ATM Maintenance Agreement - EFMARK Service Co. of Illinois Inc. and Cardtronics LP
ATM MAINTENANCE AGREEMENT
This ATM Maintenance Agreement ("Agreement") is made this 28th day of
February, 2003 by and between EFMARK Service Company of Illinois, Inc., an
Illinois corporation headquartered in Westmont, Illinois ("ESC") and
Cardtronics, LP, a Delaware limited partnership headquartered in Houston, Texas
("Cardtronics").
1. Agreement.
1.1. This Agreement establishes the terms and conditions under
which Cardtronics will purchase both first and second line
maintenance services for automated teller machines that are
either owned, leased, operated, or managed by Cardtronics and
are further identified on Schedule A, as may be amended by
agreement of the parties from time to time (the "ATMs" or the
"ATM Locations"). ESC will provide each ATM Location
designated on Schedule A, both First Line Maintenance ("FLM")
and Second Line Maintenance ("SLM") as such services are
collectively referred to as the "Maintenance Services" and are
described on Schedule B -- Scope of Services. During the term
of this Agreement, ESC will have the exclusive right to
provide the Maintenance Services designated for each such ATM
Location; provided, however, Cardtronics may add or remove
ATMs from Schedule A without any penalty or increase in
Pricing (as defined below) so long as the aggregate number of
ATMs listed on Schedule A exceeds * .
1.1.1. Throughout the term of this Agreement, ESC will
utilize Cardtronics as its primary source for all
repair parts and components ("Replacement Parts")
used in the performance of ESC's duties hereunder. To
facilitate an efficient supply of parts to ESC, on a
monthly basis Cardtronics will provide ESC a print
out of all available Replacement Parts and the per
item cost for each. ESC must purchase all Replacement
Parts on an `as needed' basis solely from Cardtronics
so long as such Replacement Parts are available
through Cardtronics; provided, further, however that
Cardtronics must provide such Replacement Parts at a
price that is not higher than other supply sources.
1.1.2. Cardtronics warrants to ESC that should a Replacement
Part prove defective by reason of improper
workmanship or materials, Cardtronics will repair or
replace the defective Replacement Part with new or
factory reconditioned parts without charge for parts
or labor for a period of ninety (90) days after the
original installation of the Replacement Part. This
remedy shall be the exclusive remedy for breach of
this warranty. EXCEPT AS OTHERWISE STATED IN THIS
AGREEMENT, CARDTRONICS EXPRESSLY DISCLAIMS ANY
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES AS
TO THE REPLACEMENT PARTS, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
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MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
All Replacement Parts will shipped to ESC's facility
in Evansville, Wisconsin.
1.2. If designated on Schedule A with respect to an individual ATM
Location, all requests for Maintenance Service at that ATM
Location must in the first instance be directed to a "Help
Desk" maintained by Cardtronics at its sole cost and expense.
Cardtronics' obligations and the procedures with respect to
the operation of the Help Desk are described in Schedule C.
1.2.1. Cardtronics will use its best efforts to resolve
service requests at the Help Desk level. It is
anticipated that certain FLM requests can be resolved
at the Help Desk level without ESC's intervention.
1.2.2. For any service requests that cannot be resolved,
Cardtronics will initiate a service request to ESC
according to the procedures specified in Schedule C.
ESC will have no obligation to respond to requests
for service that are not initiated according to those
procedures.
1.2.3. Cardtronics will notify ESC within twenty-four (24)
hours of any discontinuance of Help Desk operations,
whether such discontinuance is expected to be
temporary or permanent in nature. Absent ESC's
advance written consent, it will be a material breach
of this Agreement for Cardtronics to discontinue its
Help Desk operations, in which case ESC may at its
option immediately terminate this Agreement with
respect to some or all of the ATMs in the event that
Cardtronics fails to reconstitute the Help Desk
within three (3) business days of its discontinuance.
2. Term and Renewal. The term of this Agreement will be for a period of
forty-two months, commencing on February 1, 2003 and expiring on July
31, 2006 (the "Initial Term").
2.1. THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR ADDITIONAL ONE (1)
YEAR PERIODS, UNLESS A PARTY GIVES THE OTHER WRITTEN NOTICE
THAT THIS AGREEMENT IS TO BE TERMINATED AT THE END OF THE
CURRENT TERM. SUCH WRITTEN NOTICE MUST BE GIVEN AT LEAST
NINETY (90) DAYS PRIOR TO THE END OF THE INITIAL TERM OR ANY
RENEWAL TERM.
