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SALE AND SUPPORT AGREEMENT
657333 B.C. LTD.
GARDEN EFFECTS ENTERPRISE
FEBRUARY 28, 2003
657333 B.C. LTD
THIS AGREEMENT made as of the 28th day of February, 2003
NOW THEREFORE, in consideration for the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.
1.01 In this Agreement, including the recitals, except as otherwise expressly provided or unless the context otherwise requires:
Adjunct Charge means the fees charged by a Host System to 657333 B.C. LTD for an Unsuccessful Transaction.
ATM Products means the ATM, the computer software, incorporating both object code and source code, that creates the on-line processing link and interface enabling ATM Transactions to be processed, and associated documentation and user manuals related thereto;
ATM Transaction means a function that is processed through the ATM, including without limitation cash withdrawals, deposits, transfers or other settlements, and balance inquiries effected through the use of the ATM;
ATM User means a Person that performs an ATM Transaction;
Force Majeure means any delay or failure by a party hereto to perform its obligations as required by this Agreement to the extent that such delay or failure to perform is caused by a reason or circumstance beyond such party's control, including, without limitation, acts or omissions of the other party, third party non-performance, and failure or malfunction of computer or telecommunications hardware, equipment or software, provided that such party could not have foreseen the specific reason or circumstance which caused the delay or failure at the time of the conclusion of this Agreement or could not reasonably have been expected to have avoided or overcome it or its consequences;
Host System means a centralized computer processing system accessed through 657333 B.C. LTD, or a processor used by 657333 B.C. LTD, that provides electronic funds transfer and data processing services necessary to operate the ATM;
Successful Transaction means an ATM Transaction that is processed by the Host System and the ATM user's bank.
Surcharge Fee means the fees received for a Successful Transaction by 657333 B.C. LTD from an ATM User's account, net of all payments made to Host Systems and banks;
Unsuccessful Transaction means an ATM Transaction that is not processed by the Host System or the ATM user's bank.
1.02 Headings of the Articles and Sections hereof are inserted for the convenience of reference only and shall not affect the construction or interpretation of this Agreement.
1.03 Words importing the singular number include the plural and vice versa and words importing gender include the masculine, feminine and neuter gender.
1.04 This Agreement is made pursuant to the laws of the Province of British Columbia and shall be construed, interpreted and enforced in accordance therewith.
1.05 If any of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
1.06 Subject to as hereinafter provided, this Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein.
Sale of ATM
2.01 Subject to the terms and conditions of this Agreement, 657333 B.C. LTD hereby agrees to sell and deliver to Purchaser, and Purchaser agrees to purchase from 657333 B.C. LTD , the ATM described in Schedule B. If Purchaser is purchasing the ATM with lease financing, 657333 B.C. LTD agrees to sell the ATM to Purchaser's leasing company provided that Purchaser promptly submits to such leasing company all documentation necessary to allow payment of the ATM upon delivery.
2.02 In consideration for the sale and delivery of the ATM, Purchaser shall pay to 657333 B.C. LTD the purchase price (the "Purchase Price") specified in Schedule B. Purchaser will pay late charges equal to 15% per month on any unpaid portion of the Purchase Price.
2.03 Delivery of the ATM to the Purchaser will be deemed to occur
2.04 Purchaser will pay the Purchaser Price to 657333 B.C. LTD on or before delivery of the ATM in accordance with Section 2.03, provided that, concurrently with full payment of the Purchaser Price, 657333 B.C. LTD will deliver the bill of sale for the ATM to the Purchaser, or where applicable, to its leasing company.
2.05 Title to and risk of loss, damage and destruction of the ATM will pass to Purchaser upon delivery of the ATM in accordance with Section 2.03.
2.06 Until the Purchaser Price is paid for in full, 657333 B.C. LTD reserves, and Purchaser hereby grants to 657333 B.C. LTD, a security interest in the ATM, and Purchaser agrees to execute and deliver to 657333 B.C. LTD all financing statements and necessary documentation to perfect such security interest.
Cash Loading Services
2.07 Purchaser will be responsible for ensuring that the ATM is periodically loaded with sufficient inventory and appropriate denominations of cash to meet the needs of ATM Users.
Appointment of Operator
2.08 Purchaser hereby appoints 657333 B.C. LTD, for the term of this Agreement, as its exclusive agent, and grants 657333 B.C. LTD the exclusive right, to provide the services set out in Schedule C in respect of the ATM in accordance with the terms of this Agreement. Purchaser grants to 657333 B.C. LTD all rights to custody and control of the ATM necessary to perform such duties.
2.10 657333 B.C. LTD will direct to Purchaser the fees set out in Schedule C which are collected by it as the operator of the ATM, less any fees that 657333 B.C. LTD is required to pay to third parties as rent for locating the ATM on the Premises.
