Thunder Carrier Services Prepaid Fuel Card

Terms and Conditions

1. Definitions. The below words have the following meanings:

“Fuel Account(s)” means the account privileges extended to Company by Thunder which may, depending on the details of the Program and Company’s account details, include the ability to access (i) funds advanced on Company’s behalf by Thunder, and (ii) funds deposited with Issuer by Company via Thunder for the purpose of fuel purchases. A Fuel Account may be evidenced by a plastic Card or an account number.

“Account User” means Company or any other entity or individual authorized by Company to use the Fuel Account or Cards. These users may include employee drivers or independent contractors who have been given a Card and access to Company’s Fuel Account.

“Business Day” means any day other than a Saturday, Sunday, or other day on which banking institutions in Utah or California are generally authorized or required by law or executive order to close.

“Card” means a card or other approved payment device provided by Thunder or Issuer that is used to access Company’s Fuel Account.

“Company” means the organization, company or other legal entity that is applying for and/or has been approved for a Fuel Account. For Thunder Factoring clients only: Company is referred to as “Seller” in the Factoring Services Agreement between Company and Thunder.

“Controls” are a set of authorization tools designed to assist Company with managing purchases.

“Approved Digital Wallet” means an account with a Thunder approved digital wallet provider. Also known as e-wallet, a digital wallet is an electronic device, online service, or software program that allows one party to make electronic transactions with another party bartering digital currency units for goods and services. This can include purchasing items on-line with a computer or using a smartphone to purchase something at a store including any money deposited in a digital wallet prior to any transactions or, in other cases, a bank account that is linked to the digital wallet.

“DIN”, “DID” or “PIN” means the identification number associated with an Account User or Card.

“Fees” means any fees applicable to the Program, the Fuel Account or Cards which are set out in the above Application, Thunder’s website (www.thunderfunding.com), these Terms or Exhibit A hereto which may be updated from time to time by Thunder.

“Issuer” means WEX Bank through which the Transactions are processed.

“Online Portal” means an online application provided by Thunder through Issuer’s platform for Company to manage their Fuel Account and Cards, view Transactions and run reports.

“Program” means collectively the Fuel Account along with the ancillary services and benefits provided by Thunder with respect to the Thunder Carrier Services Prepaid Fuel Card program and subject to these Terms.

“Transaction” means the use of a Card or Fuel Account to buy fuel and related goods or services, at accepting merchants. 

“Thunder Fuel Account Support” means Thunder Carrier Services Prepaid Fuel Card Account customer support which can be reached by telephone at 800-240-4140, option 5 or via email at fuelcard@thunderfuning.com.

“Unauthorized Transaction” means a Transaction made on a Card or Fuel Account by any person or entity other than an authorized Account User, subject to these Terms.

2. Fuel Account Administration. 

2.1. Prepaid Fuel Accounts. The terms of this Section 2.1 apply only with respect to funds advanced by Thunder pursuant to the terms of the Factoring Services Agreement between Thunder and Company, if any, and funds deposited into the Fuel Account by Company, as applicable.

2.1.1.   Thunder, in its sole discretion, may establish certain prepaid fuel card Fuel Accounts to qualified applicants. Any prepaid Fuel Accounts created for Company shall be nontransferable and may be canceled, suspended, or revoked by Thunder at any time without prior notice, subject to applicable law. No interest will be paid on funds held in a prepaid account.

2.1.2. When Company uses the prepaid Fuel Account, Issuer will reduce the prepaid balance by the amount of the Transaction and any applicable Fees from Company’s Fuel Account. Company may not, at any time, make a Transaction that will exceed the prepaid balance. If Company does exceed the prepaid balance, Company is fully liable to Thunder for the amount of the Transaction and any applicable Fees. If Thunder or Issuer permits or has previously permitted Company to exceed its prepaid balance, it does not mean that Thunder or Issuer will permit Company to exceed such limit again. All Fees Company owes Thunder will be debited from the prepaid balance. Thunder has the right to offset against the prepaid balance any indebtedness Company owes to Thunder whether as a result of the prepaid fuel card or otherwise. Thunder is not liable for any dishonored Transaction entry or related fee(s) that results which shall be the sole responsibility of Company. If Company authorizes a Transaction and then fails to complete the purchase as planned, the approval may result in a hold for that amount of funds for up to seven (7) Business Days.

