreement are for convenience and for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Relationship of the Parties. The relationship of Weigel’s and Customer under this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between Weigel’s and Customer.