2.11 657333 B.C. LTD will be entitled to retain all other fees collected by it through the operation of the ATM as payment for the services provided by it, all as set out in Schedule C.
2.12 Purchaser and 657333 B.C. LTD agree that 657333 B.C. LTD will provide Purchaser with monthly reports (the "Transaction Reports") as set out in Schedule C.
Support Services Fee
2.13 In consideration for the services provided by 657333 B.C. LTD pursuant to Sections 2.04 and 2.05 (the "Support Services"), Purchaser agrees to pay to 657333 B.C. LTD a fee (the "Support Services Fee") as set out in Schedule C.
2.14 Purchaser will pay Support Services Fees to 657333 B.C. LTD in arrears, on or before the last day of the month following the month in which the transactions occur. Purchaser will pay late charges equal to 1.5 % per month on any outstanding balances.
2.15 Purchaser agrees that 657333 B.C. LTD may deduct from the Surcharge Fees payable each month all fees owing to it by Purchaser under this Agreement. If 657333 B.C. LTD chooses to make such deduction, any Rental Fees remaining after all such deductions will be remitted to Purchaser as full payment of Rental Fees for such month. Where the Rental Fees are not sufficient to offset the fees owing to 657333 B.C. LTD by Purchaser under this Agreement, 657333 B.C. LTD may apply the full amount of Rental Fees towards payment of such fees and Purchaser will be obligated to pay the remaining balance owing to 657333 B.C. LTD pursuant to the terms of this Agreement.
2.16 For the settlement of transactions contemplated herein on behalf of Purchaser and for payment of fees and charges owing hereunder, Purchaser agrees to establish and maintain during the term of this Agreement a clearing account by executing the form set out on Schedule D and providing other documentation as necessary, and maintaining a clearing account balance sufficient, to permit 657333 B.C. LTD to credit or debit the clearing account and pay all amounts due to 657333 B.C. LTD under this Agreement.
2.17 Each party agrees and acknowledges that2.18
Representations and Warranties of Purchaser
3.01 Purchaser represents and warrants to 657333 B.C. LTD, and acknowledges that 657333 B.C. LTD is relying upon such representations and warranties in entering into this Agreement, that:
Representations and Warranties of 657333 B.C. LTD
3.02 657333 B.C. LTD represents and warrants to Purchaser, and acknowledges that Purchaser is relying upon such representations and warranties in entering into this Agreement, that:
3.03 The representations and warranties of each of Purchaser and 657333 B.C. LTD contained in this Agreement will continue in full force and effect for the benefit of the other until such time as the relevant statutory limitation period for their enforceability has expired.
Covenants of Purchaser
4.01 During the term of this Agreement, Purchaser will:
Covenants of 657333 B.C. LTD
4.02 During the term of this Agreement, 657333 B.C. LTD will:
5.01 Each party will keep the terms and conditions of this Agreement in strict confidence.
5.02 All equipment, correspondence, price lists, brochures, records, training and educational materials and other documents of prepared by a party to this Agreement (the "Disclosing Party") that are disclosed to the other party (the "Receiving Party") will remain the exclusive property of the Disclosing Party. The Receiving Party agrees to surrender all such documents to the Disclosing Party upon demand in the event of the termination of this Agreement.
Terms of Competition
5.03 Neither party nor any of its affiliates is prevented from engaging in any other business or activity for its exclusive benefit except as specifically stated in this Agreement, provided that such activity does not infringe the intellectual property rights of the other.
5.04 During the term of this Agreement and for a period of 6 months thereafter, Purchaser will not, without the prior written consent of 657333 B.C. LTD or in accordance with the terms of this Agreement, directly or indirectly, carry on or be engaged in or be concerned with or interested in any business similar to the business carried on by 657333 B.C. LTD, either individually or in partnership or jointly or in conjunction with any person.
5.05 Each party agrees that the restrictions contained in this Part are reasonable in order to protect the respective legitimate business interests of the parties and the parties hereby waive all defences to the strict enforcement of such restrictions.
5.06 Each party acknowledges that a breach by it of any covenants contained in this Part could result in damages to the other party to this Agreement which damages could not adequately be compensated for by monetary award. Accordingly, each party agrees that in the event of any such breach by such party, in addition to all other remedies available to any other party at law or in equity, such other party will be entitled as a matter of right to apply to a court of competent jurisdiction for such relief by way of restraining order, injunction, decree or otherwise, as may be appropriate, to ensure compliance with the provisions of this Agreement.
Survival of Covenants
5.07 The covenants and agreements contained in this Part will survive the termination of the remainder of this Agreement and will be separate and distinct covenants and agreements enforceable after the termination of this Agreement.