2.1.3. Company may instantly transfer funds to the prepaid balance of their Fuel Account(s), at any time from their Approved Digital Wallet.  The maximum number of times Company may load a prepaid Fuel Account per day is six (6). 

2.1.4. Thunder reserves the right to deduct funds from the prepaid amount in order to correct a previous error without having to provide notice to Company.

2.2. Thunder may suspend a Fuel Account or refuse to authorize any Transaction in its sole discretion and specifically in the event that: (i) any balance is past due; and/or (ii) the amount of the Transaction (which may include associated Fees) plus the outstanding balance (including Transactions authorized but not yet posted) exceeds the prepaid balance. Company shall, immediately upon request, pay the excess amount and any associated Fees or the entire balance due on the Fuel Account.

2.3. For Thunder Factoring clients only: Thunder may collect and offset from the prepaid balance of Company’s Fuel Account, without the requirement to provide any notice to Company, any monies owed for any Obligations (as defined in the Factoring Services Agreement) outstanding to Thunder pursuant to the Factoring Services Agreement between Company and Thunder.

2.4. Company shall, via the Online Portal, (i) designate its Account Users, and provide the information necessary to add, remove and maintain Account Users, Cards, and DINs; (ii) provide vehicle, driver and other information; (iii) receive all Fuel Account numbers, Cards or reports; (iv) receive other Fuel Account information; and (v) select additional products and/or services that may be offered. Company may also provide this information by contacting Thunder Fuel Account Support.

2.5. Company will provide prompt notice of any change or removal of any contact or Account User to use or access its Fuel Accounts, Cards or, as applicable, DINs through the Online Portal or by contacting Thunder Fuel Account Support. Company remains liable for any unauthorized use until Thunder or Issuer receives notice of any change in or removal of any Account User or contact and has reasonable time to act on the notice. Thunder is authorized to take instructions from any Account User or contact with apparent authority to act on Company’s behalf. Unless Company reports any errors in a Fuel Account’s information or Cards, Thunder is entitled to rely on that information for servicing the Fuel Account. Company agrees that use of a Card is deemed authorized use of the Fuel Account. 

2.6. Company may not leave a card at a merchant or other unattended location for use by its drivers or Account Users. If Company leaves a card, for any reason, Company does so at its sole risk and is fully liable and agrees to pay for all charges made with that Card. Company agrees to keep DINs confidential and to notify its employees and Account Users to not disclose any DIN. If Account Users or other employees disclose a DIN or write a DIN on a Card, then Company is liable for any fraudulent use that may result even if the disclosure is inadvertent or unintentional.

2.7. Cards will only be used for the purchase of fuel and related products and services for business or commercial purposes and not for personal, family or household purposes. Company shall adopt internal policies and controls to ensure that the Cards are used strictly for business or commercial purposes. Purchases of lottery tickets or other games of chance, gift cards, pre-paid cards or other cash equivalent charges are strictly prohibited. 

2.8. Thunder is not responsible in the event a merchant does not accept or honor a Card as payment. 

3. Controls. Company shall set Controls to be applied to its Fuel Account(s) for the use of the Cards on its Fuel Account and the authority of Company’s Account Users. Controls are the sole responsibility of Company and are set up via the Online Portal. Company may contact Thunder Fuel Account Support for assistance with setting up Controls. For avoidance of doubt, Thunder shall have no liability arising from or relating to Company’s failure to set up, maintain, and monitor all Controls or for the failure of any Control to achieve its desired outcome. 

3.1. The availability and effectiveness of Controls is dependent upon each merchant’s adoption of card specifications and the information, including product codes that the merchant transmits to Issuer. The product codes are assigned by each merchant and not Issuer. In addition, some Controls are not enforceable at island card readers due to equipment restrictions at the merchant location. Only Transactions submitted for authorization are subject to Controls and those Controls can only be enforced when the merchant provides sufficient information as part of the authorization request.

