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You the Merchant agree that you own or leases an automated teller machine ("ATM").
ATMDepot.com hereinafter "Company" is in the business of providing processing services
for ATMs. Merchant desires to engage Company to perform certain services as set forth
herein. NOW, THEREFORE, In consideration of the foregoing Recitals and of the covenants
and agreements hereinafter contained, it is hereby agreed as follows:
1. EQUIPMENT. If Merchant purchases an ATM from ATMdepot.com Merchant agrees they
shall place an ATM on its premises in an indoor location pursuant to the location
information ("Premises") as set forth on the printed ATM agreement.
2. AVAILABILITY. Merchant agrees that the ATM shall at all times remain available
for use by Merchant's customers during Merchant's normal business hours for the term
of this Agreement. However, Merchant shall make the ATM available during reasonable
business hours so that the Company may perform maintenance or system improvements.
Generally, such maintenance should not exceed two (2%) percent of available time per
calendar month.
3. TRANSACTION PROCESSING FEES. Company agrees to pay Merchant for
each surchargable transaction made on the ATM. A "transaction"
shall mean any cash withdrawal made from a cardholder's account.
Company shall pay Merchant 110% of the stated ATM surcharge per
transaction (110% is limited to a maximum surcharge of $1.50). The
additional 10% is hereinafter
“Interchange”. If ATM surcharge exceeds $1.50 Company
shall pay Merchant 100% of surcharge plus 10% of the first $1.50
(or $1.65 in this example). If for example surcharge is $2.00 Company
shall pay Merchant $2.15. Payments for transactions will be disbursed
monthly by Company to Merchant on or before the 20th of each calendar
month following the calendar month in which the transactions occurred.
The transaction fee and Interchange may be increased or decreased
by Company upon at least 30 days prior notice to Merchant provided
such increase or decrease is directly related to a corresponding
cost incurred by Company in providing such service as deemed by the
ATM networks.
a. Effective April 1, 2005, MasterCard lowered the Interchange rate
by $0.05. MasterCard transactions are processed via the Cirrus ATM
network, which accounts for approx. 5% of all ATM transactions on
our network.
b. Effective October 1, 2005 Visa lowered the Interchange by $0.10.
Visa transactions are processed thru the Plus network, which accounts
for approx 10% of all ATM transactions on our network.
c. This does not affect the ATM surcharge; it only affects the additional
10% Interchange you receive over and above the surcharge you receive
by these small percentages for these specific network transactions.
4. ADVERTISING. Under NO circumstances shall merchant
allow any advertising to be displayed, promoted or
affixed to the ATM or coupons with out the express
WRITTEN permission of the Company. Such permission
shall not be unreasonably withheld.
5. PROCESSING SERVICES. Company agrees to provide
data processing services, through its agreement with
Access To Money and Lynk Systems Inc. or such other
processing service as Company, in its sole discretion,
may select, to process authorized ATM transactions.
Merchant agrees to accurately complete, or has accurately
completed, the ATMdepot.com Merchant Application,
and has completed and delivered or shall complete
and deliver such other Documents as are reasonable
required to facilitate the implementation and delivery
of such processing services.
6. INVENTORY REQUIREMENTS. Merchant shall, at its cost and expense, inventory an adequate
supply of paper and ribbons at Merchant's Premises, which are available from Company.
Merchant shall keep sufficient amounts of cash in ATM at all times, for normal expected
transaction usage.
7. PHONE AND ELECTRICAL REQUIREMENTS. Merchant shall, at its expense, contract for
and provide a local dedicated business telephone line and one (1) dedicated operating
electrical power outlet (110V), both within three (3) feet of the ATM site. Merchant
shall pay for monthly charges incurred for connection with such telephone line and
electrical power usage. ATM will dial a local or toll free number.
8. EXCLUSIVITY. Merchant shall not permit the installation of any other ATM on Merchant's
Premises, nor permit the removal of the ATM from the Premises for the term of this
Agreement, except as may be agreed by Company in writing or required by any lessor
of the ATM.
9. INSURANCE REQUIREMENTS. Merchant agrees to protect the ATM from damage, loss, theft
or destruction. Merchant shall provide and maintain property insurance against loss,
theft, damage or destruction of the ATM in an amount not less than the full replacement
value of the ATM. Merchant agrees it shall make no alteration or addition to the ATM,
and shall not permit anyone, other than authorized representatives of the Company,
to perform any service or repair work on the ATM unless it receives Company's prior
written authorization.