2.2. If any party gives notice of non-renewal, all services
provided pursuant to, and all rights and obligations of the
parties described in, this Agreement will continue until
either the expiration date of the then current term or renewal
term or a date mutually agreed upon by the parties. Any
Maintenance Services provided after any such expiration date
will be provided at the then-current contract rates.
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3. Pricing and Payment.
3.1. For each ATM listed on Schedule A, Cardtronics shall pay ESC
the sum reflected on Schedule A, exclusive of any sales,
excise or use taxes, each month during the Initial Term or any
renewal term of this Agreement. In the event that two hundred
or more ATMs are added or removed during the course of any
month, the monthly charges for those ATMs will be prorated by
multiplying the number of days of that month each ATM was
installed at the identified location and dividing that sum by
the number of days in said month. Except as provided for in
the immediate preceding sentence, no monthly charge or credit
shall be allowed for ATMs that may be added or dropped during
any month, and such changes to Schedule A shall not take
effect until the start of the next month. Furthermore, except
as may be explicitly provided in this Agreement or in Schedule
A, there will be no adjustment to any Pricing, no surcharge or
additional cost, nor any add-on fees or extra work charges
imposed upon Cardtronics unless it has specifically authorized
such in writing.
3.2. Consistent with the Pricing set forth in, and the scope of
service described in Schedule B, Cardtronics will pay ESC for
selected FLM and SLM Services monthly in advance; provided,
however, that until ESC has paid the Deferred Payment as
defined in the Inventory Purchase Agreement executed by the
parties on this same date, Cardtronics shall make its payments
in arrears. ESC will invoice Cardtronics for such services
thirty (30) days prior to each payment due date. ESC will
invoice Cardtronics for Billable Call Maintenance (as defined
on Schedule B) as those services are rendered.
3.3. All invoices must be paid in full by Cardtronics within thirty
(30) days of receipt unless the invoice (or a portion of the
invoice) is disputed by Cardtronics. Should an invoice (or
portion of the invoice) be disputed by Cardtronics,
Cardtronics must notify ESC within thirty (30) days of receipt
and make a reasonable effort to resolve the alleged
discrepancy.
3.4. Any undisputed portion of an invoice must otherwise be paid in
full. Notwithstanding the provisions of Section 9 below
("Termination"), ESC may terminate this Agreement upon twenty
(20) days written notice for a failure to pay any undisputed
invoice, or any undisputed portion of an invoice if
Cardtronics fails to pay such undisputed amount prior to the
expiration of such twenty (20) day period.
4. Insurance. ESC will maintain basic comprehensive general liability
insurance coverage in the minimum amount of $1,000,000.00 per
occurrence and $2,000,000.00 in the aggregate, automobile liability
coverage in the minimum amount of $1,000,000.00 combined single limit,
and umbrella/excess liability coverage in the minimum amount of
$5,000,000.00. ESC will also maintain in force worker's compensation in
accordance with the various states in which ESC's employees perform the
services under this Agreement. Upon Cardtronics' request, ESC will
provide certificates evidencing such insurance coverages, plus evidence
of its workers' compensation insurance as required by
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law. All such policies must name Cardtronics as an additional insured,
and prohibit any cancellation or modification thereof unless
Cardtronics is provided at least thirty (30) days written notice of
such intended cancellation or modifications. Each party and each
party's insurer will waive rights of subrogation against the other
party and its insurer. Each party agrees to promptly notify the other
in writing of any claim or loss after any potentially insurable loss is
discovered. All parties agree to furnish satisfactory and reasonable
proof of such loss, and to assist (to the extent possible) any
insurance carrier in recovery of such loss.
5. Indemnification. Each party will indemnify and defend the other party,
their officers, employees and agents against and hold them harmless
from, without limitation, any and all liabilities, injury, death,
penalties, losses, costs, damages, claims, expenses, attorneys' fees,
expenses of litigation, suits, judgments, liens and encumbrances
brought, suffered or incurred by the other party or third parties
(collectively, "Claims") attributable to the respective acts or
omissions of such party, their employees, officers, agents or
subcontractors, while engaged in the performance of their duties under
this Agreement; excluding however, Claims to the extent that they arise
directly from the gross negligence or willful misconduct of the other
party, its officers, employees, or agents. Each party will give prompt
notice of any such Claim and will reasonably cooperate in the defense
of such Claim(s).
6. Losses and Liability.
6.1. Except as provided elsewhere in this Agreement, ESC will not
be liable for any loss caused by or resulting from:
6.1.1. Any damage or loss caused to an ATM or its contents
when due to theft or damage by others who are not a
party to this Agreement, except where the loss or
damage is the result of the negligent, reckless or
intentional acts of ESC, its agents, or its
employees.
