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Exhibit 10.70

 

BRANDED PRODUCT SUPPLY AND TRADEMARK LICENSE AGREEMENT

 

[MARATHON BRAND]

 

This BRANDED PRODUCT SUPPLY AND TRADEMARK LICENSE AGREEMENT [MARATHON BRAND] (“Agreement”) is dated July 26, 2010, 2010, and between Marathon Petroleum Company LLC, a Delaware limited liability company having its principal place of business at 539 South Main Street, Findlay, Ohio 45840 (“MPC”) and The Pantry Inc., a Delaware corporation having its principal place of business at 305 Gregson Drive, Cary, NC 27511 (“BUYER”).

 

MPC has assets and resources deployed in a supply, transportation, planning and logistics system to determine and meet demand for refined petroleum products.

 

MPC seeks to advance the objectives of this system in part through jobbers licensed by MPC to sell, and to supply other licensed sellers of, Marathon branded motor vehicle fuels and other products.

 

BUYER desires to participate as a jobber in the MPC system.

 

MPC is willing to license its trademarks and supply MARATHON® branded products to BUYER as such a jobber, upon and subject to the terms and conditions set forth below.

 

MPC and BUYER therefore agree:

 

1.           DEFINITIONS, TERM

 

1.1            Definitions. For purposes of this Agreement, the following terms shall have the indicated meanings:

 

Brand Signage: a sign, point of sale materials, advertising, or promotional materials bearing or including the Marks, logos associated with the Marathon Cards, or logos associated with the STP® trademark owned by The Armor All / STP Products Company ("AASTP"), and canisters, chassis, poles and other equipment associated with the sign.

 

Branded Outlets: the Retail Outlets, the Bulk Plants and other outlets or storage facilities supplied with Products by BUYER and agreed to by MPC.

 

Branded Outlet: one of the Branded Outlets.

 

Bulk Plants: the storage facilities designated as Bulk Plants on Exhibit B attached to, and as amended from time to time as called for under, this Agreement.

 

Distillates: [***].

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

 


 

EFT: electronic funds transfer.

 

Exhibit A Volume: the monthly quantities specified for each of the Products indicated on Exhibit A , attached to, and as amended from time to time as called for under, this Agreement.

 

Gasoline: [***].

 

Marathon Cards: proprietary and third party credit cards, charge cards, fleet cards, debit cards, prepaid cards and other payment devices issued, endorsed or sponsored from time to time by MPC. On the date of this Agreement, the Marathon Cards are the Marathon, Marathon Premier, Marathon Platinum MasterCard, Marathon Fleet, Marathon Cash Card, and SuperFleet cards.

 

Marks: trademarks, services marks, trade names, trade dress, brand names, grade designations, logos, insignia, canopy striping and other color schemes and design schemes used by MPC in the advertising and marketing of petroleum products, now and as developed, adopted or acquired in the future.

 

Maximum Volume: [***] of the Exhibit A Volume of Gasoline.

 

Minimum Volume: [***] of the Exhibit A Volume of Gasoline.

 

Party: MPC or BUYER, as applicable. Together, MPC and BUYER are sometimes referred to as Parties.

 

PMPA: The Petroleum Marketing Practices Act, 15 U.S.C. Sections 2801, et seq.

 

Products: [***].

 

Product: one of the Products.

 

Ratable Lifting:   The purchase of Products by BUYER, directly from MPC, [***], with such frequency as will satisfy the Requirements of the Branded Outlets throughout an entire month; except that the purchase by BUYER, on any day of a month, of a volume of Gasoline in excess of [***] of that number of gallons determined by dividing the month’s Exhibit A Volume by the number of days in the month is not the purchase of Gasoline by Ratable Lifting, provided however, in the event of supply disruption for which MPC allocates a plan, formula or method to equitably reduce demand for Products, equitably allocate supply of Products among [***] and [***] will, [***] to the [***] above in the [***].