3.2. Thunder encourages Company to set Controls in a manner that Company determines is most likely to conform usage of Cards and the Fuel Account to the purposes determined by Company. Thunder and Issuer are not responsible for the prudence of any particular Control level selected by Company. Issuer shall use reasonable efforts to deny requests for Transaction authorizations that fall outside the selected Control parameters. Company remains responsible for payment in full of Transactions which fall outside of the Control parameters selected, if such Transactions are made with a valid Card and are processed by Issuer. The existence and/or use of Controls will not affect Company’s liability for Unauthorized Transactions in certain circumstances as more fully described in the guidance information provided when you make your Control elections.   

3.3. Thunder or Issuer may, in its sole discretion, at any time, without prior notice, modify Controls for the purpose of, among others, aiding in the prevention of suspected fraudulent activity.

3.4. The following terms apply solely to Cards enabled for acceptance within the WEX North American Fleet (“NAF”) network of retail merchant locations: Because NAF transactions occur at NAF retail/forecourt locations, certain product specific limit Controls and Transaction information prompts may not be supported for NAF transactions. Further, due to system differences, NAF transactions may not post in real time. By selecting a Card type with NAF network acceptance, Company acknowledges the foregoing and accepts responsibility for any Transactions that fall outside Control parameters or lack standard information prompts that are not available on NAF network Transactions. Certain Transaction Fees set forth herein may also not apply to NAF transactions.

4. Reports and Other Product Features. Transaction data for each Fuel Account as transmitted by merchants can be viewed on the Online Portal and Thunder is not responsible for reconciling that data or for the accuracy or completeness of the data. In addition, Company understands that in the event an error is identified in a report, such as incorrect product code, Company is still liable for the Transaction but may follow the dispute process to obtain clarifying information. All reports and invoices shall be provided to Company through electronic methods. Company shall not receive paper invoices or statements.

5. Payment Promise. 

5.1. Company agrees to pay (i) all Fees and amounts payable for Transactions on each Card or Fuel Account; (ii) any and all costs (including reasonable attorneys’ fees) incurred in enforcing Company’s obligations set out in these Terms; and (iii) all obligations, covenants and warranties of Company set out in these Terms.

5.2. All Fees and other amounts payable by Company will be automatically deducted from the available prepaid balance on the Fuel Account or from any funds added to the Fuel Account. For any amounts payable that are not recovered from the available prepaid balance, payment is due on the payment due date provided on your billing statement. If the payment due date falls on a non-Business Day, payment is due on the Business Day before the payment due date. 

5.3. For Thunder Factoring clients only: Thunder may collect and offset from any Funded Amount or Reserve Account (as those terms are defined in the Factoring Services Agreement), without the requirement to provide any notice to Company, any monies owed for any amounts payable to Thunder pursuant to these Terms.

6. Late Fees & Returned Payments. Company agrees that payments for all Fees and charges are due and payable upon the due date provided on your billing statement. If an invoice is not paid in full on its due date, Thunder will impose a late charge equal to the greater of one hundred and fifty dollars ($150.00) or 6.99% of the unpaid balance (excluding any amounts previously invoiced and outstanding and excluding previous late Fees) not to exceed the maximum amount allowed by law. In the event a payment is returned, a fee of $75.00 per returned payment shall apply.

7. Application of Payments. Payments will be applied first to unpaid late Fees, then to any other outstanding Fees and then to unpaid balances. 

8. Disputed Amounts. 

8.1. Company shall use its best efforts to resolve business-to-business purchase disputes directly with the relevant merchant such as disputes arising out of quality or warranty issues.  

8.2. All charges must be paid in full regardless of reported disputes while they are being researched. During a dispute, a temporary credit may be placed on Company’s Fuel Account. Subject to Section 9 below, charges must be disputed via the Online Portal no later than sixty (60) days from the billing date or by contacting Thunder Fuel Account Support no later than fifty-five (55) days from the billing date or the Transaction(s) will be considered final and binding. Company may dispute an amount reflected on a billing statement if: (i) the amount does not reflect the face value of the Transaction; (ii) the amount being disputed is a fee that is not properly accrued under these Terms; or (iii) Company does not believe it is liable for that amount. 

8.3. If it is determined that the dispute is due to an error by Issuer or Thunder, the Issuer or Thunder will, as Company’s sole and exclusive remedy, refund the errored amount to Company’s Fuel Account and correct applicable invoices, if any.  