6.1.2. Any damage or loss to an ATM or its contents where
there is evidence of forced entry, except where the
loss or damage is the result of the intentional act
of ESC, its agents, or its employees.
6.2. With regard to any ATM covered hereunder, Cardtronics will
immediately furnish ESC a copy of any ATM activity record,
including network and alarm records, whenever so requested.
6.3. Should an ESC employee, subcontractor or agent take currency
from an ATM using keys, combinations or other means of access
(including specialized training for the performance of duties
under this Agreement), ESC will be liable to Cardtronics for
such loss to a maximum dollar value of one hundred thousand
dollars ($100,000.00) for each incident at any given ATM;
unless Cardtronics has given notice to ESC of a particular ATM
identified on Schedule A that routinely contains more than
$100,000.00 in cash and said notice has specified the amount
of cash routinely loaded in that ATM, whereupon ESC's limit of
liability for any
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such ATM shall be the lesser of (i) $200,000.00, or (ii) the
actual cash load. ESC will pay such loss to Cardtronics within
thirty (30) days of the date Cardtronics gives ESC written
notice of such loss.
6.4. Should an ESC employee, subcontractor or agent while
performing duties under this Agreement fail to secure any ATM
and as a result of such failure the contents of the ATM are
removed and taken by a third party, then ESC will be liable to
Cardtronics for such lost contents to a maximum dollar amount
of one hundred thousand dollars ($100,000.00) for each
incident at any ATM; unless Cardtronics has given notice to
ESC of a particular ATM identified on Schedule A that
routinely contains more than $100,000.00 in cash and said
notice has specified the amount of cash routinely loaded in
that ATM, whereupon ESC's limit of liability for any such ATM
shall be the lesser of (i) $200,000.00, or (ii) the actual
cash load. ESC will pay such loss to Cardtronics within thirty
(30) days of the date Cardtronics gives ESC written notice of
such loss.
6.5. ESC will use good faith, commercially reasonable efforts to
recover the amounts taken as a result of a third party
perpetrating any theft, burglary, or other wrongful removal
for which ESC may bear responsibility. Upon payment by ESC of
any amounts to Cardtronics under this Section 6, ESC will be
subrogated to Cardtronics' rights to the extent of such
payment. Should Cardtronics subsequently recover amounts
associated with that loss that have been previously reimbursed
to Cardtronics by ESC, then Cardtronics must promptly pay such
subsequently recovered amounts to ESC.
6.6. Each party will cooperate and assist the other with any
reasonable requests in the pursuit, investigation, and
recovery of losses, and will assign any rights of recovery as
may be required.
6.7. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFIT, OR
LIABILITY TO THIRD PARTIES, HOWEVER CAUSED, WHETHER BY THE
NEGLIGENCE OF SAID PARTY OR OTHERWISE.
6.8. Each of the parties hereto recognized that in the event of a
breach by one of the parties, the calculation of damages, if
any, that may result as a consequence of such breach would be
difficult and impractical to determine. Accordingly, the
parties hereby stipulate and agree that, save and except for
the recovery of attorneys' fees and interest as provided in
Section 10.7 below, in the event either party's breach of this
Agreement results in the termination hereof, the sole and
exclusive remedy, whether in contract, tort or equity, for the
non-breaching party shall be the recovery of Liquidated
Damages. Liquidated Damages are hereby defined as that sum of
money that is equal to: (i) $7.00; (ii) multiplied by the
number of ATMs covered hereunder at the time of said breach,
(iii) with such product furthered multiplied by the lesser of
(a) the number of months remaining in the then current term or
(b) 12 months. This Liquidated Damage clause does
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not release or relieve ESC of any liability that may accrue to
it under Sections 6.3 and 6.4 above.
7. Confidentiality.
7.1. The parties acknowledge that by reason of their relationship
under this Agreement, they may have access to Confidential
Information of the other. As used in this Agreement,
"Confidential Information" means the information and materials
relating to the other's business, plans, customers, software
technology, and marketing strategies that are confidential and
of substantial value to the other, which value would be
impaired if such information were disclosed to third parties.
7.2. Each party agrees that it will not use or disclose
Confidential Information other than for the purpose for which
it was disclosed by the other. Each party further agrees that
(a) it will not use in any way for its own account nor for the
account of any third party, nor disclose to any third party,
any Confidential Information revealed by the other, and (b) it
will take every reasonable precaution to protect the
confidentiality of the Confidential Information. Subject to
these restrictions, a party may disclose Confidential
Information to its employees, agents and subcontractors so
long as such information is necessary for those employees,
agents and subcontractors to perform their respective jobs or
tasks called for in this Agreement. Each party is responsible
for ensuring that all of its employees, agents or
subcontractors comply with the provisions set forth in this
Section 7.