 

Requirements: the quantity of Products that satisfies the sales expectations of MPC and BUYER for a Branded Outlet (1) on execution of this Agreement; and (2) when Exhibit A

 

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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is amended to add to, or delete one or more Branded Outlets from, Exhibit B, or otherwise to provide for the consuming public’s demand for Products at one or more Branded Outlets.

 

Retail Outlets: the retail motor fuel outlets listed on Exhibit “B”, attached to, and as amended from time to time as called for under, this Agreement.

 

SDN List: the Specially Designated Nationals and Blocked Persons List, 31 Code of Federal Regulations, Part 500, Chapter V, Appendix A.

 

Sublicensee: any person or entity sublicensed by BUYER to utilize the Marks in connection with the sale of Products supplied by BUYER.

 

1.2            Term. This Agreement will be effective as to each Party upon execution by both Parties, with respect to the period commencing on July 1, 2010 and ending on June 30, 2013, unless terminated earlier by a Party as provided for in this Agreement. At such time (but not later than [***]) that MPC offers BUYER a proposed agreement renewing the franchise relationship within he meaning of PMPA, commencing July 1, 2013, BUYER shall have the opportunity to accept such proposed renewal agreement or to renew this Agreement for the period of [***], commencing July 1, 2013 and ending on [***], unless terminated earlier by a Party as provided for in this Agreement. Such election to renew this Agreement commencing July 1, 2013 must be made, if at all, by delivery of written notice to MPC on or before [***]. Provided that BUYER elected to renew this Agreement for the period commencing July 1, 2013 and ending on [***] (and thereby rejecting the separate agreement offered by MPC commencing July 1, 2013), at such time (but not later than [***]) that MPC offers BUYER a proposed agreement renewing the franchise relationship within he meaning of PMPA, commencing [***], BUYER shall have he opportunity to accept such proposed renewal agreement or to renew this Agreement for the period of [***], commencing [***] and ending on December 31, 2017, unless terminated earlier by a Party as provided for in this Agreement. Such election to renew this Agreement commencing [***] must be made, if at all, by delivery of written notice to MPC on or before [***]. The conclusion of each such period of renewal referred to in this Section 1.2 (i.e., June 30, 2013, [***] and December 30, 2017) shall constitute the conclusion of a term, or the expiration date, within the meaning of the PMPA. The period from July 1, 2010 to June 30, 2013, and renewals exercised pursuant to this Section 1.2, if any, shall constitute Term as used in this Agreement.

 

2.           PURCHASE AND DELIVERY OF PRODUCTS

 

2.1            Purchase and Sale. MPC will supply to BUYER, and BUYER will purchase from MPC, the Requirements of each Branded Outlet during the Term. In furtherance and not limitation of the foregoing, BUYER agrees [***] to purchase Products by Ratable Lifting each month of the Term.

 

2.2            Volume Limitation.                                            If MPC determines, in good faith, that BUYER is not purchasing a Product by Ratable Lifting in a month, MPC may, but is not obligated to, [***]. MPC will utilize its

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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terminal reporting systems to implement limitations on BUYER’s purchases of the Product in the month. If, however, MPC’s terminal reporting systems are not available, or if MPC determines that its terminal reporting systems have failed or are unable to implement a limitation on BUYER’s purchases of the Product, in the month, MPC will notify BUYER of the unavailability, failure or inability. BUYER agrees that, upon receipt of MPC’s notice in any month, [***].

 

2.3            Minimum Purchase Obligation. Section 2.1 notwithstanding, Buyer agrees to purchase from MPC, in each month during the Term, not less than the Minimum Volume. If BUYER fails to purchase the Minimum Volume in (a) [***]; or (b) [***]; then in addition to [***] which may be   [***], but is not obligated to, [***] in each [***] to [***], as applicable, [***]. Exhibit A will be deemed to be amended, and MPC will issue a revised Exhibit A, to reflect such reduction. BUYER’s purchase of the Minimum Volume in any month or period of months does not constitute fulfillment of BUYER’s purchase obligations under any Improvement Agreement, Marketer’s Agreement, Image Agreement, Master Agreement, Conversion Agreement, Branding Agreement, or similar agreement between the Parties, however denominated, and whenever executed by them.

