EXHIBIT 10.12
DATE: 25 JANUARY 2005
SUBJECT TO CONTRACT
TRM (ATM) LIMITED
AND
ALLIANCE & LEICESTER CASH SOLUTIONS LIMITED
AGREEMENT FOR THE PROVISION OF CASH
CONTENTS
1. DEFINITIONS AND INTERPRETATION............................................................................. 4
2. PROVISION OF SERVICES...................................................................................... 6
3. TITLE, RISK AND DECLARATION OF TRUST....................................................................... 8
4. FEES....................................................................................................... 9
5. DURATION................................................................................................... 10
6. WARRANTIES................................................................................................. 10
7. CONFIDENTIALITY............................................................................................ 11
8. INTELLECTUAL PROPERTY...................................................................................... 12
9. ENTIRE AGREEMENT........................................................................................... 12
10. ASSIGNMENT.............................................................................................. 12
11. TERMINATION............................................................................................. 12
12. FORCE MAJEURE........................................................................................... 13
13. LIABILITY AND INSURANCE................................................................................. 14
14. DISCREPANCIES........................................................................................... 15
15. DISPUTES................................................................................................ 16
16. WAIVER.................................................................................................. 16
17. SEVERABILITY............................................................................................ 16
18. NOTICES................................................................................................. 16
19. AUTHORITIES............................................................................................. 16
20. THIRD PARTY RIGHTS...................................................................................... 16
21. APPLICABLE LAWS AND DATA PROTECTION..................................................................... 16
22. AUDIT AND PROVISION OF INFORMATION...................................................................... 17
23. LAW..................................................................................................... 17
This Agreement is made on the 25 day of January 2005
BETWEEN
(1) TRM ATM LIMITED (Company Number: 3782309) whose registered office is at
Tower 42,Level 00,00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX ("CUSTOMER"); and
(2) ALLIANCE & LEICESTER CASH SOLUTIONS LIMITED (Company Number 4282945) whose
registered office is at Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx, XX00 0XX
("ALCS")
WHEREAS:-
1. The Customer has a requirement for bank notes for its ATM business in the
UK.
2. ALCS has agreed to supply bank notes to the Customer in accordance with
the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context otherwise requires, the following
expressions shall bear the meanings set out against them below:
"ADDITIONAL SERVICES" means any additional services agreed to be
provided by ALCS as set out in Schedule 1.
"AFFILIATE" means any Subsidiary(s) or Holding
Company(s) of that party and any other
Subsidiary(s) of that/those Holding
Company(s) at any time during the term of
this Agreement.
"AGENT" means Securicor Cash Centres Limited or any
other agent appointed by ALCS pursuant to
Clause 2.3 of this Agreement for the
purposes of providing all or part of the
Services.
"ATM" means an automated teller machine owned by
the Customer in respect of which Notes are
supplied by ALCS subject to the terms and
conditions of this Agreement.
"ATM USER" means any cardholder authorised to use an
ATM.
"BANKING DAY" means a day (other than a Saturday or a
Sunday) on which banks in London are open
for general business.
"BASE RATE" means the base rate of Alliance & Leicester
plc from time to time.
"CARRIER" means a cash in transit company employed to
transport Cash between Nominated Cash
Centres and the Customer approved by ALCS in
accordance with Clause 10.3.
"CASH" means legal tender under the Currency and
Bank Notes Xxx 0000; any banknotes which are
legal tender in Scotland, Northern Ireland
and the Channel Islands (including the Isle
of Man, Jersey and Guernsey); and any bank
notes in any denominations which are at any
time legal tender in those jurisdictions.
"CASH VALUE" means the face value of all Cash provided by
ALCS to the Customer.
"CHAPS" means the Clearing Houses Automated Payment
System.
"COMMENCEMENT DATE" means 1st February 2004
"CONFIDENTIAL INFORMATION" means this Agreement, and all information
and materials in whatever form relating to a
party's business and customers (which in the
case of ALCS includes its Agent's business
and customers) obtained by a party as a
result of entering into this Agreement,
together with any other information or
materials which by their nature are
confidential.
"CUT-OFF TIME" means the time before which Cash must be
collected from a Nominated Cash Centre by a
Carrier, as notified to the Customer by ALCS
from time to time.
"DAY OF ORDER" means each day on which the Customer
generates an Order with ALCS for Notes under
this Agreement.
"DISCREPANCY" means any irregularity in the amount of
Notes that the Customer claims it has
received from or provided to ALCS, and the
amount of value of the Notes that ALCS
believes it has provided or received from
the Customer.
"FEES" means the fees to be paid by the Customer to
ALCS under this Agreement as set out in
Schedule 2 and this Agreement.
"FULLY SERVICED" means, in relation to an ATM, that ATM is
stocked with Notes supplied solely by ALCS
in accordance with the terms of this
Agreement.
"HOLDING COMPANY" has the meaning given in Section 736 of the
Companies Xxx 0000.
"INTELLECTUAL PROPERTY" means all rights in copyright, patents,
know-how, Confidential Information, database
rights and designs (whether registered or
unregistered) and any applications to
register or rights to apply to register the
same existing anywhere in the world.
"LIBOR" means the London Interbank Offer Rate for
one month as published in the Financial
Times on the day prior to the last Banking
Day of each calendar month.
"LINK" means Link Interchange Network Limited.
"LINK OPERATING RULES" means the operating rules of LINK in force
from time to time.
"MERCHANT SERVICED" means, in relation to an ATM, that ATM is
stocked with Notes supplied by a party other
than ALCS.
"NCS" means the Bank of England's note circulation
scheme, as amended from time to time, and
any successor scheme.