8.4. Certain Transactions in dispute may qualify for charge back to the merchant due to fraud or other circumstances in which the merchant may be liable. Issuer shall attempt to charge the Transaction back to the merchant in accordance with its procedures under its merchant acceptance agreements.Any accepted charge back will be credited to the relevant Fuel Account by the Issuer. The Company may be liable for the Transaction if the disputed item cannot be charged back to the merchant and neither Thunder nor Issuer shall have any liability for disputed items that cannot be charged back to the merchant.

8.5. Disputes may be rejected by Thunder and/or Issuer if (i) Company does not provide supporting documentation, (ii) if Company or the Account User did not obtain a receipt at the time of sale, or (iii) if the Transaction was made at an island card reader and such dispute arises from the Account User’s failure to comply with limits or Controls placed on the Card (which is not considered to be unauthorized use). Thunder shall not have any liability to Company for any rejected disputes irrespective of whether such dispute is rejected by Thunder or Issuer.

9. Notice of Loss, Theft, Inactive Cards, Unauthorized Use & Unauthorized Transactions.

9.1. In the event that Company or an Account User knows of or suspects the loss, theft or possible unauthorized use of a Card or Fuel Account or if Company would like to terminate an Account User, Company shall immediately notify Thunder and Issuer by updating its Fuel Account via the Online Portal. Company may request assistance updating its Fuel Account by notifying Thunder Fuel Account Support. Company is solely responsible for any Transactions incurred by such Account User(s) or Card(s).

9.2. Company is solely responsible for obtaining the return of any Card from any Account User whose Fuel Account or employment has been terminated and for returning such Card(s) to Thunder or destroying such Card(s) and providing confirmation of destruction to Thunder. Company is solely responsible for any Transactions incurred by such Account User or Card(s).

9.3. Company will immediately return any inactive Cards to Thunder at the address listed on the above application. 

9.4.Except as otherwise expressly provided below, Company will be liable to Thunder for all unauthorized use or Unauthorized Transactions that occur if: (i) a Card is lost, stolen or in the possession of an Account User whose Fuel Account or employment has been terminated and Company does not immediately notify Issuer or Thunder as provided in Sections 9.1 and 9.2 of these Terms; (ii) such use or suspected use occurs as a result of Company’s lack of reasonable security precautions and Controls surrounding the Cards or the Fuel Accounts as more fully described in Section 3 of these Terms;or (iii) such use results in a benefit, directly or indirectly, to the Company or any Account User. Misuse as defined by internal Company policy by an Account User or other employee does not constitute unauthorized use or an Unauthorized Transaction.

9.5. Replacement Cards shipped via USPS will be at no additional charge to Company. Expedited shipping will be subject to additional charges as set out in Exhibit A hereto or Thunder’s website (www.thunderfunding.com).

10. Term and Termination.

10.1. These Terms are effective upon acceptance of the application for a Fuel Account by Thunder and continues in effect until termination by either party upon not less than thirty (30) days prior written notice to the other party. Upon termination Company is still obligated to pay for all Transactions made and Fees incurred prior to the effective date of the termination and shall return to Thunder, or provide verification of the destruction to Thunder, of all Fuel Account numbers and Cards. 

10.2. Thunder may, at any time, elect to terminate or modify products or services described in these Terms or in any Program documents/literature upon thirty (30) days prior written notice to Company.

11. Default. 

11.1. A party to these Terms may terminate any Fuel Account(s) at any time upon the Default of the other party. “Default” means:  (i) the failure of the Company to remit payment to Thunder in accordance with these Terms; (ii) the material breach by either party of these Terms, provided the breach is not remedied within 15 days of the defaulting party’s receipt of written notice from the other party specifying the breach; (iii) the representation or warranty by either party of any facts in connection with these Terms that prove to have been, false, 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; (vii) 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 (vi) the default by Company or any affiliate of Company under any other agreement between Company, or any affiliate of Company, and Thunder.   