 

2.4            Maximum Purchase Volume. Section 2.1 notwithstanding, MPC may, but is not obligated to, sell more than the Maximum Volume to BUYER in any month. BUYER agrees that it will not purchase more than the Maximum Volume in any month without the prior written agreement of MPC, provided that MPC has provided BUYER with [***] of Products in the month.

 

2.5            Amending Exhibits.

 

(a)           BUYER and MPC agree that they will periodically, but no less frequently than [***] in each 12 month period commencing on [***] during the Term, review Exhibits A and B to consider (1) the addition or deletion of Branded Outlets from Exhibit B, (2) change in Requirements at one or more existing Branded Outlet, and (3) any resultant recalculation of the Exhibit A Volume. Exhibits A and B will be amended according to the Parties agreement on one or more of these factors. The Exhibit A Volume will be increased by [***]. The Exhibit A Volume will be decreased by [***]. Any increases and decreases in the Exhibit A Volume associated with the addition or deletion of a Branded Outlet will be effective as of [***], or the removal and return, as applicable, of the Marks and any MPC-owned equipment, [***].

 

(b)           Exhibits A and B may be amended in electronic form via electronic communication expressing the acceptance of the amended Exhibits by MPC and BUYER.

 

(c)           No amendment of Exhibit A or B pursuant to this Section 2.5 will alter or relieve the Parties respective obligations under any Improvement Agreement, Marketer’s Agreement, Image Agreement, Master Agreement, Conversion Agreement, Branding Agreement, or other agreement between them.

 

(d)           Exhibits A and B will be amended to add an outlet or storage facility that is, at the time, the subject of another agreement for the supply of Products to which MPC is a party if, but only if:

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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(1)   MPC determines, in its reasonable judgment, that amending Exhibits A and B to add the outlet or storage facility will not result in the breach of, or actionable interference with, any contractual relationship between the operator of the outlet or storage facility and the supplier of Products to the outlet or storage facility; and

 

(2)   BUYER assumes the obligations of the other supplier under any

 

Improvement Agreement, Marketer’s Agreement, Image Agreement, Master Agreement, Conversion Agreement, Branding Agreement, or other agreement with MPC relating to the outlet or storage facility.

 

(e)           Exhibit A will be amended to add or remove any light products terminals designated by MPC in its commercially reasonable discretion, which designation is subject to change on a [***] from time to time, provided that any modification is made in writing on or before [***]; provided however, that the Exhibit A to this Agreement shall be [***], in accordance with the Master Conversion Agreement between the Parties with a term commencing July 1, 2010.

 

2.6            Products Characteristics. Products to be sold and delivered hereunder shall be of the kinds, grades, octanes, brands and quality generally sold by MPC at the time and place of delivery to BUYER. BUYER will not supply or sell Gasoline having octane levels different than the octane levels MPC is at that time offering without the prior written consent of MPC. [***] the right [***] from time to time, and to [***].

 

2.7            Purchase and Sale of Motor Oils, Lubricants. BUYER agrees to purchase and offer a representative stock of Marathon branded motor oils and lubricants for sale at all Branded Outlets operated by BUYER, and will use best efforts to cause a representative stock of Marathon branded motor oils and lubricants to be offered for sale at Branded Outlets operated by Sublicensees.

 

3.           COMMERCIAL TERMS

 

3.1            Price.

 

(a)           Subject to change or substitution as provided below, BUYER agrees to pay the following prices for the Products sold hereunder:

 

(1)   for Gasolines and Distillates: [***]; and

 

(2)   for motor oils, lubricants, industrial oils, antifreeze, and related merchandise: MPC’s branded jobber automotive oil, lubricant and merchandise [***].

 

The stated prices are [***].  [***].

 

(b)           MPC may [***], as a separate line item on its invoices for some or all Products purchased and sold hereunder, [***].