"NOMINATED CASH CENTRE" means those cash centres of ALCS or its
Agents nominated by ALCS for use by the
Customer for the purposes of this Agreement.
"NOTE" means Cash in the form of banknotes.
"ORDER" means each order from the Customer for the
provision of Cash by ALCS.
5
"PBNE" means plastic banknote envelopes (including
envelopes, sachets, packets, containers,
plastic or linen bags or otherwise) for
provision of, or deposits of, Cash.
"PROCESSING AGENT" means ATMOS or such other person as may
be approved by ALCS in accordance with
Clause 10.3 from time to time.
"REQUIREMENTS DOCUMENT" means the Requirements Document set out in
Schedule 3 to this Agreement, as amended
from time to time by written agreement
between the parties.
"RPI" means the percentage increase, in each
calendar year from the Commencement Date in
the United Kingdom All Items Index published
by the UK National Statistical Office (or by
a successor Ministry, Department or other
office) from time to time or any replacement
index.
"SUBSIDIARY" has the meaning given in Section 736 of the
Companies Xxx 0000.
"THE SERVICES" means the provision of Cash in accordance
with this Agreement, together with any
Additional Services set out in Schedule 1.
"VAT" means value-added tax under or pursuant to
the EC Sixth VAT Directive 77/388/EEC or any
subsequent legislation and any similar tax
imposed in substitution for, or in addition
to, such tax.
1.1 Clause headings are for convenience only and shall not affect the
interpretation of this Agreement.
1.2 All Schedules to this Agreement constitute an integral part of this
Agreement.
1.3 Except where the context otherwise requires, words importing the singular
include the plural and vice versa.
2. PROVISION OF SERVICES
2.1 In consideration of the payment of the Fees, and subject to the Customer
complying with its obligations under this Agreement, ALCS shall provide
Notes to the Customer for use in ATMs in accordance with Orders and
subject to the terms and conditions of this Agreement and the requirements
of Schedule 1 and the Requirements Document. The Customer may not Order
more than (pound)60,000 of Notes per ATM in any one Order without the
prior written consent of ALCS
2.2 ALCS may provide Additional Services by agreement with the Customer, and
such additional terms and conditions as the parties shall agree in writing
shall apply in respect of such Additional Services.
2.3 ALCS shall be permitted to use third parties to act as agents on its
behalf for the provision and receipt of Cash as required, and to provide
any other services agreed to be provided by ALCS to the Customer under
this Agreement.
2.4 The Customer shall ensure that all Ordered Cash is collected from
Nominated Cash Centres each day before the relevant Cut-Off Time.
2.5 All Cash provided pursuant to this Agreement is to be collected by the
Customer's Carrier from the Nominated Cash Centres at the Customer's sole
cost.
2.6 All collections and deposits of Cash at Nominated Cash Centres made on
behalf of the Customer shall be made only by Carriers approved by ALCS in
accordance with Clause 10.3 who are accredited by the British Security
Industry Association. The Customer shall provide ALCS with evidence of
such accreditation to ALCS prior to employing a carrier in connection with
this Agreement, and annually thereafter.
2.7 Orders for Cash shall be generated by the Customer in accordance with the
procedures set out in Schedule 1 and the Requirements Document, and as
notified by ALCS to the Customer from time to time.
2.8 The Customer shall arrange for collection by its Carrier of
Notes which have not been withdrawn from ATMs by ATM Users,
and the delivery of those Notes to Nominated Cash Centres, in
accordance with the timeframes and procedures agreed between
the parties from time to time and the provisions of the
Requirements Document.
2.9 The Customer hereby undertakes to ensure that its Carrier:
2.9.1 is made aware of the responsibilities accepted by the
Customer and the liabilities imposed on the Customer
under this Agreement;
2.9.2 is, in respect of the Notes, comprehensively insured
for loss, theft, damage and other risks at all times
that Notes are in the Carrier's possession;
2.9.3 at all times keeps Notes in containers separate from
all other notes in its possession and ensures that
such containers are distinctly marked to enable the
Notes to be identified as having been supplied to the
Customer by ALCS;
2.9.4 ensures that all Notes collected from Nominated Cash
Centres are filled into ATMs within 7 Banking Days of
collection from ALCS;
2.9.5 ensures (when making deposits at Nominated Cash
Centres under Clause 2.9 that the deposit
documentation provided with each such deposit clearly
identifies the ATM from which the Notes/ATM cassettes
have been collected prior to their return to the
Nominated Cash Centre. If a deposit comprises
Notes/ATM cassettes removed from more than one ATM;
then the deposit documentation provided with such
deposit shall clearly identify which deposit of
Notes/identified ATM cassettes have been removed from
each individually identified ATM;
2.9.6 provides a monthly statement to ALCS detailing Notes
held in the name of ALCS, Notes to be used for ATM
replenishment and Notes awaiting return to ALCS, and
provides all necessary co-operation to enable ALCS to
carry out a monthly check to confirm the total value
of Notes held by each Carrier from time to time; and
2.9.7 is aware that beneficial ownership of the Notes is
vested at all times in ALCS.
2.10 The Customer undertakes to ensure that its Processing Agent
carries out full reconciliation of ATMs (to include
calculation of Note withdrawals by ATM Users and Note
refilling by the Customer's Carrier) on a daily basis.
2.11 The Customer shall give ALCS at least 10 days written notice
if the status of any ATM is to be changed from Fully Serviced
to Merchant Serviced so as to enable ALCS to terminate the
existing Regular Orders for that ATM. No notice may be served
until a Fully Serviced ATM has been serviced by ALCS under
this Agreement for at least 2 months. ALCS shall not provide
Notes for any Merchant Serviced ATMs.