7.3. In the event of cancellation, expiration or termination of
this Agreement, there will be no use or disclosure by a party
of any Confidential Information in its possession, and all
confidential materials will be returned to the other or
destroyed. Upon any breach or threatened breach of this
section, a party will be entitled to injunctive relief, in
addition to any other available remedies.
8. Subcontracting.
8.1. ESC cannot assign this Agreement for the purpose of
subcontracting its duties and responsibilities without the
prior written consent of Cardtronics, which will not be
unreasonably withheld, provided however, that Cardtronics may
withhold its consent to subcontract duties and
responsibilities to a subcontractor who is a competitor of
Cardtronics.
8.2. Following Cardtronics' approval of any subcontractor and prior
to the performance of any work by said subcontractor, Schedule
8.2 (list of Approved Subcontractors) shall be amended by the
parties hereto. Furthermore, each subcontractor must provide
proof of insurance in accordance with the requirements of
Section 4 above.
8.3. ESC retains full responsibility for the performance of
Maintenance Services under this Agreement. The approval of any
subcontractor by Cardtronics does not in any way relieve ESC
from full responsibility for all acts and negligence of its
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subcontractors, or of any person, group or organization
directly or indirectly employed by such sub-contractor;
provided, however, that to the extent Cardtronics has
separately contracted with any of those subcontractors for the
provision of services other than Maintenance Services, ESC
will not be responsible for any failure to provide those other
services.
9. Termination.
9.1. In the event a party materially defaults in the performance of
any of its duties or obligations, and the default is not
substantially cured within thirty (30) days after notice is
given to the defaulting party specifying the default, then the
party not in default may, by giving notice to the defaulting
party, terminate this Agreement for cause.
9.2. Any party, in its sole discretion, may immediately terminate
this Agreement upon written notice to the other if the other
(a) files or there is filed against any of them any
bankruptcy, reorganization or other proceeding under any
bankruptcy or insolvency law; (b) is unable to pay its debts
as they mature; or (c) makes an assignment for the benefit of
its creditors.
10. Miscellaneous.
10.1. Entire Agreement. This Agreement, including all schedules and
exhibits and other writings referred to herein constitutes the
entire agreement of the parties with respect to the subject
matter hereof, and supersedes all prior understandings or
agreements, written or oral, on this subject. This Agreement
may only be altered, amended or superseded by a writing agreed
to and signed by the parties.
10.2. Interpretation. The language used in this Agreement will be
deemed to be the language chosen by the parties to express
their mutual intent, and any rule that a contract is to be
constructed against the drafter will not apply to this
Agreement. The section headings of this Agreement are solely
for convenience and will not be considered in its
interpretation. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be
effective and valid under applicable law. However, in the
event that any term or provision of this Agreement is deemed
or held to be invalid, illegal or unenforceable, the remaining
terms and provisions of this Agreement will nevertheless
continue and be deemed to be in full force and effect.
10.3. Survival. Upon the cancellation, expiration or termination of
this Agreement, all of the following Sections will survive: 3
("Payment and Pricing"); 5 ("Indemnification"); 6 ("Losses &
Liability"); 7 ("Confidentiality"); and 10.5 ("Dispute
Resolution"). In addition, any provisions relating to the
enforcement of any of the surviving provisions and any
remedies available under this Agreement also will survive.
10.4. Relationship of the Parties. The relationship of the parties
under this Agreement is one of independent contractors, and
not one of fiduciaries. Under no
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circumstances will the relationship between the parties be
construed to be that of a joint venture or partners, nor is it
intended that the relationship be subject to subchapter K of
the Internal Revenue Code. No party will hold itself out as,
or be deemed to be, an employee, agent, partner or joint
venturer of the other, and each party's authority will be
limited to the matters expressly set forth in this Agreement.
There are no third-party beneficiaries who are intended to
benefit in any way from the terms and provisions of this
Agreement.
10.5. Dispute Resolution. All disputes arising out of or relating to
this Agreement will be settled by arbitration before a sole
arbitrator under the then current Commercial Arbitration Rules
and, if necessary, the Rules for Emergency Orders of
Protection, of the American Arbitration Association. The duty
and right to arbitrate will extend to any employee, officer,
shareholder, agent or affiliate of the parties.
10.5.1. The choice of law provisions in Section 10.6 will
govern the interpretation and enforcement of this
Agreement; however, the Federal Arbitration Act will
govern issues of arbitrability.