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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(c)           [***] reserves the right to [***] reserves the right to [***].

 

3.2            Measurement. BUYER shall be invoiced for the actual number of U. S. gallons of Products delivered to BUYER by MPC, with or without correction for temperature in accordance with standards of the American Society for Testing and Materials, at MPC’s option; provided, however, that upon request of BUYER by thirty (30) days advance written notice [***], in any period of twelve (12) consecutive months, MPC will change the method of measurement of invoiced Products with respect to temperature correction (net or gross gallons) in accordance with BUYER’s request. The foregoing notwithstanding, in any jurisdiction in which applicable law dictates the method of measurement of Products delivered, such method shall be used.

 

3.3            Payment.

 

(a)   BUYER agrees to pay for all Products and other goods and merchandise sold hereunder [***].  [***].

 

(b)   If BUYER fails to make timely payment of any amount due and owing to MPC under this Agreement, MPC may:

 

(1)           impose a late payment charge not to exceed the maximum amount allowed by law;

 

(2)           immediately setoff any amounts owed by BUYER to MPC or its subsidiaries against amounts owed by MPC or its subsidiaries to BUYER under this or any other agreement between the Parties, or between BUYER and a subsidiary of MPC; or

 

(3)           treat such failure as a failure by BUYER to comply with a reasonable and materially significant provision of this Agreement, entitling MPC to terminate this Agreement and the relationship between MPC and BUYER.

 

PAYMENTS TENDERED IN FULL SETTLEMENT OF A DISPUTED AMOUNT MUST BE SENT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO: COMMERCIAL CREDIT MANAGER, MARATHON PETROLEUM COMPANY LLC, 539 SOUTH MAIN STREET, FINDLAY, OHIO 45840.

 

(c)           If MPC decides, in its reasonable discretion, that the creditworthiness of BUYER is at any time unsatisfactory, due to the failure to make a payment when due or otherwise, MPC shall have the right to require assurances of BUYERs ability to perform its obligations under this Agreement including, but not limited to, any or all of the following, until BUYER’s creditworthiness becomes satisfactory in MPC’s reasonable discretion:

 

(1)   MPC may require payment in cash in advance of each purchase of Products;

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

 

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(2)   MPC may discontinue further sales or shipments of Product until all payments due have been received; or

 

(3)   MPC may withhold payment for credit card sale transaction receipts due to BUYER under Section 6.4(c).

 

(d)           Nothing in this Section shall operate or be construed as the waiver by MPC of any legal or equitable remedy to which MPC is entitled as a result of BUYER’s failure to pay any amount when due to MPC. No failure on the part of MPC to exercise any of its rights or remedies upon BUYER’s failure to make timely payment of any amount due and owing to MPC shall be construed as a waiver of those rights in the event of any subsequent failure.

 

3.4            Delivery.

 

(a)           MPC shall not be required or obligated to make any delivery outside of its usual business hours or in any quantity which would exceed maximum load weights permitted by law. Except as set forth in Section 3.4(b), deliveries of Products shall be made as follows:

 

(1)   all Gasoline and Distillates: [***] as amended from time to time;

 

(2)   motor oils, lubricants, industrial oils, antifreeze, and other miscellaneous related merchandise: [***].

 

Title to, and risk of loss, of all Gasoline and Distillates delivered at MPC’s terminal(s) shall pass from MPC to BUYER [***]. Title to and risk of loss of Products other than Gasoline and Distillates shall pass from MPC to BUYER [***].

 

(b)           Deliveries of all Gasoline and Distillates delivered by MPC to BUYER, directly or through MPC’s hired common carrier shall be made, and title to and risk of loss of such Products shall pass from MPC to BUYER, [***]. Transportation arranged for BUYER by MPC shall be at [***].

 

(c)           MPC shall have no obligation to deliver Products to BUYER at any terminal [***].