2.12 The Customer hereby undertakes that it shall, promptly upon
written request by ALCS, make such arrangements as are
reasonably required by ALCS to provide security to ALCS:
2.13.1 for the discharge by the Customer of its obligations
under this Agreement;
2.13.2 for the security of the Notes; and/or
2.13.3 the return of the Notes to ALCS.
2.13 The Customer shall procure settlement of the Cash
Value of the Notes in favour of ALCS in accordance
with the following procedure:
2.13.1 in respect of Notes withdrawn by ATM Users from ATMs,
by direct credit by LINK into a Bank of England
settlement account in the name of ALCS of an amount
equal to the Cash Value of Notes withdrawn in
accordance with the LINK Operating Rules; and
2.13.2 in respect of Notes not withdrawn by ATM Users from
ATMs, by the return of Notes to a Nominated Cash
Centre in accordance with Clause 2.9.
2.14 Discrepancies of Cash shall be dealt with in accordance with
Clause 14. Discrepancies in respect of Additional Services
shall be dealt with as agreed between the parties.
2.15 The parties shall hold quarterly meetings at a location to be
agreed to review any relevant matters in relation to this
Agreement generally.
2.16 Each party shall meet all their respective obligations as set
out in Schedules 1 and the Requirements Document within the
time frames set out in Schedule 1 and the Requirements
Document. In particular, the Customer shall ensure that its
Processing Agent and its Carrier(s) carry out their duties on
the Customers' behalf so as to meet all the Customers
obligations within those required time frames. In the event of
any conflict between Schedule 1 and the Requirements Document,
the provisions of the Requirements Document will prevail, but
only to the extent required to resolve such conflict.
2.17 If the Customer wishes ALCS to provide Euro banknotes under
this Agreement then ALCS shall consider if this is practical
and the parties shall discuss the Customer's proposal. If ALCS
agrees to provide Euro banknotes then this Agreement shall be
amended in accordance with Clause 9.1 to incorporate any
additional or amended Fees and terms and conditions in respect
of the same.
[2.18] Deleted
2.19 Re-banking of Notes not withdrawn by ATM Users from ATMs by
way of redelivery to a Nominated Cash Centre will be carried
out at ALCS' cost provided that the Cash Value of Notes to be
re-banked does not exceed 30% of the value of the Order(s)
relating to those particular Notes. If re-banking of Notes
exceeds the 30% limit on a regular basis then ALCS and the
Customer shall enter into good faith negotiations to revise
the ATM Management Fee set out in Schedule 2. The parties
shall endeavour to reach agreement on a new ATM Management Fee
within one month of commencement of discussions. If no
agreement is reached in that time, then ALCS may determine, in
its sole discretion, the amended ATM Management Fee applicable
from that date.
3. TITLE, RISK AND DECLARATION OF TRUST
3.1 On delivery (by means of a release of Notes to the Customer's
Carrier by ALCS's Agent following an Order placed by the
Customer), risk in the Notes shall pass to the Customer. Risk
in the Notes shall remain with the Customer until the earlier
of:
3.1.1 the time that the Notes are withdrawn by an ATM User
from ATMs; or
3.1.2 the time that the Notes are re-delivered to, and
receipted by, ALCS.
The Customer shall be liable to ALCS for the Cash Value of
Notes during the whole of the period in which risk in the
Notes is vested in the Customer under this Clause 3.1.
3.2 ALCS's Agent at each Nominated Cash Centre will obtain a dated
and time stamped receipt (prepared by the Agent) signed by the
Customer's Carrier as evidence of each delivery of Notes to
the Customer's Carrier.
3.3 Beneficial ownership of the Notes shall at all times be
retained by ALCS until the Notes are withdrawn by ATM Users
from ATMs. Accordingly, the Customer hereby agrees that it
will hold the Notes on trust for ALCS absolutely from the time
that they are delivered by ALCS to the Carrier until the
earlier of:
3.2.1 the time that the Notes are withdrawn by an ATM user
from ATMs; or
3.2.2 the time that the Notes are re-delivered to, and
receipted by, ALCS.
3.4 For the avoidance of doubt, ALCS shall continue to retain
beneficial ownership of any Notes collected from ATMs which
are to be returned to ALCS under Clause 2.9, and legal
ownership of those Notes shall revert to ALCS immediately upon
delivery of the Notes to ALCS.
3.5 At the time of withdrawal by an ATM User of the Notes from
ATMs, legal and beneficial title to the Notes shall be
transferred to the ATM User withdrawing the Notes, and at the
same time a claim ("a Repayment Claim") will arise in favour
of the Customer against the bank of that ATM User in an amount
equal to the Cash Value of the withdrawal made by that ATM
User. The Customer agrees that it shall hold all Repayment
Claims on trust in accordance with the Declaration of Trust
set out in Schedule 4.
3.6 ALCS's Agent at each Nominated Cash Centre will issue a dated
and time-stamped receipt, to the Customer's Carrier as
evidence of acceptance of return of Notes by the Customer's
Carrier under Clause 2.9. Copies of these receipts will be
made available to Customer within 5 business days of request
to ALCS. Customer will receive credit for notes returned on
the date of return provided they are returned by 14.00hrs. A
retrospective interest payment will be credited to the
Customer's invoice on a monthly basis to reflect the value
dating of the notes returned.
4. FEES
4.1 The Customer shall pay the Fees to ALCS for the provision of
the Services and any Additional Services.
4.2 ALCS will use reasonable endeavours to send the Customer a
notice of the Fees payable for the previous month within 5
Banking Days of the month end.
4.3 The Fees shall be payable for the duration of the Agreement,
monthly in arrears, on or following issue of the notice of
Fees payable for that month under Clause 4.2. Fees shall be
payable each month from such bank account as may be agreed
between the parties from time to time in accordance with the
direct debit to be provided by the Customer under Clause 4.10.