11.2. If Company Defaults: (i) all outstanding amounts under the Fuel Account(s) are immediately due and payable; (iii) Thunder may immediately terminate Company Fuel Account(s); and (iv) Thunder will have the right to bring suit and exercise all rights and remedies available under applicable law which may include the payment of all reasonable costs of collection. Alternatively, Thunder may, in its sole discretion suspend Company’s access to the Program. The suspension of the Program to Company will not be deemed a waiver of any right by Thunder to terminate Company’s Fuel Account(s) and access to the Program, whether as a result of the Default to which such suspension of services or obligations relates or otherwise.

12. Covenants. 

12.1. The parties represent and warrant that these Terms constitutes the legal, valid, binding, and enforceable agreement of each party as to the Program, and its execution and performance of these Terms:  (i) does not constitute a breach of any agreement of either party with any other party, or of any duty arising in law or equity; (ii) does not violate any law, rule or regulation applicable to it; (iii) is within the party’s corporate powers; and (iv) has been authorized by all necessary corporate action of the parties. Company agrees to provide any evidence of corporate (or other organizational) existence and authorization that Thunder may reasonably request.

12.2. Company will provide Thunder with advance written notice of: (i) any change in Company’s legal structure or legal name; (ii) any consolidation, merger or sale of a substantial part of Company’s assets; or (iii) any change of control of Company as well as if an employee or officer of Company that has provided a guaranty of payment has terminated their relationship with Company. Thunder reserves the right to make any necessary modifications to the Fuel Account terms based upon changes made by Company as referenced in this Section 12.2.

13. Disclaimers and Limitations. 

13.1. THUNDER, WHICH INCLUDES ANY PARENT SUBSIDIARIES, AFFILIATES, EMPLOYEES, OFFICERS, SHAREHOLDERS AND AGENTS, IS NOT LIABLE FOR ANY LOSS, INJURY (INCLUDING DEATH) OR DAMAGES SUSTAINED TO ANY PERSON OR PROPERTY BY ANY PARTY RESULTING FROM OR IN ANY WAY RELATED TO THE PROGRAM OR ANY ACT, OMISSION, OR FAILURE TO ACT BY THUNDER, WHETHER WITH RESPECT TO THE EXERCISE OR ENFORCEMENT OF ITS RIGHTS OR REMEDIES UNDER THESE TERMS, RELATING TO THE PROGRAM OR OTHERWISE, UNLESS THE LOSS IS CAUSED BY THUNDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THUNDER’S LIABILITY UNDER THESE TERMS AND ARISING FROM OR RELATING TO THE PROGRAM SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY COMPANY AS A DIRECT RESULT OF THUNDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. FURTHERMORE, THUNDER’S LIABILITY FOR ACTUAL DAMAGES ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT SHALL NOT EXCEED THE SUM OF ALL FEES PAID BY COMPANY TO THUNDER UNDER THESE TERMS AND THE PROGRAM IN THE 12 MONTHS PRIOR TO THE DATE WHEN ANY CLAIM IS MADE AGAINST THUNDER. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES AND, ANY RIGHT OR CLAIM TO ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES IS EXPRESSLY AND UNCONDITIONALLY WAIVED.

13.2. Thunder further disclaims all warranties with respect to goods, products and services purchased with a Card, including, without limitation, the implied warranty of merchantability or fitness for a particular purpose and Company will indemnify and hold harmless Thunder from any claims, actions, losses, injuries (including death) or damages arising from or in way relating to any goods, products and services purchased with a Card.

13.3. Company acknowledges and agrees that Thunder is not liable to Company for any loss, liability or damages Company suffers which result from, are related to, or in any way are connected with any fraud Control or purchase restriction measures Thunder or Issuer elects to implement from time to time, unless such loss, liability or damage is a direct result of Thunder’s gross negligence or willful misconduct in implementing fraud Control or purchase restriction measures Thunder has expressly agreed in writing to undertake for Company.

14. Governing Law. These Terms are governed by and construed in accordance with federal law and the laws of the State of California (without reference to choice of law rules) and the laws of the State of California law shall govern any claim, dispute or controversy arising from or relating to these Terms or the Program

15. Applicable and Conflicting Law. 

15.1. Changes in Law. In the event that there is a change in applicable law or regulation that is deemed by Thunder to make any part of these Terms or the Program to be impractical, impossible or unlawful, Thunder may modify these Terms and/or the terms of the Program (including the financial terms and applicable Fees) upon notice to Company (in accordance with the terms of Section 17 below) so that it is no longer impractical or impossible to comply with applicable law or regulation as determined by Thunder in its sole discretion. 

