Terms and Conditions
1. Up-Front Fee: If, (a) during any Measurement Period MERCHANT fails to reach the Performance Threshold by more than thirty percent (30%), (b) during the term of this Agreement, MERCHANT commits any willful or intentional act, the purpose of which is to curtail the number of transactions (including, but not limited to, restricting access to the applicable ATMs or turning off the applicable ATMs) or (c) if at any time during the term, any of MERCHANT’s representations and warranties contained herein are found to be inaccurate or untrue in any respect, then MERCHANT shall promptly repay the entire Up Front Fee amount to COMPANY.
2. Under no circumstances whatsoever shall MERCHANT share or otherwise pay any person or entity that recruited or otherwise connected MERCHANT to COMPANY, the Upfront Fee, or any portion thereof, or otherwise attempt to frustrate the purpose of this provision.
In the event that MERCHANT fails to reach the Performance Threshold during any Measurement Period by the following percentages, MERCHANT shall promptly repay the corresponding percentage of the Up Front Fee as set forth below:
|Performance Threshold Shortage||Percentage of Up Front Fee Repayment|
|Up to 10%||0%|
|11% – 20%||25%|
|21% – 30%||50%|
With respect to any delinquent amounts owed by MERCHANT to COMPANY related to or in connection with this Agreement, such delinquent amounts shall accrue interest at the rate of 1.5% per month.
2. Advance: If, (a) during the term of this Agreement, MERCHANT’S share of the “Transaction Processing Fee” (as discussed in Section 5 below) does not equal or exceed the Advance (the “Shortfall”), MERCHANT shall promptly pay the Shortfall amount to COMPANY, (b) during the term of this Agreement, MERCHANT commits any willful or intentional act, the purpose of which is to curtail the number of transactions (including, but not limited to, restricting access to the applicable ATMs or turning off the applicable ATMs) or (c) if at any time during the term, any of MERCHANT’s representations and warranties contained herein are found to be inaccurate or untrue in any respect, then MERCHANT shall promptly repay the Advance amount to COMPANY.
Under no circumstances whatsoever shall MERCHANT share or otherwise pay any person or entity that recruited or otherwise connected MERCHANT to COMPANY, the Advance, or any portion thereof, or otherwise attempt to frustrate the purpose of this provision.
3. Transaction Processing Fees: COMPANY reserves the right from time to time and at any time to increase or decrease the amount of the above referenced surcharge or payment upon providing MERCHANT with thirty (30) days prior written notice, provided such increase or decrease is related to an increase or decrease of the costs or revenues incurred by or paid to COMPANY for providing ATM services.
COMPANY shall not have any payment obligations to MERCHANT unless and until the number of ATM transactions reaches the Threshold Amount of Transactions, at which point COMPANY will only be liable to pay MERCHANT for those transactions over and above Threshold Amount of Transactions.
4. Installation; Moving and Re-Installation: COMPANY agrees to install the ATM, wraps, signage and network labels at no charge to To the extent that MERCHANT desires to move the ATM to another location and COMPANY accepts such request, COMPANY shall move and re-install the ATM at the new location at MERCHANT’s sole cost and expense.
5. Maintenance, Repair and Removal: COMPANY and/or its AuthorizedServiceProvideragreetoprovideallpartsandlaborfortherepairandmaintenanceofthe ATM. Upon termination of this Agreement, the COMPANY shall remove theATM and any other of its devices or machines within a reasonable amount of time thereafter; provided, however, thatMERCHANTacknowledges that there may be some minor wear and tear in and around the Location and that the COMPANY shall not have any responsibility torepair such wear and
|A. In the event of any ATM failure, damage, or other problem, MERCHANT shall notify COMPANY and/or Authorized Service Provider within twenty-four (24) hours of the occurrence of the failure, damages, or other problems.|
|B. COMPANY and/or Authorized Service Provider shall respond within twenty-four (24) hours of such notice.|
|C. COMPANY and/or Authorized Service Provider shall at any reasonable time and at all times during business hours have the right to enter the Premises for the purpose of inspecting, repairing, maintaining, or upgrading the ATM (and any other of its devices or machines) and observing its use.|
6. Cash and Supplies: In the event that MERCHANT breaches or fails to comply with any term or provision under the Prosperity Application and Agreement (each, a “Prosperity Breach”), MERCHANT agrees to indemnify, defend and hold the COMPANY harmless from any losses, damages, costs, expenses (including attorneys’ fees) incurred by the COMPANY arising from or related to, a Prosperity Breach.