10.5.2. Any arbitration proceeding must be instituted: (a)
with respect to any dispute arising out of the
collection of any debt owed by a party, within two
years after the date of the last payment made or
received by the instituting party; and (b) with
respect to any other dispute, within two years after
the event giving rise the dispute occurred,
regardless of whether a party knew of such event.
Failure to institute an arbitration proceeding within
such a period will constitute an absolute bar and
waiver of the institution of any proceedings.
10.5.3. All rights and remedies provided for in this
Agreement will be cumulative and in addition to any
other rights or remedies the parties may have at law
or in equity. Nonetheless, the arbitrator will have
no authority to award damages in excess of the
limitations and exclusions set forth in this
Agreement, or to otherwise grant relief inconsistent
with the terms of this Agreement. The decision and
award of the arbitrator will be final and binding,
and the award so rendered may be entered in any court
having appropriate jurisdiction.
10.6. Governing Law; Venue. This Agreement will be governed by and
construed in accordance with the laws of the State of Texas
applicable to agreements made and to be performed entirely
within that State, without regard to that State's conflict of
law provisions. The exclusive venue for any arbitration or
legal proceeding arising out of or relating to this Agreement
will be in the county of the party who is not initiating the
arbitration, unless otherwise agreed in wilting by the
parties. Each party irrevocably waives any objection that it
may have at any time to those venues.
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10.7. Attorneys' Fees; Interest. In the event of any arbitration or
litigation between the parties arising out of this Agreement,
the arbitrator and/or court will award the prevailing party
its costs and reasonable expenses and attorneys' fees
resulting from such proceedings in addition to any other
relief awarded. The unpaid balance on any undisputed invoice,
or any undisputed portion of an invoice, will accrue interest
at a rate of one and one-half percent (1.5%) per month.
Additionally, should either party present a liquidated Claim
to the other party and said party fails to pay said Claim
within thirty (30) days of the date presented, the Claim shall
accrue interest at a rate of one and one-half percent (1.5%)
per month. Notwithstanding any provision in this section or
any other section of this Agreement, neither party shall
charge nor receive interest at any rate that it higher than
the highest rate allowed by applicable state or federal law.
10.8. Force Majeure. Unless specifically provided for elsewhere in
this Agreement, no party will be liable to the other party for
any loss, damage, delay or failure of performance that is
attributable to acts of God, armed conflicts, war,
insurrection, acts of terrorism or acts committed in
furtherance of terrorism, riots, earthquakes, hurricanes,
floods, unusually severe weather, conditions or events of
nature that cannot be predicted, civil disturbances, power
failure, strikes, fire, the acts of any governmental
authority, or other causes beyond its reasonable control. A
party's performance, together with the other party's
reciprocal performance or obligations, will be excused during
the pendency of any such event, but that party will take all
steps reasonable, practical and necessary to effect prompt
resumption of its obligations under this Agreement in full or
in part.
10.9. Waiver. No failure or delay on the part of either party in
exercising any power or right under this Agreement will
operate as a waiver, nor will any single or partial exercise
of any such power or right preclude any other further exercise
thereof or the exercise of the other power or right. No waiver
by either party of any provision of this Agreement, or of any
breach or default will be effective unless in writing and
signed by the party against whom such waiver is to be
enforced.
10.10. Notices. Any notice that a party wishes or is obligated to
give under this Agreement must be in writing and delivered to
the intended recipient by (a) hand, (b) United States
certified mail, return receipt requested, or (c) a
nationally-recognized overnight courier (such as Fed Ex),
addressed to each party as follows or to such other address as
a party may subsequently designate by notice:
IF TO CARDTRONICS: IF TO ESC:
Cardtronics, LP Mark E. Hoppe
3110 Hayes Road, Suite 300 President
Houston, Texas 77082-2622 EFMARK Service Company of Illinois, Inc.
Attention: Michael H. Clinard, 777 Oakmont Lane, Suite 100
Chief Operating Officer Westmont, Illinois 60559
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WITH A COPY TO: WITH A COPY TO:
Cardtronics, LP Frederick W. Stein
3110 Hayes Road, Suite 300 Vice President and General Counsel
Houston, Texas 77082-2622 EFMARK Service Company of Illinois, Inc.
Attention: Michael E. Keller, 777 Oakmont Lane, Suite 100
General Counsel Westmont, Illinois 60559
Notices will be deemed to have been given or made three (3) Business Days after
deposit in the United States mail or one (1) Business Day after delivery to the
overnight courier service for next-day delivery. For the purpose of this
Agreement, "Business Days" means Monday through Friday, excluding federal
holidays.
