Irving Commercial Card Cardholder Agreement - General Terms and Conditions

Irving Oil Corporation ("Irving") provides access to a network of facilities in the U.S.A. and Canada owned by Irving, its affiliates or such independent third parties as Irving may, in its sole discretion, authorize from time to time (collectively, "Facilities") at which certain of its business customers may purchase or rent certain products and/or services as may be authorized by Irving from time to time, in its sole discretion (collectively, “Products and Services”) by means of Irving Commercial Card credit cards including any renewals or replacements thereof (collectively, "Card(s)"). Each Irving customer named on an existing issued Card and/or every entity or individual named in each Irving Commercial Card Customer Application (collectively, "Customers" and individually, “Customer”) requests, wishes to avail itself of, or continue to avail itself of, the Card and the access provided by the Card. If Irving issues one or more Cards to a Customer, and IN CONSIDERATION of the foregoing and of the covenants and agreements set forth in any existing, new or amended Irving Commercial Card Customer Application (collectively, the "Application"), in these Irving Commercial Card Cardholder Agreement General Terms and Conditions and in schedules and/or documents now or hereafter attached to, or incorporated by reference in, any of the foregoing documents, all as may be amended from time to time, (collectively, this "Agreement"), Irving and Customer hereby covenant and agree as set forth in this Agreement.

1. CARDS Customer acknowledges having received one or more Cards. Customer will immediately notify Irving in writing of any defect or deficiency in such Cards. Customer agrees that all Cards are at all times the property of Irving, are not assignable or transferable by Customer, may be re-acquired by Irving upon termination of this Agreement and (in any event) must be returned to Irving promptly upon request. Customer is responsible for the control and safekeeping of all Cards. Irving may issue, reissue, renew, substitute, replace, activate, deactivate or cancel Cards at such times and in such manner as it deems appropriate in its sole discretion. Irving does not warrant or represent in any manner that Cards are or will remain error-free or that use thereof will be uninterrupted. Customer will cause all its employees, drivers, agents, representatives, independent contractors, distributors, nominees, permittees and other persons, firms, associations, partnerships, corporations, trusts, limited liability companies or other entities for whom Customer is legally responsible or who are permitted by Customer to use the Card (collectively, “Authorized Users”) to observe and abide by all applicable provisions of this Agreement. In the event any Authorized User ceases to be permitted to use the Card, Customer shall immediately recover possession of the Card from such former Authorized User. Retention or use of the Card, including any renewal or replacement from time to time, by Customer or any Authorized Users constitutes acceptance by Customer of all terms and conditions of this Agreement.
2. USE OF CARDS, SERVICES AND FACILITIES Customer will deal directly with the provider of Products and Services with respect to any claim, complaint or adjustment regarding the Products or Services. If any such provider does not otherwise receive payment, and Customer has not made payment to Irving for such purchased Products or Services pursuant to this Agreement, Customer shall remain liable to such provider for such payment. Customer agrees that its access to and use of Facilities are controlled and governed by the owner and/or operator of such Facilities, and by all applicable laws relating to such Facilities. Customer accepts all responsibility for use and any misuse of the Facilities by Customer and Authorized Users. Customer will immediately notify Irving at 1-800-561-2447 of any misplacement, theft, loss or misuse of any Card. Customer shall have no liability for unauthorized use (as defined in 15 U.S.C. §1602(o)) of the Card after notification to Irving at 1-800-561-2447, and liability before such notification of any loss or theft of the Card shall not exceed $50.00. Customer is responsible for all indebtedness resulting from the authorized or unauthorized use of the Card by Authorized Users. Customer will not alter or duplicate, or permit the alteration or duplication of any Card. Customer will not use the Card or permit any Authorized User to use the Card (a) to incur liability in excess of credit limits established by Irving or by Customer from time to time; (b) after the expiry date embossed on the Card, (c) for any personal, family, consumer or household purpose or use; (d) for the purchase, rental or use of any unauthorized or restricted goods, products and/or services; (e) for any illegal or improper purpose; or (f) otherwise than as is expressly permitted under this Agreement. Customer acknowledges and agrees that Irving may refuse authorization for use of the Card in any circumstances where such use is not authorized or would lead to agreed credit limits being exceeded. Notwithstanding the foregoing sentence, and whether or not Irving does refuse such authorization, Customer remains fully liable for, and will pay Irving, all amounts so incurred through such use or misuse of a Card. Notwithstanding anything to the contrary in this Agreement, Irving may, from time to time, vary and amend credit limits, credit terms and conditions, establish or withdraw credit and credit limits respecting any or all transactions at any Facilities, revise or change those Facilities which honor the Card or revise or change authorized Products and Services and/or Facilities, in each case without prior notice to Customer and in Irving’s sole discretion. Customer warrants and represents that it is entering into this Agreement solely to enable Customer and Authorized Users to use the Card and to gain access to Facilities, Products and Services for the purpose of conducting Customers’ business in the ordinary course and not for any personal, family, consumer or household use.