 

3.5            Warranty. MPC warrants good title to all Products supplied hereunder at the time of delivery to BUYER, and that each Product supplied hereunder shall comply with all applicable federal, state and local rules and regulations in effect at the time and place title thereto passes to BUYER. MPC DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE PERFORMANCE OR QUALITY OF PRODUCTS SUPPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR BUYERS PARTICULAR OR INTENDED PURPOSES OR USAGE.

 

 

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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3.6            Audit Rights. To verify BUYER’s performance under this Agreement and any related agreements or in furtherance of compliance and quality assurance programs instituted and amended by MPC from time to time:

 

(a)   BUYER will cooperate fully and completely with audits and inspections conducted by MPC from time to time. MPC shall have the right to audit records, relevant in MPC’s reasonable discretion to the purposes of the audit, in the possession or control of BUYER, inspect the Branded Outlets, inspect and copy each Branded Outlet’s daily inventory control and reconciliation records, conduct audits of dispensers and meter readings, and obtain and remove samples of Products taken from underground tanks, dispensers or other components of each Branded Outlets motor fuel delivery system.

 

(b)   BUYER will ensure that each Sublicensee cooperates fully and completely with audits and inspections conducted by MPC from time to time. MPC will have the right to enter and inspect the facilities at any Branded Outlet operated by the Sublicensee, sample Products stored in underground tanks or located elsewhere in equipment within the possession or control of the Sublicensee, and inspect the books, records, daily inventory control and reconciliation records, and meter readings of the Sublicensee relating to operation of any Branded Outlet operated by the Sublicensee, wherever such books, records and readings are located.

 

3.7            Electronic Communication.

 

(a)   Buyer agrees that all Branded Outlets operated by BUYER, and by any Sublicensee, will be and remain, during the Term, equipped with hardware and software, including upgrades, as necessary for e-mail capability and access to the Internet, so that MPC may communicate and exchange business transaction and other information via MPC’s eMpowered Marketing portal or other Internet access means established by MPC in replacement thereof.

 

(b)   BUYER consents, effective the date of this Agreement, to the receipt of notices, advertisements, announcements, brochures and other information from MPC via facsimile, telephone, e-mail and other modes of electronic communication.

 

4.           ALLOCATION OF RISK

 

4.1            Supply Shortage.

 

(a)           Any term or provision of this Agreement to the contrary notwithstanding, if MPC anticipates a shortage of Products, crude oil, raw materials or refining capacity, whether its own,

 

or its other regular sources of supply, or in the industry generally, which MPC in its sole discretion determines will require a limitation generally on the type or quantities of Products to be supplied hereunder, or if such a limitation is recommended or imposed by any governmental authority whether or not ultimately held to be valid, [***].

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

 

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(b)           [***].

 

(c)           In any month in which MPC institutes measures pursuant to Section 4.1(a), the Exhibit A Volume will apply only on a pro rata basis to those days of the month in which the allocation is not in effect. The Exhibit A Volume in any month following the month in which such measures cease shall be as provided in this Agreement.

 

4.2            Force Majeure. Each Party shall be excused from its obligations under this Agreement to the extent and for the period of time that the Party is unable to perform because of any cause or condition reasonably beyond its control including, but not limited to, any law or regulation issued by any government or governmental or quasi-governmental agency or any judgment or judicial, executive or administrative order or decree, whether or not ultimately held to be valid; fire; flood; storm; earthquake; war; civil disturbance; labor troubles, including strikes and boycotts; blockade or embargo.

 

4.3            Indemnification. BUYER agrees to protect, indemnify, defend and hold MPC harmless from any and all costs and expenses (including reasonable attorneys fees and litigation expenses), liabilities, losses, claims, causes of action and damages (for injury to or death of any person, or loss or destruction of any property), directly or indirectly resulting or arising from:

 

(a)   the use of any of the Products subsequent to the delivery thereof to BUYER;

 

(b)   the violation of any federal, state or local law, ordinance, rule or regulation by BUYER, its agents, employees, or any Sublicensee, its agents or employees;

 

(c)   the operation of any Branded Outlet, which includes, but is not limited to, any non-fuel operations at any Branded Outlet, by BUYER or a Sublicensee;

 

(d)   the conduct of BUYER’s business or the business of any Sublicensee or other party purchasing Products from BUYER, or supplying Products to or operating any Branded Outlet, which includes, but is not limited to, any non-fuel operations at such Branded Outlet; or

 

(e)   the use or condition of the equipment or premises used for the storage, handling and dispensing of Products including, but not limited to, use or condition of underground storage tank or lines resulting in groundwater or soil contamination or both, at the Branded Outlets.