10.11. Assignments. This Agreement will be binding in accordance with
its terms upon the parties and their permitted transferees,
assigns and successors in interest. No party will voluntarily
or by operation of law assign or transfer this Agreement (or
any rights or obligations thereunder) without the express
prior written consent of the other, which consent will not be
unreasonably withheld. Notwithstanding the foregoing, a party
may assign its rights and obligations to an affiliate or a
Purchasing Entity without the consent of the other. For the
purpose of this Agreement, an "affiliate" means any other
entity controlled by, controlling, or under common control of
a party. Cardtronics recognizes that ESC will assign certain
of its rights and obligations under this Agreement to its
affiliate, Premium Armored Services, Inc. For purposes of this
Section 10.11, a "Purchasing Entity" shall mean any individual
or entity that purchases substantially all of the assets of a
party.
10.12. Execution. This Agreement may be executed in one or more
counterparts, each of which will constitute an original
agreement, but will not be enforceable until delivery of the
executed counterparts. The parties acknowledge that this
agreement may be executed using electronic or facsimile
signatures, and that each signature will be legally binding to
the same extent as a written signature. Each party waives any
legal requirement that this Agreement be embodied, stored or
reproduced in tangible media, and agrees that an electronic
reproduction will be given the same legal force and effect as
a signed writing. Each of the undersigned declares and
represents that he or she is competent to execute this
instrument and that he or she is duly authorized, and has the
full right and authority, to execute this Agreement on behalf
of the party for whom he or she is signing.
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IN WITNESS WHEREOF, the parties set their hands and seals as of the day
and year first above written.
CARDTRONICS, LP EFMARK SERVICE COMPANY OF
ILLINOIS, INC.
By: /s/ Jack M. Antonini By: /s/ Mark E. Hoppe
------------------------------ ------------------
Print Name: Jack M. Antonini Print Name: Mark E. Hoppe
Its: President / Chief Executive Officer Its: President
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SCHEDULE A
SITE LOCATIONS/PRICING *
Schedule A - Page 1
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
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SCHEDULE B
SCOPE OF SERVICES
"Maintenance Services" means the First Line Maintenance, Second Line Maintenance
and other services described in this Schedule.
1. First Line Maintenance ("FLM"). ESC will provide FLM Services for those
ATMs designated in Schedule A. FLM generally requires no tools or
service parts, and includes the following:
1.1. Clearing of receipt/journal paper jams.
1.2. Retrieval and clearing of jammed cards.
1.3. Clearing of all currency jams (including fanning money when
necessary).
1.4. Check supplies for receipt/journal printers and replenish with
Cardtronics or merchant-supplied consumables.
1.5. In the event of an "electronics journal full" condition, copy
the journal to a floppy disk and give same to the merchant.
1.6. Respond to media transports that are not functioning properly
and clear them of any foreign objects (e.g. jams).
1.7. Clean ATM dip, swipe, or motorized card readers (when card
reader malfunction is indicated).
1.8. Check placement of captured card tray and reposition if
necessary.
1.9. Visually check ATM during routine ELM visits to verify and
perform corrective measures as required on the following:
- Lights functioning properly.
- Proper operation of the card access device.
- General cleanliness of ATM and surrounding area.
- ATM screen is clean.
1.10. Perform an invalid pin transaction and if observable within
two (2) minutes after service completion, observe a live
transaction and verify that all aspects of the ATM are
operational.
1.11. Extended First Line Services are defined as visits to verify
operation and notify Cardtronics of any service issues
regarding other third-party service providers. It
Schedule B - Page 1
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is not ESC's responsibility to repair these issues (except ATM
resets and modem resets), but to only report them to
Cardtronics. Examples of Extended First Line Service issues
are as follows:
- Phone line issues.
- Power issues.
- Network and general non-ATM communication issues.
- Modem resets.
- ATM resets.
- No fault found situations.
- Cash replenisher issues.
However, any repeat call to the same site for the same
Extended First Line Service within any two (2) day period will
be considered a billable call, and Cardtronics will be
invoiced accordingly at $90.00 per call to the extent that the
on-site time does not exceed ninety (90) minutes. Thereafter,
on-site time will be billed at $99.00 per hour.
1.12. When an ATM is vandalized, ESC will provide a repair estimate.
If Cardtronics decides to utilize ESC for repairs or if the
ATM is deemed "totaled" by Cardtronics, then ESC will not
charge for the estimate. If another service provider is
selected to make the repairs, then the estimate call will be
billable at $99.00 per hour (second line technician required).