7. Bank Branding: COMPANY will have the right to enter into branding agreements with financial institutions and to place branding signage on the ATM and on any available interior or exterior
8. Digital Screens; Marketing: COMPANY has the right, at its cost, to install digital screens on top of its ATMs to display advertising and to install such other devices within the Location to enable proximity and other marketing uses and functionalities. MERCHANT will be entitled to receive forty percent (40%) of the net advertising revenue (after directly related expenses) derived from these screens or other marketing devices or tools, payable on a monthly basis no later than fifteenth (15th) day after the end of the preceding month.
9. Communication & Electrical Requirements: MERCHANT shall, at its own expense, contract for and provide one (1) operating dedicated electrical power outlet (110V) within two (2) feet of the Location; provided, however, that if additional electrical outlets or other power sources are required MERCHANT and COMPANY shall evenly split the costs of obtaining and installing such additional source. MERCHANT shall pay monthly charges incurred in connection with such electric and shall take all commercially reasonable steps to ensure uninterrupted service. COMPANY will provide cellular modem and monthly data service at no charge to MERCHANT.
10. Ownership: COMPANY represents that they, or entities affiliated with COMPANY, are the owners of the ATM and any other devices or machines installed within the Location. As such, MERCHANT hereby acknowledges COMPANY’s ownership of the ATM(s) and agrees to cooperate and take such reasonable actions during the term of this Agreement to affirm such ownership, including, but not limited to, not contesting COMPANY’s right to file a UCC-1 on the ATM(s) affirming
11. MERCHANT’s Sale of Business: In the event that (i) the MERCHANT transfers or moves its business from the Premises to a new premises, (ii) sells substantially all of its assets or (iii) any owners of Equity Interests transfer any of the Equity Interests to anyone or any entity that is not currently an owner of the Equity MERCHANT shall notify the COMPANY by certified mail not less than thirty (30) days prior to any such event. In such event, and at COMPANY’s sole option, this Agreement may be automatically deemed amended to apply to the MERCHANT’s new premises or the transferees of the Equity Interests for the remaining term of this Agreement unless otherwise agreed to by the Parties in writing. The MERCHANT shall assume all costs and expenses to transfer and install the ATM and any other devices or machines in the MERCHANT’s new premises, which transfer and installation shall be effected by COMPANY or by a third party provider of COMPANY’s choosing.
12. Termination: Upon a termination or expiration of this Agreement, COMPANY shall: (a) immediately pay to MERCHANT all amounts due and owing under this Agreement through the date of termination or expiration as the case may be, and (b) use commercially reasonable efforts to promptly remove its ATM(s) and other devices or machines from the Premises. MERCHANT: (i) shall immediately pay to COMPANY all amounts due and owing COMPANY under this Agreement as of the date of termination or expiration, (ii) will continue to provide COMPANY unimpeded access to the Location and Premises during business hours in order to facilitate the prompt removal of the ATM(s), (iii) shall continue to secure the ATM and other devices or machines as required hereunder, and (iv) shall immediately surrender the ATM and other devices or machines in good working order to COMPANY, upon COMPANY’s request.
13. Attorney Fees: If suit or action is instituted to enforce or interpret any of the terms of this Agreement, the COMPANY may recover reasonable attorneys’ fees and court costs from MERCHANT.