 

The foregoing notwithstanding, BUYER shall not have any obligation to indemnify MPC for any costs, expenses, liabilities, losses, claims, causes of action or damages arising from the sole negligence of MPC, its agents or employees. BUYER’s obligations under this Section are not negated in the event its insurance carrier or carriers provide or deny coverage to either BUYER or MPC. BUYER’s obligations under this Section shall extend to MPC’s affiliates, subsidiaries, parent companies, agents, officers, directors, employees, predecessors and successors.

 

 

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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4.4            Insurance. Without limiting in any way BUYER’s obligations and liabilities under this Agreement, BUYER shall procure and maintain at its expense, for the duration of the Term, the following insurance policies:

 

(a)           Workers Compensation and Employer’s Liability covering the employees of BUYER for all compensation and other benefits required of BUYER by the Worker’s Compensation law or other statutory insurance laws in the state having jurisdiction over such employees and the location of their employment with BUYER. Employers Liability Insurance shall have limits of [***] per occurrence. The Workers’ Compensation and Employer’s Liability policies shall provide that all rights of subrogation against MPC and its affiliates are waived when permitted by law.

 

(b)   General Liability Insurance, including contractual liability, XCU (explosion, collapse and underground) hazards, premises and completed operations, and products liability, to cover liability for bodily injury and property damage, with a combined single limit of [***].

 

(c)   Insurance for BUYER’s garagekeepers legal ability for property under BUYER’s care, custody and control, where BUYER operates repair and lubrication bays at Branded Outlets, including coverage for fire, theft, or collision of automobiles, and including vandalism and malicious mischief with such insurance having limits of [***]; and

 

(d)   Automobile Liability Insurance covering bodily injury including death, and property damage for the operation of owned, hired, or otherwise operated non-owned automotive equipment used in performance of the business of BUYER, with a single limit of [***].

 

BUYER’s insurance under Sections 4.4(b), (c), and (d) shall be endorsed to include MPC as an additional insured with respect to liability arising out of BUYER’s operations or any premises owned or leased by BUYER. BUYER shall furnish MPC with certificates of insurance which document that all coverages and endorsements required by this Section 4.4 have been obtained. Renewal certificates shall be obtained by BUYER as and when necessary, and copies thereof shall be forwarded to MPC as soon as same are available and in any event prior to the expiration of the policy so renewed. These certificates shall provide that the insurer shall give thirty (30) days written notice to MPC prior to change or cancellation of any policy. In no event shall MPC’s acceptance of an insurance certificate that does not comply with this Section 4.4 constitute a waiver of any requirement of this Section 4.4.

 

5.           USING, PROTECTING THE MARKS

 

5.1            Grant of License.

 

(a)   Upon and subject to the terms and conditions of this Agreement, MPC grants to BUYER the non-exclusive and limited right to use the Marks in connection with the advertising, distribution, and resale of Products at the Branded Outlets owned, operated or supplied by

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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BUYER, while this Agreement remains in effect. BUYER will use the Marks in strict accordance with this Agreement.

 

(b)   Upon and subject to the terms and conditions of this Agreement generally and, specifically, the following, MPC consents to BUYER’s sublicense of the Marks to Sublicensees for use, in strict accordance with this Agreement, in connection with the advertising and resale of Products at Branded Outlets operated by Sublicensees, while this Agreement remains in effect:

 

(1)   BUYER represents that each Sublicensee as of the date of this Agreement has been identified and disclosed to MPC. BUYER agrees to disclose to MPC, and obtain MPC’s prior approval of, any other party to whom BUYER desires to sublicense the Marks during the Term.

 

(2)   MPC has the right, and not the obligation, to approve the sublicense of the Marks to any Sublicensee. MPC will not unreasonably withhold its approval, but BUYER agrees that in making its decision to approve a Sublicensee, MPC may consider any and all factors relevant to the protection of MPC’s rights to, and preservation of the brand value of, the Marks including, but not limited to:

 

(a)   the location, appearance, operations, volumes, canopies,

 

dispensers, credit card readers and other improvements, facilities or equipment of any retail location(s) that will become Branded Outlets;

 

(b)   MPC s then-current mage and identification standards;

 

(c)   MPC s marketing strategies and development plans; and

 

(d)   Geographic density.

 

BUYER agrees not to enter into any agreement, relationship or arrangement for the supply of Products to, or the use of the Marks by, any third party until MPC has approved the third party as a Sublicensee.

 

(c)   MPC’s approval notwithstanding, Exhibit B shall not list, add, or be amended with

 

respect to add any Branded Outlet of any Sublicensee unless BUYER and the Sublicensee have executed an agreement in the form set forth at Exhibit C without modification alteration, or amendment, and BUYER has provided a duplicate original of the agreement to MPC. At the time of execution of such agreement, BUYER shall deliver to the Sublicensee copies of MPC’s then-current Credit Card Handbook, MPC’s then current mage and identification standards, and MPC’s then current appearance and customer service objectives and expectations for Marathon branded outlets. If the Sublicensee will use the STP® mark and related logos, BUYER shall also deliver to the Sublicensee a copy of the then-current STP® Program rules attached as Exhibit D to this Agreement and incorporated herein by reference (STP® Program Rules) BUYER may

 

deliver the above-referenced information to Sublicensee by referring Sublicensee to an appropriate web site where the above-referenced information has been posted by MPC.

 

5.2            Rights and Benefits Derivative.   BUYER acknowledges that all of its rights to display and use the Marks are derived from this Agreement, and that BUYER’s use and the use by Sublicensees of the Marks shall inure fully to the benefit of MPC, Marathon Oil Company, as the case may be. BUYER acknowledges that the Marks are a valuable and important property right of MPC and BUYER agrees to refrain, and to cause the Sublicensees to refrain from any action to infringe upon or dilute MPC s rights to the Marks.

 

 

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5.3            Limitations on Scope of License.   No right to use any variant of the Marks is granted under this Agreement. BUYER shall not use any of the Marks as part of BUYER’s company name, or the name of any subsidiary of BUYER now existing or acquired later. MPC has the exclusive right to determine which Marks will be available to each Branded Outlet, and the manner in which the Marks will be used or displayed at each Branded Outlet.

 

5.4            Image and Identification Standards. While this Agreement remains in effect, BUYER agrees to:

 

(a)   use, and to cause the Sublicensees to use, the Marks in strict compliance with this Agreement and the image and identification standards established from time to time by MPC for the Marks. For avoidance of doubt, the image standards in effect on the date of this Agreement are the standards set forth in MPC’s “Image 2000” Manual. BUYER acknowledges that BUYER has received, read, and understands MPC’s Image 2000 Manual. MPC reserves the right to change, from time to time during the Term, all or part of its image and identification standards, effective ten (10) days after written notice of the changes is given to BUYER; provided, however, that such changes shall be applicable to all members of MPC’s jobber class of trade.

 

(b)   cause the Branded Outlets and the Sublicensees to store only Products in Branded Outlet storage tanks and receptacles, dispense only Products from Branded Outlet dispensers, refrain from the dilution, adulteration, mixture or blending of Products with any other product or substance, whether supplied by MPC or another party, and otherwise to refrain from the commingling of Products with other petroleum products, whether branded or [***], including but not limited to MPC’s [***] petroleum products. The Parties agree that the intentional adulteration of Products, the intentional misbranding as Products of petroleum products from a source other than MPC, or the intentional misbranding of MPC [***] gasoline as Products at any Branded Outlet constitutes grounds for termination or non-renewal of this Agreement under the PMPA.