Limitation of Liability
6.01 Purchaser understands and acknowledges that 657333 B.C. LTD is only a reseller of the ATM and that the only warranty on the ATM is from the manufacturer thereof.
6.02 Except as expressly provided for in this Agreement, 657333 B.C. LTD will not be liable to Purchaser or any ATM Users for any direct, indirect, special, consequential, or punitive damages arising out of the use of the Host Systems in the operation of the ATM.
6.03 Unless expressly contained in this Agreement, no oral or written representation or statement made by 657333 B.C. LTD or any of its agents or employees including, but not limited to, any specifications, descriptions or statements contained in user guides provided to Purchaser
is binding upon 657333 B.C. LTD as a warranty or promise of performance. 657333 B.C. LTD does not make any warranties or promises, express or implied, with respect to the merchantability, fitness for use, condition, durability or suitability of the ATM and are not responsible for any patent or latent defects in the ATM or damages resulting there from.
6.04 Without prejudice to any other remedy available to a party (the "Indemnified Party") at law or in equity, each party (the "Indemnifying Party") will indemnify the Indemnified Party against any and all costs, losses, damages or expenses suffered or incurred by the Indemnified Party arising out of or relating to6.05
6.06 A party making a claim for indemnification pursuant to this Part will diligently take reasonable steps, short of litigation, necessary or desirable to obtain any insurance proceeds that are available to it form any insurer in respect of the matter for which a claim for indemnification is made. Any liability of the other party in respect of such claim will be reduced to the extent such insurance proceeds are received or would have been received but for want of diligence by the insured in claiming under such insurance (less, in each case, related expenses of collection). Nothing in this Section will be enforceable by an Indemnifying Party if it would materially impair the Indemnified Party's rights against its insurer.
6.07 Any claims hereunder must exceed $500 in the aggregate before any claim is made, in which event all damages or deficiencies may be claimed and not just such excess amounts.
No Other Compensation
6.08 Except as expressly provided in this Agreement, neither party will demand compensation of any kind from the other and each party will bear its own costs (including taxes), risks and liabilities arising out of its obligations and efforts under this Agreement. Without limiting the foregoing, 657333 B.C. LTD will not be liable to Purchaser, ATM Users or any other party for: 6.09
7.01 Neither party will be liable for its failure to perform any of its obligations under this Agreement due to an event of Force Majeure.
Elimination of Event of Force Majeure
7.02 A party will take all reasonable steps to eliminate an event of Force Majeure and, if possible, will perform its obligations under this Agreement as far as practical, but nothing herein will require the party to questions or test the validity of any law, rule, regulation or order of any governmental authority or to complete its obligations in any event of Force Majeure renders completion impossible.
Time Limits Extended
7.03 All time limits imposed by this Agreement will be extended by a period equivalent to the period of delay resulting from an event of Force Majeure provided that where such event of Force Majeure continues for a period longer than two months, this Agreement may be terminated by delivering written notice to the other party hereto and, if so terminated, Section 8.06 will apply.
Event of Default
8.01 In this Part, Event of Default, in relation to a party, means an event of default arising as a result of a party being subject to one or more of the following circumstances,
8.02 Subject to the other provisions of this Part, the initial term (the "Initial Term") of this Agreement continue in full force and effect for a term of 5 years from the date hereof
8.03 The Initial Term shall automatically be extended for successive additional ten-year periods, upon the same terms and conditions as set out herein, unless terminated on 90 days'
written notice in advance of the commencement of such subsequent term by either party to the other.
8.04 In addition to any other remedies it may have, and notwithstanding any other section in this Part, 657333 B.C. LTD may terminate all of its obligations as operator of the ATM under this Agreement on 14 days' written notice if:
8.05 In addition to any other remedies it may have, and notwithstanding any other section in this Part, Purchaser may terminate the 657333 B.C. LTD's ATM duties as operator of the ATM under this Agreement:
8.06 Upon termination of this Agreement in accordance with this Part, and in addition to any other remedies that a non-defaulting party may have:
Submission of Disputes
9.01 Either party may submit the dispute under this Agreement to arbitration in accordance with the terms of this Part.
9.02 All disputes submitted to arbitration pursuant to this Part will be decided by a single arbitrator appointed and acting under the Rules of the British Columbia International Commercial Arbitration Centre (the "BCICAC"). The arbitration award will be passed in writing, will contain the reasons for the award as well as a decision regarding the costs of arbitration, and will be final and binding upon the parties.
9.03 Each of the parties will continue to perform its respective obligations hereunder until a decision has been rendered by an arbitrator in accordance with this Part, unless the Agreement is terminated or expires in accordance with its terms.