10. TERM. This Agreement shall be for a term of twenty-four (24) months from the date
of installation, unless amended or terminated by written agreement signed by both
Company and Merchant or terminated by Company pursuant to paragraph 13 below. Notwithstanding
anything contained herein to the contrary, Agreement will automatically renew for
additional terms of twenty-four (24) months unless Merchant provides written notice
to the contrary ninety days prior to the end of the current term. Customer agrees
that any terminal added to this agreement more than thirty (30) days after the date
of this Agreement shall have independent terms which shall commence on terminal's
installation date and run for initial and renewal terms equal in length to those of
the original terms.
11. WARRANTIES & REPRESENTATIONS OF MERCHANT. Merchant warrants represents as
follows: (a) It is the owner of the Premises or that it holds a lease or option to
renew the lease for said Premises of equal or greater length than the term of this
Agreement. (b) It is engaged in a lawful business and is duly licensed under the laws
of the State, County and City in which Merchant and the ATM is located, to conduct
such business. (c) It has not been terminated from settlement or card transactions
by any financial institution or determined to be in violation of MASTERCARD or VISA,
to conduct such business. (d) It has the authority to enter into this Agreement with
Company and that the person(s) signing for or on behalf of Merchant are specifically
authorized and directed to do so by Merchant.
12. EQUIPMENT RELOCATION. In the event Merchant transfers or moves its business from
the Premises, Merchant shall notify company not less than thirty (30) days prior to
any such event. In such event, this Agreement shall be automatically deemed amended
to apply to Merchant's new location for any remaining term(s) of this Agreement.
13. TERMINATION. This Agreement and all obligations of the Company hereunder may be
canceled by Company in the event of Merchant's default under the terms of any lease
for the ATM or in any event if Merchant fails to comply with the terms of this Agreement.
Merchant may terminate this Agreement prior to the end of the then current term, provided
Merchants gives Company 180 days advanced notice and pays Company a cancellation fee
as follows: 30% of the average monthly commission charges which have been billed or
collected by Company during the six (6) months prior to termination times the months
remaining in the then current term of this Agreement. Merchant hereby authorizes Company
to collect the cancellation fee on the termination date by electronic fund transfer
from Merchant's clearing account.
14. ATTORNEY'S FEES. If suit or legal action is instituted to enforce or interpret
any of the terms of this Agreement, the prevailing party shall be entitled to recover
from the other party, in addition to costs, such sums as the court may adjudge reasonable
for legal fees at trial and on any appeal there from.
15. COMPANY NOT LESSOR'S AGENT. Merchant understands and agrees that Company is not
an agent of any lessor of the ATM, that it has no authority to act on behalf of or
for any lessor, and that it is not authorized to waive or alter any term or condition
of any lease for the ATM.
16. COMPANY'S LIMITED LIABILITY TO MERCHANT.
a) Company will use ordinary care in providing transaction processing service and
will, at Company's expense, correct any errors that are due solely to Company's personnel.
However, the expense of correcting such errors incurred by Company shall be the only
responsibility of Company occasioned by its performance or non-performance of its
obligations under this Agreement, and Merchant agrees to accept the correction of
errors by Company as its sole and exclusive remedy. Merchant may not assert any claim
against Company after one (1) year from the date that Merchant has or should have
had knowledge of facts giving rise to such claim or any loss.
(b) Company shall have no liability to third parties for any damages incurred by such
third parties arising out of the performance or non-performance of services under
this Agreement, and Merchant agrees to and hereby shall indemnify and hold Company
harmless of, from and against any and all liability, claims, causes of actions or
expenses relating thereto including Company's attorneys' fees in connection therewith.
(c) EXCEPT AS PROVIDED IN THIS PARAPGRAPH 16, MERCHANT UNDERSTANDS AND AGREES THAT
COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO
ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE ATM, ITS MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, OR THE SERVICES RENDERED TO MERCHANT. COMPANY
SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE FOR ANY LOST PROFITS OR DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, ADDITIONAL, OR PUNITIVE DAMAGS OF MERCHANT, OR
ANY OTHER LIABILITY ARISING OUT OF ANY BREACH OF THIS AGREEMENT.
17. INDEMNIFICATION. Merchant shall indemnify Company and hold Company, and its officers,
directors, employees, agents, and independent contractors, harmless of, from and against
any and all claims, liabilities, costs, attorney's fees, losses or expenses, directly
arising or resulting from the installation, use, maintenance, or removal of the ATM
or the services covered by this Agreement accruing after the date hereof and/or from
Merchant's breach of this Agreement, except to the extent such claim, liability, cost,
loss or expense, or a portion thereof arises directly from the gross negligence or
willful misconduct of Company, its officers, agents, or employees. This provision
shall survive termination of this Agreement.