3. RECORDS, CURRENCY AND PRICES Customer agrees to pay, in accordance with this Agreement, for all purchases and rentals of Products and Services made with Customer’s Card, all related fees and charges, applicable currency conversion fees and charges and interest, as shown and billed to Customer on each Billing Invoice, plus all costs of enforcing this Agreement and collecting all amounts due hereunder, including, without limitation, attorney and paralegal fees and disbursements, including, without limitation, such fees and disbursements arising in bankruptcy proceedings. Irving's internal records are binding upon Customer and constitute the sole evidence of each transaction occurring at all Facilities and in respect of Products and Services purchased or rented by Cardholder. All indebtedness incurred through use of the Card in Canadian and U.S. currency will be charged to, and is payable by, Customer, in U.S. currency. Currency conversion for such indebtedness will be based on the applicable daily noon rate for conversion of Canadian dollars to U.S. dollars as posted by the Bank of Canada at midnight preceding the applicable transaction, plus one percent (1%). Customer will pay for Products and Services supplied from all Facilities at prices established by such Facilities from time to time. To the extent Irving may from time to time offer Customer a discount or discounts from prices of Products and Services that Customer might otherwise pay at Irving-owned and/or operated Facilities, such discount or discounts will be subject to Customer meeting minimum volume purchase requirements. Such discount or discounts will vary from time to time in accordance with Customer’s monthly or other periodic Products and Services volumes and Irving’s discount tier structures, as such discounts and tier structures may be revised by Irving from time to time in its sole discretion.
4. TERMS OF PAYMENT Indebtedness incurred through the use of the Card is due and payable in full to Irving (or any party to whom Irving has assigned such indebtedness) on the date of the Billing Invoice on which such indebtedness first appears. If payment of the full amount of such indebtedness is not received by Irving (or any party to whom Irving has assigned such indebtedness) within the number of days required from the date of the Billing Invoice (in accordance with the Customer’s account terms set forth in the Customer’s Application, being either fifteen (15), twenty-one (21) or twenty-five (25) days, as these terms may be approved and/or modified by Irving from time to time in its sole discretion), and otherwise in accordance with this Agreement, Customer shall be in default under this Agreement and (without prejudice to Irving’s other rights and remedies) interest will be charged on the amount due at the lesser of (i) the rate of 1.5% per month (18.0% effective annual rate) [Example: $100 overdue = $1.50 interest charges] or (ii) the highest rate permitted by applicable law, on the then outstanding portions of such indebtedness from the date of the Billing Invoice until payment is received by Irving, (or any party to whom Irving has assigned such indebtedness). A charge may be assessed by Irving (or any party to whom Irving has assigned such indebtedness) to handle each payment returned or reversed by Customer's bank.
5. DEFAULT If Customer breaches or is otherwise in default under this Agreement, or if Customer exceeds or breaches the terms of any security deposit, letter of credit, surety bond, security agreement, guaranty or other security provided to Irving (collectively, "Security"), Irving (or any party to whom Irving has assigned Customer’s indebtedness and/or the Security) may without notice to Customer (without prejudice to any other rights it may have): (a) immediately cease honoring the Card issued to Customer, and cause any or all Facilities to cease honoring or accepting Customer’s Card; and/or (b) foreclose or otherwise realize upon any Security (but without obligation to do so), and/or (c) avail itself of any other remedy available at law or equity.
6. DISCLAIMER Neither Irving nor any of its affiliated or associated companies, successors or assigns is liable for any indirect, incidental or consequential cost, loss or damage (including, without limitation, lost revenue or profit, lost opportunity, lost, destroyed or corrupted data or other economic loss) to (a) any Facility, (b) Customer or its property, (c) any Authorized User or its property, or (d) any other person or property whatsoever, as a result of or arising out of this Agreement or the issuance, use or malfunction or inability to use any Card, Facilities, Products and Services or the failure or refusal by Irving to authorize or to refuse to authorize use of the Card or access any Products and Services or the failure or refusal of any person at any Facility to accept or honor the Card or permit access to any Products or Services. Irving specifically disclaims any and all warranties regarding the Card, Facilities, Products and Services.
7. VARIATION AND TERMINATION OF AGREEMENT Irving reserves the right in its sole discretion, to vary or amend the terms and conditions of this Agreement at any time, on written notice to Customer, and use or continued use of the Card by Customer or any Authorized Users after such notice constitutes acceptance of the terms and conditions of this Agreement, as varied or amended. Irving in its sole discretion reserves the right, at any time, to terminate this Agreement or any rights and privileges hereunder, in whole or in part, at any time; provided, however, that any such termination does not in any way relieve Customer of any of its obligations hereunder. Customer may terminate this Agreement upon returning all Cards and Documentation and upon payment of all indebtedness owing hereunder and satisfaction of all of its other obligations under this Agreement.
8. GENERAL PROVISIONS Customer warrants that all information set out in the Application and any schedules or other material provided to Irving is true and correct in all respects. Customer will immediately notify Irving of any changes with respect to such information. Customer cannot assign or transfer this Agreement, or any rights, benefits or obligations arising herefrom, in whole or in part, and any attempted assignment or delegation is void and of no effect. This Agreement enures to the benefit of and is binding upon Irving, its successors and assigns, and is binding upon Customer, its heirs, administrators, trustees, executors, personal representatives and successors, as the case may be. This Agreement is governed by and is to be construed in accordance with the laws of the State of Maine exclusive of its conflicts of law rules. The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods from this Agreement and any transaction between them related thereto. If any provision of this Agreement is held invalid under applicable law, such invalidity will not affect any other provision of this Agreement; and such invalid provision will be deemed modified to the extent necessary to make it valid and enforceable or, if such provision cannot be so modified, it will be deemed deleted from this Agreement. The parties have agreed that this Agreement, including its schedules, be drafted in the English language. Les parties ont convenu que cette convention, ainsi que les annexes, soit rédigées en anglais. All obligations of Customer are joint and several, to the extent Customer consists of multiple entities or individuals. The terms and conditions herein, including the Application and any schedules now or hereafter attached hereto or incorporated herein by reference consitute the entire agreement between the parties hereto, and may only be modified with the written consent of Irving.