9.04 Nothing in this Part will limit the rights of either party to apply to a court of competent jurisdiction for equitable relief by way of restraining order, injunction, decree or otherwise, as may be appropriate, to ensure compliance with the provisions of this Agreement pending final disposition of arbitration proceedings.
No Joint Venture, Partnership
10.01 This Agreement is not intended by the parties to constitute or create a joint venture or partnership. Neither party will have the authority to bind the other.
Independent Legal Advice
10.02 Each of the parties hereto acknowledges and confirms that it has been advised by the Corporation to obtain independent legal advice in respect of this Agreement and has either done so or waives its rights to do so.
10.03 Any notice, direction or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be well and sufficiently given or made if:
Any notice so given or made shall be deemed to have been given or made on the day of delivery, if delivered, and on the day of sending if sent by telex, telegraph, telecopy or other means of recorded electronic communication (provided such day of delivery or sending is a business day and if not then on the first business day thereafter). Any party to this Agreement may change its address for notice by notice to the other parties to this Agreement given in the manner set out in this Section.
10.04 This Agreement, including the Schedules hereto, constitutes the entire agreement between the parties and supersedes every previous agreement, communication, expectation, representation or understanding, whether oral or written, express or implied, statutory or otherwise, with respect to the subject matter hereof.
10.05 Time shall be of the essence in this Agreement.
10.06 Except as otherwise provided herein, this Agreement and the rights of any party to this Agreement may not be assigned or made the subject of any trust in favour of any person without the prior written consent of all other parties to this Agreement.
10.07 No indulgence or forbearance by any of the parties to this Agreement shall be deemed to constitute a waiver of such parties' rights to insist on a performance in full and in a timely manner of all covenants contained herein. Any waiver, in order to be binding upon any party must be expressed in writing. No waiver of any provisions, conditions or covenants shall be deemed to be a waiver of the rights of any party to require full and timely compliance with the other terms, conditions or covenants, or with the same terms, conditions or covenants at a time thereafter.
10.08 This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable thereto. Subject to Part 9, the parties submit and adjourn to the jurisdiction of the courts of the Province of British Columbia.
10.09 This Agreement may only be amended by written agreement entered into and executed by all parties to the Agreement at the effective date of the amendment.
10.10 This Agreement maybe executed in several counterparts or by facsimile signature, each such counterpart and facsimile constituting an original and all of which, when so executed, together shall constitute this Agreement, and notwithstanding their date of execution such counterparts and facsimiles shall be deemed to bear the date first written above.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first written above.
657333 B.C. LTD
657333 B.C. LTD will use commercially reasonable efforts to find one or more appropriate locations to situate the ATM [and will arrange for the installation of the ATM therein]. While 657333 B.C. LTD will make the final determination in the selection of the premises, 657333 B.C. LTD will consider in good faith all reasonable suggestions of the Purchaser in making its determination.]
657333 B.C. LTD may, in its discretion, remove any ATM from any location at any time should it determine, in its sole discretion, that to do so would be necessary or advisable, including without limitation, where there are low ATM Transaction volumes occurring at such location. If 657333 B.C. LTD should so remove an ATM, it will use commercially reasonable efforts to find one or more alternate and more appropriate locations to situate such ATM.]
Garden Effects Enterprise will received $1.00 of the current $2.00 Surcharge. 657333 BC Ltd. will receive the remaining amount of the surcharge.
AUTHORIZATION AGREEMENT FOR ELECTRONIC FUNDS TRANSFER
Bank Name: __________________ Telephone: _________________________ Date Opened:__________________
I/We hereby authorize 657333 B.C. LTD (657333 B.C. LTD ) or its designated processor to initiate credit and/or debit entries and to initiate if necessary reversing entries and adjustment for any original entries made in error to my/our Checking Account indicated below and the depository names below, hereinafter called Depository, to credit and/or debit the same to such account.
Bank Name: _________________________________ Branch: _____________________________
Transit/CBA Number: _________________________ Account Number: ______________________
This authority is to remain in full force and effect until 657333 B.C. LTD has received written notification from me and/or a designated officer of the business of its termination in such time and in such manner as to afford 657333 B.C. LTD and Depository a reasonable opportunity to act on it.
(Attach a Voided Check)
To induce 657333 B.C. LTD 's reliance thereon, the undersigned certifies the accuracy of all the foregoing information and authorizes Bank, Credit Bureau or other investigative agency employed by 657333 B.C. LTD or its designated processor to investigate references given to 657333 B.C. LTD or statements or other data contained herein obtained from Business or from other persons pertaining to Business' credit or financial responsibility or accuracy of any of the foregoing information. I/We further agree to notify 657333 B.C. LTD promptly of any and all changes, which may occur from time to time in the information and statements, contained herein.
Owner/Officer Signature:________________________ Date: ________________________
Name on Account: _____________________________ Account Number: _____________