Fair Value If the parties fail to agree upon the purchase price of the Transferred Shares in accordance with Section 3.2(a) hereof, then the IT Rightholders or the Company, as the case may be, shall purchase the Transferred Shares at a purchase price equal to the Fair Value thereof. The Fair Value of the Transferred Shares shall be determined by a nationally recognized investment banking firm or nationally recognized expert experienced in the valuation of corporations engaged in the business conducted by the Company. Within five (5) Business Days after the date the applicable parties determine that they cannot agree as to the purchase price, the Involuntary Transferee and the Board of Directors (in the case of a purchase by the Company), or the purchasing IT Rightholders purchasing a majority of the Transferred Shares being purchased by the purchasing IT Rightholders (if the Company is not purchasing any Transferred Shares), or the Board of Directors and such purchasing IT Rightholders jointly (in the case of a purchase by the Company and IT Rightholders), as the case may be, shall designate one such appraiser that is willing and able to conduct such determination. If either the Involuntary Transferee or the Board of Directors or the purchasing IT Rightholders or both, or all, as the case may be, fails to make such designation within such period, then any other party may apply to the American Arbitration Association or a court of appropriate jurisdiction for the appointment of such an appraiser. The appraiser shall conduct its determination as promptly as practicable, and the Fair Value of the Transferred Shares shall be determined by such appraiser. Such determination shall be final and binding on the Involuntary Transferee, the Company and the IT Rightholders. The Involuntary Transferee shall be responsible for one-half the fees and expenses of the appraiser designated by or on behalf of it, and the Company and/or the purchasing IT Rightholders in proportion to the ratio in which they are purchasing Transferred Shares shall be responsible for one-half of the fees and expenses of the appraiser. For purposes of this Section 3.2(b), the "Fair Value" of the Transferred Shares means the fair market value of such Transferred Shares determined in accordance with this Section 3.2(b) based upon all considerations that the appraiser determines to be relevant.
Operating Standards (A) Distributor and its Dealer(s) shall conduct the operation of their respective businesses related to the resale of the Product(s) in a clean and safe manner and shall otherwise conduct no business which could interfere with the sale of Product(s) or damage the goodwill of the Valero brand or the Marks. Without limiting the foregoing, Distributor and its Dealer(s) shall, at all times during the term of this Agreement, fully comply with VMSC’s then current “Basic Operational Requirements” which Distributor acknowledges have been received and reviewed by Distributor. Furthermore, without limiting any provision to the contrary herein, Distributor and its Dealer(s) shall fully comply with VMSC’s “Commitment to Excellence Requirements”, which Distributor acknowledges have been received and reviewed by Distributor. As of the Commencement Date, Distributor and its Dealer(s) agree to participate in the Commitment to Excellence Program (“CTE Program”). The CTE Program provides that each Station meets the established Commitment to Excellence Requirements which consists of requirements from each of the following VMSC documents: VMSC’s Basic Image Requirements, Wholesale Branding Manual, and Basic Operational Requirements. VMSC reserves the right to amend, change, or otherwise modify the “Basic Operational Requirements”, “Commitment to Excellence Requirements” and the “CTE Program” from time to time, in VMSC’s sole and absolute discretion.
(B) Distributor and its Dealer(s) shall comply with all Laws of any governing authority or agency having jurisdiction or purporting to have jurisdiction relating to the handling, storage, testing, sale, distribution, transportation, and/or use of the Product(s) and shall further comply with all rules, guidelines, and procedures of VMSC in connection with the loading, transportation, handling, storing, testing, selling, dispensing, and/or use of the Product(s).
(C) Subject to Paragraph 12 of this Agreement, Distributor and its Dealer(s) shall continuously offer at least three grades of “Valero” branded gasoline at each Station.
(D) Distributor and its Dealer(s) will utilize and maintain updated point of sale systems as required by VMSC. VMSC also reserves the right to install, and Distributor and its Dealer(s) agree to utilize, update and maintain, other automated systems, at Distributor’s cost, as required by VMSC, including but not limited, such systems necessary to poll, at frequencies determined by VMSC, each Station’s Product sales.
(E) VMSC may inspect or review compliance by Distributor and its Dealer(s) with the requirements of this Paragraph 8 in any reasonable manner that VMSC determines, including, but not limited to, announced and unannounced visits.
(F) Distributor expressly understands and agrees that a confidential relationship is established between VMSC and Distributor under this Agreement and that, as a result thereof, VMSC will be disclosing and transmitting to Distributor certain confidential and proprietary information in connection with the Distributor’s operation of the Station. Distributor hereby agrees that Distributor shall not, during the term of this Agreement or thereafter, communicate, divulge or use for the benefit of any other person, persons, partnership, association or corporation and, following the expiration or termination of this Agreement, shall not use for the benefit of Distributor, or any of its principals, any confidential information, knowledge or know-how concerning the methods of operation (including pricing) of the Station which may be communicated to Distributor or its principals or of which they may be apprised in connection with the operation of the Station(s) under the terms of this Agreement. Distributor shall divulge such confidential information only to such of Distributor’s employees as must have access to it in order to operate the Station(s). Any and all information, knowledge, know-how, techniques and any materials used in or related to the Station which VMSC provides to Distributor in connection with this Agreement shall be deemed confidential for purposes of this Agreement. Such confidential information does not include information that, at the time it was disclosed to or learned by Distributor, was part of the public domain, nor information that, after the time it was disclosed to or learned by Distributor, became part of the public domain through disclosure, publication or communication by persons other than Distributor or its employees. Distributor shall not at any time, without VMSC’s prior written consent, copy, duplicate, record or otherwise reproduce such materials or information, in whole or in part, nor otherwise make the same available to any unauthorized person.
(G) Distributor acknowledges that strict compliance with the terms and conditions of this Paragraph 8 is a material and important part of the consideration for this Agreement.