4.4 All Fees are expressed to be exclusive of VAT. In the event
that VAT is, or becomes, payable in respect of the Services or
any part of them, a tax invoice shall be issued by ALCS and
all such VAT shall be paid to ALCS by the Customer in addition
to the Fees.
4.5 In the event of any change in the rules or practice relating
to NCS, or any change to any other industry practice which has
or may have a material effect on the costs ALCS incurs in
providing the Customer with the Services, or VAT is or becomes
payable in respect of the services provided to ALCS by its
Agents pursuant to this Agreement, ALCS reserves the right to
vary the Fees to take account of any additional costs it or
its Agents may incur. If ALCS varies the Fees, ALCS will give
the Customer 30 days notice before any variation takes effect.
4.6 If, for whatever reason, payment of the Fees is not received
by ALCS in accordance with Clause 4.3, then the Customer shall
pay interest to ALCS on the amount due at Alliance & Leicester
plc's base rate plus 3% from the date payment became due until
the date of payment.
4.7 In the event that the actual annual Cash Order Volumes vary by
plus or minus 20% compared with the annual Cash Order Volumes
as agreed between the Customer and ALCS then ALCS shall have
the option to propose amended Fees to be payable under this
Agreement.
4.8 If ALCS proposes amended Fees under Clause 4.7 above, then the
parties shall discuss the proposed Fees and if the new Fees
are agreed then the same shall apply from the date of such
agreement. If the parties have not agreed amended Fees within
1 month of ALCS's proposal under Clause 4.7, then the Customer
shall have the option within the next month to terminate this
Agreement on 6 months' written notice. If the Customer serves
notice under this Clause 4.8 then the existing Fees shall
apply during the notice period. If the Customer has not served
notice to terminate under this Clause 4.8 within 2 months of
ALCS's proposal under Clause 4.7, and no other agreement as to
amended Fees is made, then the amended Fees proposed by ALCS
shall apply from the date ALCS made the proposal.
4.9 The Customer shall forthwith execute a direct debit in favour
of ALCS relating to the bank account agreed by the parties
under Clause 4.3. In the event of a Discrepancy as set out in
Clause 14, then ALCS shall have the right, , to debit or
credit the value of such Discrepancy from or to the Customers
account, as applicable, in accordance with Clause 14.4, and
provide the Customer with written confirmation of the source
of the Discrepancy.
4.10 In addition to the Fees, interest charges shall be payable by
the Customer to ALCS at Base Rate plus 5bpsin respect of the
Cash Value of Notes provided under this Agreement, and shall
be calculated on a daily basis from the day of collection of
Cash from a Nominated Cash Centre up to but not including the
date on which the full Cash Value of such Notes is received by
ALCS under Clause 2.14.
5. DURATION
5.1 This Agreement shall be conditional upon the following
conditions having been fulfilled:
5.1.1 the Customer having provided to ALCS the following
documents:
5.1.1.1 a copy of its memorandum and articles of
association;
5.1.1.2 a copy of its certificate of incorporation;
and
5.1.1.3 a copy of a resolution of its board of
directors approving the terms of this
Agreement; authorising a specified person or
persons to execute this Agreement on its
behalf; and authorising such authorised
person(s) to sign and/or despatch all other
documents and notices to be signed and/or
despatched by it under or in connection with
this Agreement,
in each case certified by a director, officer or authorised
attorney of the Customer as being true and complete as at the
Commencement Date;
5.1.2 the Customer having provided to ALCS:
5.1.2.1 a signed Deed of Trust in the form set out
in Schedule 4; [and]
5.1.2.2 a signed Irrevocable Undertaking (Customer)
in the form set out in Schedule 5; [and]
5.1.2.3 [a duly executed parent company guarantee in
a form specified by ALCS; and]
5.1.3 ALCS having provided to the Customer a signed
Irrevocable Undertaking (ALCS) in the form set out in
Schedule 6.
5.2 Subject to fulfilment of all the conditions in Clause 5.1,
this Agreement shall commence on the Commencement Date and,
subject to earlier termination under Clause 11, shall be for
an initial period of 24 months, continuing thereafter until
terminated by either party on not less than 6 months' prior
written notice to the other party.
6. WARRANTIES
6.1 Each party warrants that:
6.1.1 it is a company incorporated under the laws of
England and Wales;
6.1.2 it has full capacity and authority to enter into and
perform this Agreement; and that (in the case of the
Customer) the signatory(s) to this Agreement and the
direct debit under Clause 4.10 have full authority on
behalf of the Customer to authorise debits from, and
credits to, the Customers bank account agreed under
Clause 4.3 in accordance with this Agreement;
6.1.3 it has taken all necessary action to authorise the
entry into, and performance and delivery of, this
Agreement;
6.1.4 all governmental and other consents necessary or
desirable for entering into this Agreement have been
obtained;
6.1.5 this Agreement constitutes its legal , valid and
binding obligations, enforceable in accordance with
their terms, subject (in the event of insolvency or
analogous proceedings) to applicable laws relating to
creditors rights and to limitations on the
availability of remedies as a result of equitable
considerations;
6.1.6 the entry into, and performance of, this Agreement
does not and will not conflict with:
6.1.6.1 any applicable law or regulation of England
and Wales or any applicable official or
judicial order;
6.1.6.2 any material agreement or document to which
it is a party or which is binding upon it or
any of its assets; or
6.1.6.3 any provisions of its constitutional
documents; and
6.1.7 it will perform its obligations under this Agreement
using reasonable care and skill.