1.13. The service hours and response times for each ATM Location are
designated on Schedule A. Response time for the purposes of
this Agreement will mean the time taken by ESC to respond to a
call, commencing from the time the call is placed to ESC and
ending when ESC actually arrives at the ATM Location. For the
purposes of determining whether ESC has met this obligation,
response times are averaged on a calendar month basis over all
of the ATMs listed on Schedule A with identical response
times. Response times are measured within service contract
hours only. For example, if a call or a given repair cannot be
completed by five o'clock p.m. (5:00 p.m.), it will continue
the next morning at eight o'clock am. (8:00 a.m.).
Notwithstanding the fact that ESC may satisfy the response
time based upon a monthly average, ESC will be deemed to be in
default of this obligation if during any calendar month period
it takes more than forty-eight (48) hours to respond to any
ATM.
1.14. Cardtronics agrees to cooperate with ESC in good faith to
establish mutually acceptable activity monitoring levels and
mutually acceptable "I'm Alive" notification frequencies to
minimize unnecessary calls.
Schedule B - Page 2
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1.15. In the event that Maintenance Service calls exceed the
Aggregate Call Rate set forth on Schedule A for three (3)
consecutive calendar months, both parties agree to
cooperatively investigate the situation, and to (i)
renegotiate the current monthly contract rate, or (ii) allow
ESC to cancel service at individual ATM Locations upon ninety
(90) days notice. Aggregate Call Rates for each ATM Location
will be assigned by mutual agreement of the parties, and
different ATM Locations may be assigned different Aggregate
Call Rates.
- To determine whether a given Aggregate Call Rate has
been exceeded, calls for Maintenance Service during a
calendar month will be grouped according to the
assigned Aggregate Call Rate, and then divided by the
number of ATMs with that same assigned Aggregate Call
Rate.
- By way of example, ATMs "A," "B," and "C" may be
assigned Aggregate Call Rates of .6 calls per
calendar month, while ATMs "D" and "E" may be
assigned Aggregate Call Rates of .8 calls per
calendar month. If there is a total of two (2) calls
at ATMs "A," "B," and "C" during a given calendar
month (resulting in an average of .67 calls per ATM
for that month), then the Aggregate Call Rate for
those ATMs will have been exceeded. On the other
hand, if there is a total of only one Maintenance
call at ATMs "D" and "E" during the same calendar
month (resulting in an average of .5 calls per ATM
for that month), then the Aggregate Call Rate for
those ATMs will not have been exceeded.
1.16. With respect to any ATM for which ESC has not responded to a
service call within any twelve (12) month period, on such ATMs
within thirty (30) days of the end of each such twelve (12)
month period, ESC will perform a preventative maintenance
inspection.
1.17. ESC will meet with Cardtronics in Houston, Texas on no less
than a quarterly basis to provide operational reviews.
Notwithstanding these quarterly meetings, ESC will notify
promptly Cardtronics of any ATM operational issues that is
known to ESC, including those involving services provided by
other vendors at the ATM Locations.
1.18. Any service, which at Cardtronics' request, is provided
outside the hours of coverage will be billed at a flat rate of
$90.00 per call; provided, however, if in the conduct of the
service ESC's personnel are required to remain on site for
longer than ninety (90) minutes, such call will be billed on
an hourly basis at $99.00 per hour.
2. Second Line Maintenance ("SLM"). ESC will provide SLM Services for
those ATMs designated in Schedule A. SLM includes remedial maintenance
and parts replacement.
2.1. The service hours and response times for each ATM Location are
designated on Schedule A Response time for the purposes of
this Agreement will mean the time taken by ESC to respond to a
call, commencing from the time the call is placed to
Schedule B - Page 3
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ESC and ending when ESC actually arrives at the ATM Location.
For the purposes of determining whether ESC has met this
obligation, response times are averaged on a calendar month
basis over all of the ATMs listed on Schedule A with identical
response times. Response times are measured within service
contract hours only. For example, if a call or a given repair
cannot be completed by five o'clock p.m. (5:00 p.m.), it will
continue the next morning at eight o'clock a.m. (8:00 a.m.).
Notwithstanding the fact that ESC may satisfy the response
time based upon a monthly average, ESC will be deemed to be in
default of this obligation if during any calendar month period
it takes more than forty-eight (48) hours to respond to any
ATM.
2.2. SLM consists of Remedial Maintenance and Replacement Parts, as
described below, necessary to keep the ATM in Good Operating
Condition.
- Remedial Maintenance -- Remedial Maintenance consists
of those functions required to repair a
malfunctioning ATM and return it to Good Operating
Condition.
