AUTOMATIC TELLER MACHINE
SUPPLY AND SERVICING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into by and
between GameCash, Inc. ("Game") with offices at 00000 Xxxxxxx 00, X.X. Xxx
00000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 (FAX no. 612/000- 0000), and Soaring
Eagle Gaming ("SEG"), a chartered enterprise of the Saginaw Chippewa Indian
Tribe of Michigan (a federally recognized tribe) with offices at 0000 Xxxx
Xxxxxxxx, Xx. Xxxxxxxx, Xxxxxxxx 00000 (FAX no. 517/000-0000).
WHEREAS SEG desires to obtain installation, servicing and management
services for automatic teller machines ("ATM's") in its gaming operations and
Game is capable of providing such services, for good and valuable consideration,
the SEG and Game hereby agree as follows:
1. TERM OF AGREEMENT.
The Agreement shall be effective for a period of three (3) years, which
period shall commence on the date Game first provides services in SEG's gaming
operations. This Agreement shall automatically renew for [CONFIDENTIAL
TREATMENT]-year terms unless either party gives the other party ninety (90) days
prior written notice of termination.
2. SERVICES.
Game shall provide the following services at the Soaring Eagle Casino &
Resort:
(a) install 12 Deibold 1060 or 1064 ATM's, or a suitable equivalent
acceptable to SEG, which equipment shall be owned or leased by Game;
(b) service and maintain the ATM's at Game's sole expense;
(c) replenish cash in the ATM's on an as- needed basis;
(d) provide ATM hardware at Game's sole expense;
(e) pay for the cost of the telephone lien at Game's sole expense; and
(f) provide normal and reasonable maintenance to the equipment provided
for in this Agreement and take all reasonable steps to repair any
malfunction(s) within twenty four (24) hours.
Game shall, at its own expense, be responsible for providing any insurance,
licenses or permits usual or necessary for conducting the services described in
this Agreement. SEG shall not cause any lien or encumbrance to be placed on the
ATM's or the equipment relating thereto.
Game may consult with third parties in the performance of the Agreement
but SEG shall not be liable for any costs related to the services of any third
parties except by separate agreement between SEG and the third parties.
SEG and Game understand and agree that Game is an independent
contractor and not an employee of SEG, that the benefits and rights to which
Game is entitled are limited to those expressly set forth in this Agreement and
that no other rights or benefits are conferred upon Game by any other contract,
tribal law or policy, including any employee Personnel Policies and Procedures.
3. FEES AND PAYMENTS.
Game is entitled to a convenience fee of THREE AND 0/100'S DOLLARS
($3.00) for each customer ATM transaction. The ATM transaction charge will be
charged to the ATM customer's account and will not be paid by SEG under any
circumstances. Game will pay SEG a commission fee of [CONFIDENTIAL TREATMENT]
for all ATM transactions. Said convenience fees paid to Game include all costs
and expenses and SEG shall not be liable for any other expense, fee or cost
related to the services to be performed under this Agreement.
The Consultant shall be responsible for all state and federal tax
filing requirements, insurance and worker's compensation coverage and any other
state or federal requirements pursuant to any tax, insurance or governmental
program that may apply to an independent contractor. When required by law, SEG
shall provide an IRS 1099 form to Game and the IRS at the proper time.
4. TERMINATION OF AGREEMENT.
Should either party default in the performance of this Agreement or
breach any of the material provisions of this Agreement, the non-breaching party
shall give written notice to the breaching party of such default. If the default
is not cured by the breaching party within 15 days from the date of the written
notification of default, the Agreement may be terminated immediately by the
non-breaching party. Material breach shall include without limitation the
following:
i. nonpayment of any amounts due
under this Agreement after 10 days
following written demand for payment;
ii. failure of SEG to cooperate with
Game or its representatives with respect
to access to ATM locations for the
purposes defined in this Agreement; and
iii. failure of Game to service,
maintain or stock the ATM or related
equipment as required herein in a timely
manner.
Either party may also terminate this Agreement upon the bankruptcy or insolvency
of the other party.
5. WARRANTIES.
Game warrants and represents to SEG:
(a) that Game has taken all the necessary actions and received all the
necessary approvals under the terms of its articles and by-laws to
authorize its execution of this Agreement;
(b) that the person executing this Agreement has the authority under
Game's by-laws to execute this Agreement; and
(c) that it has obtained all the necessary government approvals to
carry out the purposes of this Agreement.
6. GENERAL PROVISIONS.
(a) Confidentiality. Any information of a confidential nature obtained
by either party from the other party shall be used solely for the
purposes of fulfilling the obligations under this Agreement. Generally,
confidential information is any information that is not known to either
party prior to entering this Agreement and not generally known within
the finance or gaming industry and includes, but is not limited to,
written information, information that is disclosed verbally and any
other information which may be made available to either party as a
party to this Agreement and pursuant to its purposes. The parties shall
at all times during and after the term of this Agreement maintain the
confidentiality of any such information and shall not disclose such
information to third parties without the express written consent of the
other party. The parties shall not duplicate any confidential
information in a tangible form and shall return such information to the
other party along with any notes or compilations immediately after the
need for such information has expired.