6.2 The Customer warrants to ALCS that:
6.2.1 upon termination for any reason, or expiry, of the
Agreement the Customer shall provide ALCS with, and
ALCS shall have, unhindered access to the Notes,
including the right to retrieve Notes (whether in
transit, at any depot belonging to any Carrier or in
ATMs)
6.2.2 at the date of this Agreement neither the Customer
nor any Affiliate of the Customer are in breach of
any financial obligation under any banking or credit
facility granted to the Customer or any Affiliate of
the Customer by a bank or other financial
institution;
6.2.3 the Customer will notify ALCS by telephone (to be
confirmed in writing) within 24 hours of the Customer
or any Affiliate of the Customer breaching any
financial obligation under any banking or credit
facility granted to the Customer or any Affiliate of
the Customer by a bank or other financial
institution. Such notification shall detail the
financial obligation breached, the steps being taken
to remedy such breach by the Customer or any
Affiliate of the Customer, and the time period by
which the Customer or the relevant Affiliate of the
Customer must remedy the breach under the relevant
banking or credit facility ("the Remedy Period").
6.3 If ALCS has reasonable grounds to believe that the Customer
and/or any Affiliate of the Customer may be in breach of any
financial obligation under any banking or credit facility
granted to the Customer or any Affiliate of the Customer by a
bank or other financial institution, and no breach has been
notified under Clause 6.2.3; then ALCS shall have the right to
request in writing that the Customer and/or any Affiliate of
the Customer unconditionally confirm in writing (with
supporting documentary evidence) within 3 Banking Days of the
request being made that no such breach exists. If the Customer
does not provide such unconditional confirmation within 3
Banking Days, or ALCS has reasonable grounds for considering
that the supporting documentation provided by the Customer
and/or any Affiliate of the Customer does not provide
reasonable confirmation that no such breach exists, then ALCS
shall have the right to request in writing that the Customer
and/or the relevant Affiliate of the Customer provide an
auditors certificate (at the Customers cost) unconditionally
confirming that no such breach exists. If the Customer and/or
the relevant Affiliate of the Customer do not provide an
auditors certificate in the required form within 7 Banking
Days of the request being made by ALCS, then the Customer
and/or the relevant Affiliate of the Customer shall be deemed
to be in actual breach of a relevant financial obligation for
the purposes of Clause 11.3.2.
7. CONFIDENTIALITY
7.1 Subject to Clause 21.2, each party shall keep all Confidential
Information in strictest confidence, and shall not without the prior
approval of the other party use such Confidential Information for any
purposes other than for the purpose of fulfilling its obligations under
this Agreement. A party shall not disclose Confidential Information to
any person other than its officers, employees, Carriers, Agents and
Processing Agents without the prior written consent of the other party.
Each party shall ensure that its officers, employees, Carriers, Agents
and Processing Agents are aware of the need for compliance with the
provisions of this Clause 7, and any disclosure to such officers,
employees, Carriers, Agents and Processing Agents shall be solely for
the purposes of this Agreement.
7.2 The foregoing shall not apply to Confidential Information which:
7.2.1 is already known by the other party;
7.2.2 is or becomes within the public domain other than by reason of
a breach by such party of this Clause 7;
7.2.3 is properly received by the other party who is not bound by
any obligation of confidence;
7.2.4 is required to be disclosed by any law or governmental or
regulatory authority or agency or by any order of any court of
competent jurisdiction;
7.2.5 is required to be disclosed by the regulations of any
recognised stock exchange.
8. INTELLECTUAL PROPERTY
8.1 Neither party may use or reproduce in any manner or in any form any
Intellectual Property belonging to the other party or to the Agent
without the prior written consent of that party. If any such consent is
given, it may be withdrawn at any time by giving written notice, in
which case the party receiving the notice shall immediately withdraw
from use any items incorporating the Intellectual Property.
8.2 Neither party shall refer to this Agreement, the Services, or to the
other party in any publicity, advertisement, promotion or other
disclosure without the prior written consent of the other party, such
consent not to be unreasonably withheld or delayed.
9. ENTIRE AGREEMENT
9.1 This Agreement, including the Schedules hereto, constitutes the entire
understanding between ALCS and the Customer and supersedes all previous
agreements, undertakings and non-fraudulent representations relating to
its subject matter. No variation or amendment of this Agreement shall
be effective unless made in writing and signed as an agreed amendment.
10. ASSIGNMENT
10.1 This Agreement is personal to the Customer and the Customer shall not
be entitled to sub-contract, assign or transfer all or any of its
rights, benefits and/or obligations under this Agreement without the
prior written consent of ALCS. For the avoidance of doubt, if any
proposed assignee is a company or legal entity whose registered office
or principal place of business is not situated in the United Kingdom,
then this shall be reasonable grounds to withhold consent.
10.2 ALCS may assign or transfer all or any of its rights and/or obligations
under this Agreement at any time upon notice in writing to the
Customer, and the Customer shall enter into such documents as ALCS may
stipulate in order to effect such transfer or assignment.
10.3 The Customer may not sub-contract its rights or responsibilities under
this Agreement, or materially amend the terms of any permitted
sub-contract related to or in connection with this Agreement, without
the prior written consent of ALCS. It shall be a condition of ALCS
granting any consent to the Customer to employ a Carrier, that ALCS
shall have the right to inspect and approve the contract between the
Customer and the Carrier to enable ALCS to satisfy itself that the
Customer is meeting its obligations under this Agreement, that ALCS's
title to Cash is acknowledged, and that the Carrier's security and
operational procedures meet ALCS requirements.
11. TERMINATION
11.1 This Agreement may be terminated as follows:
11.1.1 by either party forthwith by notice in writing to the other
party if the other party is in material breach of this
Agreement and fails to remedy the breach within 30 days of
notice of the breach being given by the non-defaulting party.