18. ASSIGNMENT. This Agreement may be assigned by Company but not by Merchant without
Company's prior written consent. Company reserves the right, in its sole discretion,
to delegate or assign to third parties the performance of certain of Company's servicing
and settlement obligations to Merchant. In the event of any such delegation, the provisions
of this Agreement applying to Company shall apply equally to such third party in the
performance of such services including, but not limited to, the limited liability,
indemnification, and force majeure provisions hereof.
18a. ASSIGNMENT. It is understood and agreed that if Location is sold and any of the
original owners of aforementioned business are stockholders, owners, or have any vested
interest in new business or corporation this agreement shall remain in force.
19. FORCE MAJEURE. Neither party shall be considered in default in the performance
of its obligation should its performance thereof be delayed or prevented by force
majeure. "Force majeure" shall include, but shall not be limited to: hostilities,
restraint of rules or peoples, revolution, civil commotion or riots, strike or lockout,
epidemic, accident, fire, flood, earthquake, wind storm or explosion, lack of or failure
of transportation facilities, lack of or failure of power facilities, regulation or
ordinance, demand or requirements of or denial of approval by any government or governmental
agency having or claiming to have jurisdiction over the subject matter of this Agreement
or the parties, or any act of God, or any act of government, or any cause, whether
of the same or different nature existing or future, which is beyond the control and
without the fault or negligence of the parties.
20. NETWORK CHARGEBACKS. Merchant acknowledges that Company does not process cash
transactions, but that the same are processed by the cardholder's financial institution
or others. In the event any transaction or daily settlement amount is disputed by
a cardholder's (customer's) financial institution or the processor and, as a result,
charged back by that financial institution or processor, Merchant hereby authorizes
and approves charging the amount of any such dispute, plus any assessed fees, directly
to the Merchant's clearing account, as identified in the AtmDepot ACH form or, the
amount of any such dispute may, at Company's discretion, offset and reduce any transaction
processing fees, daily settlements or remaining surcharge revenue due Merchant under
paragraphs 3 and 4 above. Notwithstanding, Company shall exert reasonable efforts
to assist in the resolution of any dispute.
21. TRADE SECRETS. The processing services provided by Company consist in part of
computer programs, procedures, forms, and other related materials which have been
acquired, licensed to or developed by Company at substantial expense. Merchant acknowledges
that the foregoing are trade secrets which are of great value to Company, and disclosure
to others of any of the programs, procedures, forms, and other related materials with
respect thereto will result in loss and irreparable damage to Company. Merchant, therefore,
agrees not to disclose to others any information regarding such process, except as
required in the proper performance of this Agreement. All specifications, tapes, programs,
service and trademarks, and related material developed by or for Company in connection
with this Agreement shall be the property of Company and shall be returned to Company
upon termination of this Agreement.
22. RELATIONSHIP OF PARTIES. It is not the intention or the purpose of this Agreement
nor shall any provision herein create nor shall the same be construed as creating
any type of partnership or joint venture of the parties hereto.
23. WAIVER. A waiver by either party of a breach of any provision of this Agreement
shall not constitute a waiver or prejudice of the parties' rights to otherwise demand
strict compliance with this Agreement and any and all provisions hereof.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties
hereto. There are no other promises, representations, terms, conditions or obligations
other than those contained herein. This Agreement supersedes all prior communications,
representations or agreements, oral or written, between the parties and shall not
be modified except in writing signed by each party.
25. COUNTERPARTS. This Agreement may be executed in one or more counterparts, which
counterparts shall together constitute one and the same instrument. A true and complete
facsimile copy of this Agreement and any signature affixed hereto shall be legally
effective for all purposes.
26. NOTICES. Any notices to be given under this Agreement shall be deemed adequate
if given in writing and sent by certified or registered international mail, by recognized
air courier, or by facsimile transmittal at a fax number known to be maintained by
the party to whom notice is to be given, coupled with a copy of the fax confirmation
sheet. Notice shall be deemed given when it is received.
27. MISCELLANEOUS. This Agreement shall bind and inure to the benefit of each of the
parties and their successors, representatives, and heirs. This Agreement sets forth
the entire agreement of the parties with respect to its subject matter and shall supersede
any prior discussions, understandings and agreements. No waiver or modification to
this Agreement shall be effective unless it is in writing, signed by the parties.
This agreement shall be deemed to have been made in the State of New Jersey and shall
be governed by its laws. No provision of this Agreement shall be interpreted or construed
against any party because such party or its legal counsel was the drafter thereof.
If any part of this Agreement is held invalid or unlawful by a court of competent
jurisdiction, the remainder of the Agreement shall remain in full force and effect.
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