(b) Exclusivity. SEG agrees that during the term of this Agreement, or
any extension thereof, Game shall be the sole exclusive supplier of ATM
equipment and services within SEG's gaming operations.
(c) Notices. Any notice which by any provision of this Agreement is
required or permitted to be given or served shall be deemed so given
and served if sent by confirmed facsimile or by United States mail,
certified or registered, postage and fees fully pre-paid, return
receipt requested. Such notices shall be effective upon the date
received if sent by confirmed facsimile or, if mailed, upon the earlier
of (i) 72 hours, or (ii) actual receipt as indicated in the return
receipt. Any notice sent forth above shall be addressed to SEG or Game
at the address stated above or, if sent by facsimile, it shall be sent
to SEG's or Game's facsimile number set forth above. Any party may
change its address or facsimile number for service of notices by giving
notice to the other party in the manner described herein.
(d) Assignment and Subcontractors. This Agreement shall not be assigned
by Game and such assignment shall be void without the prior written
consent of SEG. Game shall not subcontract any part or all of the
services to be rendered under this Agreement without the prior written
consent of SEG.
(e) Time is of the Essence. Time is of the essence of this Agreement.
(f) Force Majeure. Game shall not be excused from the performance of
any of its obligations under this Agreement except when such
performance is prevented by events which are beyond the reasonable
control of Game, such as acts of God, labor contract strikes, or civil
unrest. Game shall give prompt notice to SEG of any event of Force
Majeure that may prevent performance by Game. Any obligations of Game
under this Agreement which may be excused due to an event of Force
Majeure shall be excused only for the duration of the event and only to
the extent that the performance of such obligations is prevented by the
event.
(g) Entire Agreement. This Agreement supersedes all prior written or
oral agreements and is not contingent upon or conditioned on the
performance of any other agreement which may have been entered into by
the parties. This Agreement and any exhibits or attachments
incorporated herein by reference constitute the entire agreement of the
parties and there are no other written or oral agreements,
representations, or understandings of any kind. If there is any
conflict or inconsistency between the terms of this Agreement and any
exhibits or attachments, this Agreement shall take precedence unless
the matters set forth in the exhibit or attachment expressly and
explicitly provide otherwise.
(h) Modifications. This Agreement may only be modified by a written
agreement that is signed by a duly authorized representative for each
party. Only the Chairperson or Vice- Chairperson, upon the approval of
a quorum of the SEG Board, has authority to modify this Agreement or to
enter into a different Agreement with Game, which must be in writing
and signed by the Chairperson or Vice- Chairperson to be enforceable.
(i) Severability and Headings. The provisions of this Agreement are
severable. If any provision of this Agreement is determined to be
invalid or unenforceable it shall be considered deleted from this
Agreement and the invalidity of such provision shall not affect the
validity or enforceability of any other provisions which shall be given
effect in the absence of the invalid provision. The headings of this
Agreement are for reference purposes only and only the text of each
provision shall be construed to be the terms and conditions of this
Agreement.
(j) Remedies and Waiver of Breach. The remedies provided for in this
Agreement are cumulative rather than exclusive and are in addition to
all other remedies provided by law or equity. The failure of either
party to insist upon strict performance of any of the covenants and
agreements contained herein, or to exercise any right or option
conferred by such provisions, in any one or more instances, shall not
be construed to be a waiver or relinquishment of any such option or
right, or of any other covenants or agreements, but the same shall
remain in full force and effect.
(k) Indemnification and Insurance. SEG shall indemnify and hold
harmless Game and Game's owners, managers, employees and
representatives against all liability, claims, actions, damages,
demands, penalties, fines or expenses arising directly from any acts or
omissions of SEG. Any negligence of Game in such instance shall not
operate as a bar to Game's right to indemnification under this
Agreement.
Game shall indemnify and hold harmless SEG and SEG's officials,
employees and representatives against all liability, claims, actions, damages,
demands, penalties, fines or expenses arising directly from any acts or
omissions of Game. Any negligence of SEG in such instance shall not operate as a
bar to SEG's right to indemnification under this Agreement.
SEG and Game shall at their own expense procure and maintain in force
at all times during the term of this Agreement or any extension thereof, a
policy or policies of comprehensive general liability insurance, combined single
limit of at least $1,000,000 with a company qualified to do business in the
State of Michigan.
(l) Attorney's Fees. In the event of any arbitration or court
proceeding brought to resolve any dispute or claim arising from this
Agreement, the prevailing party shall be entitled to recover from the
other party its reasonable attorneys' fees and costs of such action.
For purposes of this Agreement, the "prevailing party" shall be deemed
to be that party that prevails on a majority of the material issues
brought in such action.
(m) Governing Law. The governing law for this Agreement shall be the
laws of the Saginaw Chippewa Indian Tribe of Michigan. Game agrees that
all disputes, actions and claims arising from this Agreement shall be
subject to the exclusive jurisdiction of the Saginaw Chippewa Tribal
Court and Game consents to the personal jurisdiction of the Tribal
Court.
AGREED
SOARING EAGLE GAMING GAMECASH, INC.
/s/ Xxxxxxx X. Xxxxxx, Xx. /s/ Xxxx Xxxxxx
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Xxxxxxx X. Xxxxxx, Xx., Chairperson Xxxx Xxxxxx, President and CEO
7/22/96 8/2/96
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