For the avoidance of doubt, any material breach of the
Requirements Document shall be a breach of this Agreement;
11.1.2 by either party forthwith by notice in writing to the other if
the other party (or its parent or holding company) shall be in
breach of any financial obligation under any banking or credit
facility granted to it by a bank or financial institution,
shall become insolvent, shall convene a meeting of creditors,
or if a proposal shall be made for a voluntary arrangement or
any other composition, scheme or arrangement with (or
assignment for the benefit of) its creditors, or if it shall
be unable (or is deemed by law to be unable) to pay its debts,
or if a trustee, receiver, administrative receiver, liquidator
or similar officer is appointed in respect of all or any part
of its business or assets or if a petition is presented or a
meeting is convened for the purpose of consideration of a
resolution or
other steps are taken for the winding up or dissolution of the
other party or for the making of an administration order
(other than for the purposes of a reconstruction or
amalgamation);
11.1.3 by either party as provided for in Clauses 5.2 or 5.3;
11.1.4 by ALCS forthwith by notice in writing if ALCS has reasonable
grounds to believe the Services are being used for fraudulent
or money laundering purposes;
11.1.5 by the Customer as provided for in Clause 4.8.
11.1.6 by ALCS forthwith by notice in writing if at any time there
occurs any event or circumstance which has had or is
reasonably likely to have a material adverse effect on the
ability of the Customer to meet any if its obligations under
this Agreement
11.2 This Agreement may be terminated immediately by ALCS upon written
notice to the Customer in the event that ownership or control of the
Customer is materially altered whether by change of ownership of stock
or otherwise, where in the reasonable opinion of ALCS such change in
ownership is detrimental to ALCS. For the purposes of this Clause 11.2,
"control" means the ability to direct the affairs of another whether by
virtue of ownership of shares, contract or otherwise.
11.3 This Agreement may be terminated by ALCS immediately upon written
notice to the Customer if, at the time of service of the notice by
ALCS, the Customer and/or any Affiliate of the Customer are in actual
breach of any financial obligation under any banking or credit facility
granted to the Customer or any Affiliate of the Customer and:
11.3.1 such breach has not been notified to ALCS by the Customer in
accordance with Clause 6.2.3; or
11.3.2 ALCS has not been provided, within 5 Banking Days of a request
being made by ALCS under Clause 6.3, with an auditors
certificate unconditionally confirming that the Customer
and/or the relevant Affiliate of the Customer are not in
breach of any financial obligation under any banking or credit
facility granted to the Customer or the relevant Affiliate of
the Customer by a bank or other financial institution; or
11.3.3 such breach has been notified by the Customer to ALCS under
Clause 6.2.3 and the Remedy Period (as defined in Clause
6.2.3) under that notification has expired without remedy of
the breach; or
11.3.4 such breach has been notified by the Customer to ALCS and
three calendar months have expired without remedy of the
breach. For the avoidance of doubt, the right to terminate
granted under this Clause 11.3.4 shall apply irrespective of
whether any Remedy Period for that breach has expired.
[11.4] (deleted)
11.5 Upon termination for any reason, or expiry, of this Agreement, the
Customer shall forthwith comply with its obligations under Clause 6.2.1
and shall in addition procure that the Carrier allows ALCS immediate
and unhindered access to the Notes (including the right to physical
possession of the Notes). ALCS will provide the Customer with written
confirmation of the amount of Notes retrieved pursuant to this
provision.
11.6 Any termination of this Agreement pursuant to this Clause 11 shall be
without prejudice to any other rights or remedies either party may be
entitled to hereunder or at law and shall not affect any accrued rights
or liabilities of either party.
11.7 The rights and obligations of the parties under Clauses 2.2, 2.5, 2.10,
2.11, 2.14, 2.20, 3, 4, 6, 7, (for 5 years from termination), 8, 11,
12, 13, 14, 19, 20, and 22.1 shall survive any termination of this
Agreement.
12. FORCE MAJEURE
12.1 ALCS shall not be responsible for delay or failure to perform the
Services or any part of the Services due to causes beyond its
reasonable control, including (as examples but not by way of
limitation) force majeure, act of God or governmental act, fire,
explosion, accident, civil commotion, war (whether declared or not),
terrorist attack, industrial dispute (whether at ALCS, the Agent or any
third party) or the failure (directly or indirectly) of any machine,
data processing system or transmission link ("an event of Force
Majeure").
12.2 ALCS agrees to give notice forthwith to the Customer upon becoming
aware of an event of Force Majeure and to use all reasonable endeavours
to mitigate the effect of any event of Force Majeure upon the
performance of this Agreement.
12.3 The provisions of this Clause 12 shall not apply in respect of the
obligations under Clauses 2.9, 2.10, 2.11, 2.14, 3, 4, 6.2.3, 6.3,
7,10.3, 13.5 and 22.
13. LIABILITY AND INSURANCE
13.1 Neither party shall be liable to the other party for any indirect or
consequential loss (including any loss of profits, revenue, anticipated
savings, goodwill, data, contracts or any loss or damage suffered by a
party as a result of any claims brought by a third party) which may
arise in connection with this Agreement or the Services, even if such
loss was reasonably foreseeable or the defaulting party had been
advised of the possibility of the other party incurring the same.
13.2 ALCS shall not be liable to the Customer for any loss suffered as a
result of the misuse of the Services by the Customer.
13.3 ALCS's aggregate liability to the Customer under or in connection with
this Agreement (whether in contract, tort or howsoever arising) in
respect of one cause of action or any series of events arising from the
same cause of action shall not exceed the amount of Fees paid by the
Customer to ALCS in the 12 months prior to the cause of action arising.