15.2. If either party is notified by a state or federal regulatory body that any aspect of the services provided by Thunder, the Program or these Terms do not comply with any applicable law, regulation, rule, policy, or order, or in the case of Thunder deems all or any part of these Terms or the Program to be unlawful, impractical or impossible then the affected party shall give the other party prompt written notice of the non-compliance, impracticality or impossibility. Following notice, the affected obligations will be suspended and the failure to perform those obligations will not be deemed a breach of or Default under these Terms so long as the affected party is unable to perform due to the notice given by the state or federal regulatory body and Thunder may modify these Terms or the Program to bring them into compliance with the applicable law, regulation, rule, policy, or order and the affected obligations shall reactivate upon such modification.

16. CLASS ACTION WAIVER; ARBITRATION AGREEMENT.

PLEASE READ THIS SECTION CAREFULLY AS THIS SECTION CONTAINS CLAUSES WHICH REQUIRE YOU TO WAIVE YOUR RIGHT TO A JURY TRIAL, PROHIBITS YOU FROM JOINING OR BEING PART OF A CLASS ACTION LAWSUIT AND REQUIRES THAT ALL DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF IN COURT.

16.1.    Waiver of Class Action. The parties agree voluntarily, intentionally, and irrevocably to waive all rights to participate in a class action (whether as a class member or class representative), private attorney general action or other representative action in any claim, dispute or controversy arising from or relating to these Terms or the Program.

16.2.1. Arbitration. The parties agree voluntarily, intentionally, and irrevocably that all claims arising from or relating to these Terms or the Program are subject to arbitration administered by the American Arbitration Association (“AAA”), no matter the legal theory on which they are based on or the remedy (damages, or injunctive or declaratory relief) they seek. This also includes claims made by or against any party connected with Company or Thunder, or by a party making a claim through Company or Thunder, such as an Account User, employee, agent, representative or an affiliated/parent/subsidiary company.

16.2.2. Arbitration Limits. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. Any claim brought may not be brought to pursue the claim as part of a class action or other representative action. Claims of two (2) or more parties may not be combined in the same arbitration. However, applicants, Account Users on a single Fuel Account and/or related Fuel Accounts or corporate affiliates are considered as one party for these purposes.

16.2.3. How Arbitration Works. The arbitration shall be conducted by a single arbitrator chosen in accordance with AAA rules and the arbitration shall be conducted in accord with this Section 16.2 and the AAA Rules, which may limit discovery. The arbitration shall be conducted in San Diego County, CA. The arbitrator shall make any award in writing and, if requested by a party to the arbitration, shall provide a brief statement of the reasons for the award. An arbitration award shall decide the rights and obligations only of the persons or parties named in the arbitration and shall not have any bearing on any other person or dispute.

16.2.4. Paying for Arbitration. Arbitration fees will be allocated according to the applicable AAA Rules. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to a party based on applicable law.

16.2.5  The Final Award. Any award issued by an arbitrator is final. A final award may be subject to judicial review as provided by applicable law. A final award may be entered in any court of appropriate jurisdiction.

16.3. If any part of this arbitration provision is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative claim. This arbitration provision may not be amended, severed or waived, except as provided in these Terms or in a written agreement between Company and Thunder.

17. Notices. Except as otherwise provided in these Terms, all notices will be in writing and deemed effective when personally delivered, mailed, first class postage prepaid or delivered via nationally recognized courier service to the appropriate party at the address set forth in the application or at such other address as the parties may indicate from time to time or in the case of notice by Thunder to Company by e-mail to an address normally used by an Account User or Company for business communications. The parties agree to waive any claim that a transmission does not satisfy any writing or signature requirements under applicable law. 