- Replacement Parts -- ESC will install parts on an
exchange basis. Installed parts may be new or
reconditioned used parts. Replacement parts become
the property of the ATM owner. Replaced parts become
the property of ESC.
- For the purposes of this Agreement, the term "Good
Operating Condition" means conformance to the
manufacturer's then-current customer-level
documentation.
2.3. LIMITED WARRANTY. Replacement Parts (except for supplies,
consumables or expendable parts such as ink ribbons and disks)
are warranted against defects for a period of ninety (90) days
from the time the part is replaced. This warranty is limited
exclusively to the part replaced. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR
IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY
DISCLAIMED.
3. Excluded Services. The following items are not covered by this
Agreement and are billable to Cardtronics on a "per call" basis at
$99.00 per hour plus parts:
- any service necessary because an ATM is not in Good
Operating Condition on the date an ATM is added to
Schedule A; provided, however, unless within thirty
(30) days of the date an ATM is added to Schedule A,
ESC provides written notification that such ATM is
not in Good Operating Condition then said ATM will be
deemed to be in Good Operating Condition; provided,
further, that Cardtronics will not add an ATM to
Schedule A unless the ATM has been brought "live" and
until that ATM transacts a valid cash withdrawal;
Schedule B - Page 4
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- any service which, at Cardtronics' request, is
provided outside the hours of coverage or upon
arrival at the service location at the scheduled or
agreed upon time, ESC's personnel have a waiting time
in excess of thirty (30) minutes before either the
armored carrier service or the merchant arrives to
provide access to the ATM;
- vandalism, or neglect or abuse that is in excess of
$250.00 per ATM per occurrence; acts of God, but
excepting up to $250.00 per ATM per occurrence in
damage caused by lightening strikes;
- damage ordinarily covered by insurance, or resulting
from air conditioning or humidity control;
- any service made necessary by the refurbishing,
maintenance, or repair of the ATM equipment by
non-ESC personnel after the date said ATM is covered
by this Agreement;
- any services with respect to software or firmware
programming, or any damage to ATM equipment caused by
software or firmware programming; provided, however,
this exclusion shall not apply to the reloading of
encryption keys by a single technician (to the extent
allowed and if not allowed, ESC shall bill only for
the second technician) or the current software
package on any ATM by a single technician; and
- any and all services arising out of legal or network
requirements that would involve a change,
modification or upgrade in hardware and/or software
(e.g., Triple DES and ADA accessibility issues).
Schedule B - Page 5
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SCHEDULE C
SERVICE REQUEST PROCEDURES
1. The Help Desk. At its sole expense, Cardtronics Will create and
maintain a "Help Desk," which will serve as the initial point of
contact with respect to any requests for Maintenance Services from, or
with respect to, the ATM Locations for which "Help Desk" services have
been designated on Schedule A.
1.1. The Help Desk will be proactive in problem resolution, will
track and manage requests for service, and will determine
whether a specific request should be referred to ESC for
Maintenance Service.
1.2. Cardtronics will staff the Help Desk with an experienced staff
of technicians who have the required level of expertise to
quickly isolate and address service issues.
1.3. The Help Desk's hours of operation will be at least 7:00 a.m.
to 7:00 p.m. Central Standard Time.
2. Procedures for Service Requests. The parties will employ the following
procedures to address requests for Maintenance Services at the ATM
Locations:
2.1. At its sole expense, Cardtronics will instruct (and/or
institute a system such that) each ATM Location initially
directs any requests for service to Cardtronics.
2.2. Upon receipt of a request for service, Cardtronics will use
its best efforts to resolve the service issue. In so doing,
Cardtronics will record and maintain a record as to (i) the
nature of the reported problem, (ii) what corrective action
was discussed, (iii) what corrective action was attempted, and
(iv) the results of any attempt(s).
2.3. If the Help Desk is unable to resolve a service issue,
Cardtronics will report the request for service to ESC via
ESC's secure "e-ACCESS" website. ESC will provide Cardtronics
with separate documentation, user names and passwords to
access the e-ACCESS web site.
2.4. To initiate a service request via "e-ACCESS," Cardtronics must
enter in the required information, including the following:
- the Terminal Identifier;
- the caller's name and phone number;
- whether the ATM is down;
- the nature of the problem (e.g., card reader
problem); and
Schedule C - Page 1
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- additional details that may aid ESC in diagnosing and
remedying the service issue.
2.5. ESC will respond to the service request consistent with
Schedule B of this Agreement. Upon ESC's request, Cardtronics'
will allow ESC to inspect the records created and maintained
by Cardtronics' pursuant to these procedures.
Schedule C - Page 2