13.4 Notwithstanding anything to the contrary contained in this Agreement,
neither party excludes or limits liability for fraud or for death or
personal injury resulting from a negligent act or omission of its
employees, agents or subcontractors.
13.5.1 The Customer shall maintain money insurance cover ("the Insurance") in
respect of loss of Notes in the Customers ATMs in a sum not less than
$1,000,000, subject to a reasonable excess/deduction of no more than
$15,000 per claim; in addition the Customer shall maintain fidelity
insurance cover in a sum not less that $500,000; and shall name ALCS on
any relevant insurance policy ("the Policy") as an additional insured
party. All monies recovered by the Customer under the Policy in
accordance with this Clause 13.5 shall be for the benefit of ALCS. For
the avoidance of doubt, the Customer also confirms that in relation to
any insurance claim made by its Carrier in respect of the Notes, the
proceeds of which are payable to the Customer (either directly or by
the Carrier), the Customer shall hold such proceeds upon trust for ALCS
absolutely and shall promptly pay such proceeds to ALCS to the extent
such amount is outstanding to ALCS.
13.5.2 The Customer shall accept and self-insure such of its liabilities under
this Agreement as are not covered under the insurance to be maintained
under Clause 13..5.1 including, for the avoidance of doubt:
13.5.2.1 liability for cash from the point at which the Customer or its
nominated Carrier crosses the threshold of the premises at
which the ATM site is situated (including the period of
replenishment of the ATM's and decashing of ATM's) until the
Customer or its nominated carrier exits by re-crossing the
threshold of the premises at which the ATM site is situated:
and
13.5.2.2 any liability in excess of the minimum insured amount under
Clause 13.5.1: and
13.5.2.3 any liability not covered by, or excluded from a claim
against, the insurance cover required under Clause 13.5.1
including liability for the cash while in transit to and from
the Nominated Cash Centre, and excess/deductible under the
insurance policy.
13.6 Where so required by ALCS, the Customer shall produce the Policy for
inspection by ALCS, together with evidence of payment of premiums due
for the Policy. The Customer shall ensure that in the event that the
Insurance is about to be cancelled or will lapse for any reason, the
Customers insurers and/or insurance brokers will notify ALCS
immediately to take whatever action is necessary to prevent such
cancellation or lapse.
13.7 In the event that the Customer fails to comply with Clauses 13.5 or
13.6 (which shall be a material breach of this Agreement) then without
prejudice to ALCS' rights against the Customer for such breach, ALCS
reserves the right to insure against any of the obligations referred to
in Clause 13.5 and to recover the premiums payable in respect of such
insurance from the Customer.
13.8 Save as expressly set out in this Agreement, ALCS gives no warranties,
guarantees or undertakings concerning its performance of the Services
and any Additional Services, and the Customer hereby expressly agrees
and acknowledges that all other conditions, terms, undertakings and
warranties, express, implied or statutory in respect of the Services
and the Additional Services (including but not limited to those as to
quality, performance, suitability or fitness for purpose) are hereby
excluded.
14. DISCREPANCIES
14.1 Missing PBNE's
14.1.1 Upon receipt of Cash by the Carrier immediately following its
collection from a Nominated Cash Centre, the Carrier shall
(under dual control) undertake an initial bulk check to ensure
that the appropriate number of PBNEs of each relevant Note
denomination are present to meet the individual ATM
replenishments as advised by the customer. This information
will be shown on the Cash breakdown sheet delivered with the
Cash. If any PBNEs are missing, or if there is an excess, the
Customer should immediately advise ALCS Discrepancy Duty by
telephone on 0000 000 0000.
14.2 Cash Discrepancies
14.2.1 A full Note count is to be undertaken by the Carrier
immediately following collection from a Nominated Cash Centre
of the Cash from ALCS to ensure sufficient value of notes per
denomination are present to meet the ATM replenishments as
advised by the Customer. Any discrepancies (shortages or
excesses) should be immediately reported by telephone to ALCS
Discrepancy Duty on 0151 966 2182. If the carrier elects not
to undertake a full Note count, the Customer accepts full
responsibility for the stated amount of Notes collected.
14.2.2 ATM Discrepancies
14.2.1 Each ATM shall be emptied at least once each month (or such
other interval as may be agreed between the parties from time
to time for each ATM) and the Notes removed from each of the
ATM returned to a Nominated Cash Centre by the Customer's
Carrier. Notes must be re-banked to the Nominated Cash Centre
no later than the morning of the third Banking Day following
removal of the Notes from the ATM by the Customer's Carrier.
All re-banked Notes shall be fully sorted and placed into
PBNE's provided by ALCS in accordance with the denominational
specification on the bag prior to re-banking. All PBNEs must
be marked with a Customer specific stamp and identify the ATM
from which they have been removed, allowing an audit trail to
be developed.
14.2.3 ALCS shall have the right after 15 Banking Days of re-banking
of any Notes, to claim against the Customer in respect of any
Discrepancy shortage in the re-banked PBNEs.
14.3 Settlement
14.3.1 ALCS will investigate all Discrepancies and liase directly
with the Carrier if appropriate. At all times ALCS will ensure
the Customer is kept appraised of ongoing investigations.
14.3.2 Settlement in respect of Discrepancies, once substantiated by
ALCS, will take place monthly by credit to or debit from, as
applicable, the Customers bank account agreed under Clause 4.3
of this Agreement.
14.3.3 Where a forgery is found in Cash provided under this
Agreement, the Customer shall, within 3 Banking Days of
collection of the Cash from ALCS, forward to ALCS at the
address below the forged note together with confirmation of
the Discrepancy value and the relevant PBNE/bag and Note
wrapper. Settlement of the Discrepancy value of the forgery
will be made by credit to the Customers bank account.
14.4 ALCS address for Discrepancies is:
Cash Development Branch, Discrepancy Duty, Alliance & Leicester Cash
Solutions, 0 Xxxx ,Xxxxxx Xxxx, Xxxxxx, XXX OAA
15. DISPUTES
15.1 If any dispute or difference arises in connection with this Agreement,
the parties shall meet in good faith with a view to resolving the
dispute. If the parties are unable to resolve the dispute within ten
Banking Days, then the parties may refer the matter to their senior
management representatives for resolution.
15.2 If the senior management representatives are unable to resolve the
dispute within a further ten Banking Days then the parties may, by
agreement, refer the matter to mediation in accordance with the Centre
for Dispute Resolution (CEDR) Model Mediation Procedure, the costs of
which shall be borne jointly by the parties.
16. WAIVER
16.1 No waiver by one party of any breach of this Agreement by the other
party shall be construed as a waiver of any subsequent breach of the
same or any other provision of this Agreement. No delay or indulgence
by one party in enforcing the provisions of this Agreement shall
prejudice or restrict the rights of that party.
17. SEVERABILITY
17.1 Each of the provisions of this Agreement are separate and severable and
enforceable accordingly and if, at any time, any provision is judged by
any court in a competent jurisdiction to be void or unenforceable, the
validity, legality and enforceability of the remaining provisions
thereof shall not, in any way, be affected or impaired thereby.
18. NOTICES
18.1 Any notice or other document to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered by
hand at, or sent by registered post to, a party at the address for such
party set out below, or such other address as the party may from time
to time designate by written notice to the other.
18.2 Notices to the Customer shall be sent to the Company Secretary at the
Customer's registered office. Notices to ALCS shall be sent to Director
of Cash Development, ALCS, Xxxxxx Xxxx, Xxxxxx, X0X 0XX.
19. AUTHORITIES
19.1 ALCS may set off monies due to ALCS under this Agreement against any
sum which is or may become due to the Customer from ALCS or any other
company in the Alliance & Leicester plc Group of companies, whether
under this Agreement or otherwise.
19.1 The Customer hereby grants to ALCS during the period of this Agreement,
irrevocable authority to credit monies to, and debit monies from, the
Customers bank account as agreed under Clause 4.3 in accordance with
the provisions of this Agreement.
20. THIRD PARTY RIGHTS
20.1 This Agreement does not create any benefit, warranty, representation or
promise enforceable by any person not a party to it. In particular, the
Contract (Rights of Third Parties) Act 1999 shall not apply to this
Agreement and all rights on the part of, or for the benefit of, any
third party which may arise out of this Agreement under that Act are
hereby excluded.
21. APPLICABLE LAWS AND DATA PROTECTION
21.1 Both parties shall comply with all applicable laws, rules, regulations,
by-laws and codes of practise in performing their respective
obligations under this Agreement.
21.2 Each party shall (and shall procure that each of its sub-contractors
shall) comply with the provision and obligations imposed by the Data
Protection Xxx 0000 and the Data Protection Principles set out in the
Act, and data and material of any kind subject to the Act shall be
returned to the disclosing party on request. The parties acknowledge
that performance of a duty imposed by the Act shall not constitute a
breach of any obligation of confidentiality which may be owed to the
other party.
22. AUDIT AND PROVISION OF INFORMATION
22.1 ALCS shall have the right, at its own cost, to examine the Customers
books and records for the purposes of ascertaining that the financial
information pertaining to the Services has been provided accurately.
For that purpose, the Customer hereby grants to ALCS and its
professional advisors a right of access to the Customers premises,
systems and information on the giving of reasonable notice during
normal business hours. ALCS and its professional advisors shall have
the right to take copies of any financial books and records they
reasonably require and the Customer shall provide all necessary
facilities free of charge.
22.2 Without prejudice to ALCS' rights under Clause 10.3, the Customer shall
on ALCS' written request provide ALCS with all relevant extracts of all
of the Customers relevant agreements with LINK, Processing Agent(s),
Carrier(s) and other relevant sub-contractors so as to enable ALCS to
satisfy itself that the Customer has met its obligations under this
Agreement and that all relevant third parties are aware of ALCS's
ownership of the Notes and rights of access to the Notes under this
Agreement.
22.3 The Customer shall, on a quarterly basis, provide ALCS with a full and
complete set of management accounts for the previous quarter for the
Customer and any Affiliate(s) of the Customer requested by ALCS. Such
accounts shall be provided to ALCS within the same period as that
required by the Securities Exchange Commission in the United States of
America for provision of quarterly accounts.
22.4 The Customer shall, no later than six months after the end of each of
the accounting year of the Customer (and any relevant Affiliate of the
Customer if requested by ALCS), provide ALCS with a full and complete
set of each of the Customer's and the relevant Affiliate(s) respective
annual statutory accounts relating to that accounting year. ALCS may,
at its option and cost, require such statutory accounts to be
independently audited.
23 LAW
23.1 This Agreement shall be governed by and construed in accordance with
English law and both parties hereby submit to the exclusive
jurisdiction of the English courts.
Signed /S/ Xxxxx Xxxxx
___________________________________________
for and on behalf of
ALLIANCE & LEICESTER CASH SOLUTIONS LIMITED
By Xxxxx Xxxxx, Director of Cash Development
Signed /S/ Xxxxxx X. Xxxx
___________________________________________
For and on behalf of
TRM (ATM) LIMITED
By Xxxxxx X. Xxxx, Managing Director
(C) Alliance & Leicester Cash Solutions Limited 2002Ref: ALCS/Cash Sales
2/1/2002