18. Confidentiality. All information furnished by either party in connection with the Program will be kept confidential (and will be used by the other party only in connection with the Program), except to the extent that the information:  (i) is already lawfully known when received; (ii) becomes lawfully obtainable from other sources; (iii) is required to be disclosed in any document filed in any court or agency of any government; or 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. Nothing in this section or these Terms prohibits Thunder from providing any information to its affiliates or third-party servicers (including, but not limited to, the Approved Digital Wallet provider(s) and Issuer) in connection with the operation and maintenance of the Program, and Company expressly agrees to these disclosures and use of information, provided that such affiliates and third party servicers agree to maintain the information confidentially. Company agrees and understands that Transaction information may be provided to merchants who have accepted the Card as payment for goods and services purchased by Company. Thunder may provide Company contact information to third parties who may provide goods or services to commercial enterprises. Company must notify Thunder in writing if it does not want to receive such marketing materials from third parties.

19. International Use of Cards/Currency Conversion. 

19.1. Cards are issued for use in the United States and Company may not distribute Cards to employees based in countries other than the United States and will not use or allow any employee to use the Cards or conduct any Transaction(s) outside of the United States without Thunder’s prior written approval.

19.2. Currency Exchange. In the event that Thunder approves of the use of the Cards in Canada, Company agrees that all indebtedness incurred by use of a Card in Canada to purchase goods or services will be converted to the U.S. Dollars. The current Royal Bank of Canada (RBC) noon exchange rate, with an additional two percent (2%) fee included in the effective rate paid to cover currency exchange fluctuation will be applied to the amount of each Transaction. The currency conversion rate that will be used on the processing date may differ from the rate that would have been used on the purchase date or Company’s statement posting date.

20. Force Majeure. 

20.1. Except for any payments due by Company pursuant to these Terms and/or the Program, in no event shall either party be liable to the other party for any failure or delay in performance wholly or in part due to causes or circumstances that were not reasonably foreseeable and that are beyond its reasonable control and that actually delay or prevent performance without its fault or negligence including, but not limited to the following:  Acts of God; acts of the public enemy; civil disturbance; war; acts of the United States of America or any state, territory or political division of the United States of America; fires; floods; natural disasters; pandemic or epidemic events, regional, statewide; communication line failures; and/or freight embargoes (collectively “Force Majeure”). A party’s failure to perform its obligations under these Terms due to Force Majeure events will not be considered breach or Default if the party has made commercially reasonable efforts to: (i) comply with its obligations; (ii) avoid an interruption of its performance; and (iii) resume its performance. 

20.2. The party claiming a failure or delay in performance under these Terms due to Force Majeure must promptly notify the other party in writing. In the event that any such Force Majeure failure or delay continues for a period of more than ten (10) Business Days, the other party may, upon written notice to the other party, have the option of terminating the Fuel Account(s) without incurring additional liability.

21. Relationship of the Parties. Nothing contained in these Terms shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between Thunder and Company. To the extent that either party undertakes or performs any duty for itself or for the other party as required by these Terms or the Program, the party shall be construed to be acting as an independent contractor and not as a partner, joint venturer, or agent for the other party.

22. Assignment. Company may not assign its participation in the Program or any interest, payment, or rights under the Program or these Terms for any reason, without Thunder’s prior written consent. Thunder may, in its sole discretion, assign these Terms and its obligations, transfer any right, or delegate any duty of performance under these Terms or the Program without further notice. The person or entity(ies) to whom Thunder makes any assignment is entitled to all of Thunder’s rights under these Terms, to the extent that those rights were assigned. 

23. Amendment. Thunder may amend any part of these Terms, including changing terms and Fees at any time upon at least thirty (30) days prior written notice to Company. Company’s continued use of the Card(s) or the processing of any Transaction after that thirty (30) day notice period shall be deemed conclusive proof of Company’s acceptance of such changed terms and/or Fees.

24. Severability and Waivers. If any portion of these Terms are held to be invalid, the remaining portions shall remain in full force and effect and shall continue to be binding upon the parties. Failure of either party to exercise any of its rights under the Program or these Terms in a particular instance will not be construed as a waiver of those rights or any other rights for any other purpose.

25. Entire Agreement. The Application, these Terms and any attachments or documents provided with the Application, and/or provided with the cards issued to Company’s business (and in the case of Thunder Factoring clients, the Rider to Terms, Conditions and Defined Terms (Pre-Delivery Load Fuel Advances to the Factoring Services Agreement) constitutes the entire agreement of the parties hereto pertaining to the Program and supersedes all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the Program.

Exhibit A

Fee Schedule

Transaction Fees:

Shipping Fees: