RETAIL TERMINAL PROCESSING AGREEMENT
THIS AGREEMENT is made this 1st day of February, 2003 ("Effective Date") by and
between Cashbanx ("Customer") and ATM Financial Corp. ("ATM").
WHEREAS ATM wishes to be the exclusive provider of certain electronic funds
transfer services to Customer for the locations listed in Schedule A attached
hereto, and ATM agrees to provide such services as more fully described herein:
AND WHEREAS all capitalized terms have the meanings set forth in Schedule B;
NOW THEREFORE in consideration of the mutual covenants and promises contained
herein, ATM and Customer agree as follows:
1. SERVICES
1.1 ATM shall provide Customer with the connectivity services and other related
services described and listed in Schedule C attached hereto.
1.2 ATM agrees to mail, fax or transmit to Customer acceptable and usable
monthly reports of services provided at the Customer's ATMs
2. EXCLUSIVITY AND SCOPE OF AGREEMENT
2.1 Exclusivity. Customer agrees to use ATM as the exclusive provider for the
locations included in this Agreement and for the services described in section
1.1 above during the term of this Agreement and any successive term. For the
purposes of this Article 2 "Customer" shall include Canadian Coin Machine
Distributors Ltd. and any affiliate thereof.
2.2 Scope of Agreement. This Agreement sets forth the respective rights and
obligations of Customer and ATM with respect to ATM providing electronic funds
transfer services to (i) Customer (and its affiliates) for any ATM owned, leased
or in the possession or control of and placed by Customer for Customer's own
benefit; and (ii) with respect to ATMs acquired by Customer for resale to third
parties, whether directly or by a distributor.
3. FEES
3.1 Surcharge Fees. Surcharge fees will be as set out in Schedule C.
3.2 Taxes. All charges hereunder are exclusive of applicable federal and
provincial taxes and Customer shall pay, or reimburse ATM for, any such taxes
that may be levied upon the services rendered under this Agreement, other than
taxes levied on or based upon ATM's ownership of property or net income.
4. CONFIDENTIAL INFORMATION SERVICE MARKS
4.1 Confidential Information. For the purposes of this Agreement,
"Confidential Information" shall include all proprietary information supplied by
either party to the other party following execution of this Agreement when such
information is designated in writing as "confidential" by the party supplying
the information. The party receiving the Confidential Information shall keep,
and shall require its employees, agents, representatives and consultants who are
given access to Confidential Information to keep any such information
confidential. Neither party shall disclose Confidential Information to a third
party or use it for its own benefit, except as expressly permitted in writing by
the providing party or except as required to perform this Agreement. Disclosure
of Confidential Information to the employees, agents, representatives or
consultants of the party receiving such information, or to any other party
permitted under this Agreement shall be on a need-to-know basis only. The
parties agree that information shall not be confidential to the extent that such
information:
(a) is already known to the receiving party at the time it is obtained
from the providing party;
(b) is or becomes publicly known through no wrongful act of the receiving
party;
(c) is rightfully received by the receiving party from a third party
without restriction and
without breach; or
(d) is independently developed by the receiving party without any
confidential
information of the other party.
4.2 No Licence Intended. Nothing contained in this Agreement shall be deemed
to give any rights by way of licence or otherwise to either party to the
confidential or proprietary information or trade secrets of the other party.
5. DUE CARE AND LIABILITY
5.1 Ordinary Care.
(a) ATM will use ordinary care in implementing the services to be provided
hereunder and will, at ATM's expense, correct any errors that are due
solely to ATM personnel. However, the expense of correcting such errors
incurred by ATM shall be only the responsibility of ATM occasioned by its
performance or non-performance of its obligations under this Agreement, and
Customer agrees to accept the corrections of errors by ATM as its sole and
exclusive remedy. Customer may not assert any claim against ATM after one
(1) year from the date that Customer has or should have had knowledge of
the facts giving rise to such a loss.
(b) IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE FOR INDIRECT,
CONSEQUENTIAL, INCIDENTAL, ADDITIONAL OR PUNITIVE DAMAGES OF THE OTHER OR
ANY OTHER SIMILAR LIABILITY ARISING OUT OF ANY BREACH OF THIS AGREEMENT.
6. TERMS AND TERMINATION
6.1 Initial Term and Renewal. The original term of this Agreement shall
commence on the Effective Date and continue for a period of five (5) years and
shall be known as the "Initial Term". Any equipment added to Schedule A of this
Agreement shall be bound by this agreement and the date installed shall become
the Effective Date. The Agreement will automatically renew for a successive
three (3) year period at the end of the Initial Term of this Agreement and at
the end of each renewal term until the Agreement is terminated by either party
giving written notice of termination to the other party at least ninety (90)
calendar days before the end of the Initial Term or before the end of any
renewal thereof. Such termination shall not in any way affect the terms of any
other agreement between the Customer and ATM.
6.2 Termination for Default. If not terminated sooner in accordance with the
terms hereof either the Customer or ATM may terminate this Agreement upon
default of the other party under this Agreement and failure of such defaulting
party to cure such default within ninety (90) calendar days after receipt of
written notice specifying the event of default claimed. If such default is not
cured within such ninety (90) day period, the terminating party may give
immediate written notice of termination at any time thereafter.
6.3 Termination Upon Insolvency. The Customer or ATM may terminate this
Agreement forthwith upon notice to the other party if:
(a) either party applies for or consents to the appointment of, or the
taking of possession by, a receiver or receiver/manager, custodian,
administrator, trustee, liquidator or other similar official for a party or
for all or any part of its business; or,
(b) either party commits an act of bankruptcy or makes a general
assignment for the benefit of creditors or a proposal under the Bankruptcy
and Insolvency Act (Canada), the Companies' Creditors Arrangement Act
(Canada) or a similar statute of Canada or of any province or territory
thereof or any other jurisdiction; or,
(c) either party institutes any proceeding seeking to adjudicate itself
bankrupt or insolvent, or seeking liquidation, dissolution, winding up,
reorganization, arrangement, adjustment, protection, relief of composition
of itself or its debt under any statute, rule or regulation relating to
bankruptcy, insolvency, reorganization, relief or protection of debtors or
at common law or in equity; or,
(d) any proceeding against either party:
(i) has adjudicated it a bankrupt or insolvent;
(ii) has resulted in the liquidation, dissolution, winding up,
reorganization,
(iii) has resulted in an appointment of a receiver or
receiver/manager for a party or for all or any material part of a
party's assets and such appointment has not been stayed or discharged
by it within ten (10) days from the date made.
6.4 Payment Due Upon Termination. Upon any termination of this Agreement, all
monies owing by Customer to ATM or by ATM to Customer, together with any and all
interest accrued and unpaid thereon, shall be due and payable at the time of
termination. Notwithstanding termination of this Agreement, the Customer shall
be responsible for the settlement of all of the Customer's customers' accounts
including all those back items through Interac and any other affiliate Networks,
in accordance with Interac regulations, and all monies owing to ATM as a
consequence of Interac trace-back transactions.
7. MISCELLANEOUS
7.1 Entire Agreement. This Agreement and the Schedules attached hereto
constitute the entire understanding between the parties with respect to the
subject matter hereof, and supersedes all past agreements between the parties
with respect to the subject matter hereof whether verbal or in writing. All
such past agreements are expressly agreed to be void and of no continuing effect
from and after the Effective Date.
7.2 Binding Nature and Assignments. This Agreement shall be binding on the
parties and their successors and assigns but neither party may assign this
Agreement without the prior written consent of the other, except to a wholly
owned subsidiary, the parent, or a wholly owned subsidiary of the parent of the
assigning party.
7.3 Notices. All notices, orders, directives, requests or other written
communications required or permitted to be given or sent pursuant to this
Agreement, shall be deemed given if sent by facsimile, mailed by Canadian Postal
Service, registered or certified, return receipt requested, postage prepaid, and
addressed as follows:
If to ATM:
0000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xxxxxx X.X. Xxxxx
If to Customer:
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX
X0X 0X0
Attention: Xx. Xxxxx Xxxxxx
Any party may at any time change its address for notification purposes by
mailing aforesaid a notice thereof setting forth the new address, and the date
on which the new address shall be effective.
7.4 Waiver. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by written
amendments signed by the parties hereto.
7.5 Relationship of Parties. ATM is providing the System and its services only
as an independent contractor. ATM does not undertake by this Agreement or
otherwise to perform any obligation of the Customer, whether regulatory or
contractual.
7.6 Approvals, Consents, etc. Where agreement, approval, acceptance or consent
by either party is required by any provision of this Agreement, such action
shall not be unreasonably delayed or withheld.
7.7 Legal Fees. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable legal fees and
other costs incurred in that action or proceeding in addition to any other
relief to which it may be entitled.
7.8 Governing Law. The construction, enforceability, validity and
interpretation of this Agreement shall be in accordance with the laws of the
Province of British Columbia.
7.9 Interac. The provisions in this Agreement are not to be interpreted so as
to constitute in any manner whatsoever the Customer as a member of Interac.
7.10 Currency. All dollar amounts stated herein shall be Canadian currency
unless specifically stated otherwise.
7.11 Schedules. The Schedules attached to this agreement, "A" through "C",
inclusive, form a part of this Agreement and are to be construed as such.
CASHBANX ATM FINANCIAL CORP.
By: /s/Xxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