 

(c)           take immediate corrective action upon discovery of any Product commingling, adulteration, dilution, mixing, blending, or misbranding, regardless of source, and regardless whether discovered by BUYER, MPC or a Sublicensee.

 

5.5            Buyer Property and Websites.

 

(a)           BUYER may use the Marks, in strict compliance with this Agreement and the identification standards established from time to time by MPC for the Marks, in conjunction with BUYER’s websites, business forms, advertising materials, vehicles and other property related to the advertising, distribution or sale of Products, provided BUYER is clearly identified as a jobber

 

 

_________________

 

[***]  Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.

 

 

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or otherwise as a distributor of Products in connection with such use. MPC has the right to approve any such use of the Marks in advance, and revoke its approval at any time and for any reason.

 

(b)           In connection with transporting and delivering Products to Branded Outlets, BUYER may use a transport, delivery vehicle or tankwagon which does not carry the Marks; provided that, other than the trademark, trade name, logotype, or other identification of BUYER, such vehicle shall not bear the trademark, trade name or other identification of any other gasoline or related products marketer or distributor.

 

5.6            Signs.

 

(a)   MPC will provide to BUYER and the Sublicensees, for use on buildings, dispensers, canopies, valance skirts, and other equipment at Branded Outlets, such Brand Signage and related items bearing the Marks as MPC deems necessary, and on such terms and conditions as MPC may establish from time to time. Brand Signage provided by MPC for a Branded Outlet will be located and displayed at the Branded Outlet in compliance with MPC’s image standards for MARATHON® retail outlets in effect from time to time.

 

(b)   If MPC supplies to BUYER Brand Signage incorporating the STP® mark and/or STP® logo, BUYER’s use of such Brand Signage shall be subject to the STP® Program Rules. Moreover, BUYER agrees and acknowledges that in such case, BUYER’s right to use the STP® mark and/or STP® logo at any specific Branded Outlet (including BUYER’s right to enter into trademark use agreements with Sublicensees governing use of the STP® mark and/or STP® logo) is contingent upon the continuation of MPC’s license to these marks from AASTP with respect to the specific Branded Outlet at issue, and upon termination of such license by AASTP with respect to the specific Branded Outlet at issue, BUYER’s use of such Brand Signage will terminate and be of no force or effect with respect to the specific Branded Outlet at issue.

 

(c)   Unless otherwise agreed in writing by MPC and BUYER, any Brand Signage provided by MPC to BUYER or a Sublicensee at any time shall be and shall remain the property of MPC. BUYER shall not relocate any Brand Signage furnished by MPC from one Branded Outlet to another, or to any other retail location, without MPC s prior written consent.

 

(d)   BUYER shall be responsible for all of the costs and expenses of maintenance and operation of all Brand Signage. BUYER agrees to keep, and cause each Sublicensee to keep, all Brand Signage in good repair and condition at all times.

 

(e)   Prior to the sale, lease or other disposition of a Branded Outlet upon which Brand Signage owned by MPC is located, BUYER will, or will cause the Sublicensee of the Branded Outlet to inform the other party to such transaction of MPC s ownership thereof.

 

5.7            Independent Business Relationship. MPC and BUYER are, and will remain, separate and independent business enterprises. Neither of the Parties shall have the right to direct or control the other Party or the Party’s business operations or the other Party’s employees or agents. BUYER has no authority to act, or employ any person to act, as an agent for or on behalf of MPC. This Agreement is not intended to create, and shall not be construed to create, a relationship of partner or joint venture or an association for profit between the Parties.

 

 

 

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6.           PRESERVING BRAND VALUE

 

6.1            Appearance and Customer Satisfaction. BUYER acknowledges that the appearance of, and customer experience at, every one of MPC’s Branded Outlets reflects on the good will value of the MARATHON® brand to every MPC customer


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