14. Disclaimer: MERCHANT ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE ATM, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. COMPANY AND/OR PROCESSOR SHALL IN NO EVENT BE RESPONSIBLE FOR ANY LOST PROFITS OR DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES THAT MERCHANT MAY INCUR. COMPANY’S AND/OR PROCESSOR’S SOLE LIABILITY TO MERCHANT HEREUNDER, EXCEPT AS OTHERWISE PROVIDED, AND SHALL BE TO CURE ANY BREACH IN A TIMELY MANNER.
15. Right of Offset: COMPANY shall have the right to offset, on a dollar-for-dollar basis, any and all amounts that MERCHANT owes to COMPANY from any amounts owed by COMPANY to MERCHANT hereunder, including, but not limited to, “Transaction Processing Fees” contemplated herein.
16. Assignment; Transfer of Equity Interests: MERCHANT shall not assign, delegate or in any way dispose of all or any part of its rights or obligations under this Agreement without the prior written consent of the COMPANY; provided, however, COMPANY is permitted to assign this Agreement. In addition, MERCHANT shall not permit any of the Equity Interests to be transferred without obtaining the COMPANY’s prior written consent.
17. 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.
18. Governing Law; Forum Selection, and Waivers: The parties agree that this Agreement is accepted and executed in the State of New York. This Agreement will be governed by and enforced in accordance with the laws of the State of New York, without regard to principles of conflict of laws to the extent such principles would require application of any other law. Both parties agree that all legal proceedings and any other action or claim arising out of or relating to this Agreement, or a transaction that is subject, or relates in any way, to this Agreement, whether based in contract, statute, tort or otherwise, shall be held in the mandatory and exclusive forum and venue of the Supreme Court of New York, County of New York or, if the dispute is subject to federal court jurisdiction, in the United States District Court for the Southern District of New York. This forum selection clause and choice of law provision shall be construed as mandatory, rather than permissive, and no action may be brought in any other state or jurisdiction. The parties hereby waive any claim against, or objection to, venue in, and in personam jurisdiction of, the Supreme Court of New York, County of New York. The parties hereby irrevocably waive any objection, defense, and any right of immunity on the grounds of venue or the inconvenience of the forum, or to the jurisdiction of such courts, or from the execution of judgments resulting therefrom. ALL PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY LAWSUIT ARISING OUT OF, OR RELATED, IN ANY WAY, TO THIS AGREEMENT, OR ANY TRANSACTION ARISING OUT OF, THAT IS THE SUBJECT OF, OR RELATES IN ANY WAY TO THIS AGREEMENT.
19. Severability: In the event any provision of this agreement is determined to be unenforceable, the balance of the agreement shall nonetheless be enforceable and MERCHANT agrees that it shall waive trial by jury of any disputes
20. Security Interest; UCC Financing Statements: At the option of COMPANY, MERCHANT or COMPANY shall execute, deliver, file and record (in such manner and form as COMPANY shall require, (i.) all financing statements and continuation statements, (ii.) all carbon, photographic or other reproductions of financing statements, continuation statements or this Agreement (which shall be sufficient as a financing statement hereunder), and (iii.) all specific assignments or other papers that may be necessary or desirable, or that COMPANY may request, in order to create, preserve, perfect or validate any security interest granted hereunder or to enable COMPANY to exercise and enforce its rights hereunder with respect to any of the Collateral. In addition, in the event that any of the Collateral consists of or is represented by instruments or other evidences of ownership such as would require physical possession of same in order to perfect the security interests therin, MERCHANT shall promptly, at its sole expense, deliver the same to COMPANY upon request, with any necessary endorsements theron. COMPANY reserves the right to obtain reimbursement from MERCHANT of all costs associated with the filing of any financing statements, continuation statements or amendments therto and MERCHANT ratifies the filing of any financing statement filed by COMPANY prior to the effectiveness therof.