The following terms and conditions apply to all sales, services, and any and all other business with ATM Headquarters LLC, its affiliates, contractors, agents, and employees (referred to as ATMH).
1. Location. The Location is either owned by Merchant or Merchant has an effective and current “Lease” to occupy the Location. If Merchant is engaged in business with multiple locations, these Term and Conditions shall be applicable with respect to all ATMs and Locations listed thereon and binding on the Parties.
2. Processing Services; Screen Advertisements, Taxes. ATMH agrees to provide directly or through a third party designated processor (“Processor”) electronic data processing services (“EDPS”) as ATMH determines is necessary and proper to process all of the ATM transactions, and ATM crypto-currency transactions (when available). ATMH will also provide on ATM advertising options for Merchant and ATMH may also provide advertising services from 3rd parties on the ATM machine. ATMH is not responsible for income or sales taxes payable by Merchant.
3. Availability. During the term of this Agreement, ATMH and Merchant agree that during Merchant’s regular business hours, the ATM shall remain available for use by Merchant’s customers, employees and patrons of Merchants for ATM transactions.
4. Installation/Maintenance/Repair. Merchant will not authorize anyone to perform any service or repair work on the ATM without ATMH’s prior written approval. In the event of any ATM failure, damage or other problem, ATMH or ATMH’s agent will have the right at any reasonable time and at all times during business hours to enter into and upon the Location for the purpose of inspecting, repairing, maintaining or upgrading the ATM and observing its use. ATMH, at its exclusive sole discretion and expense, will have the right to conduct manufacturer’s warranty service work, including the right to exchange the ATM for a comparable ATM of equal or greater value.
5. Connectivity and Electrical Requirements. Merchant will, at its expense, provide one (1) operating electrical power outlet, grounded circuit (110V).
6. Exclusivity. Merchant will not permit the removal of the ATM from the Location, nor allow the installation and/or placement of any other ATMs at the Location (whether inside or outside), nor subscribe to any other EDPS service for processing ATM Transactions during the term of this Agreement, except as specifically approved by ATMH at its sole option in writing.
7. Insurance Requirements. Merchant waives any rights of recovery against ATMH arising from any loss, theft, damage or destruction of Merchant’s property. All cash kept in the ATM shall be the property of ATMH and ATMH will bear the risk of loss if any cash or the ATM machine is stolen or otherwise lost or destroyed. Merchant Assignee agrees to indemnify and hold harmless ATMH from any and all liability arising from doing business with ATMH.
8. Term. (A.) Upon expiration of the Initial term or any Renewal term of this Agreement, Merchant gives and grants to ATMH a right of first refusal to provide its services to Merchant and Merchant shall notify ATMH Notice of any written or verbal offer by another party to provide the services set forth herein, and ATMH shall have 30 days from such Notice to match such offer, in which case Merchant shall accept ATMH’s offer. (B.) Nothing herein shall be construed as permitting Merchant to solicit ATM or similar services after the execution of this Agreement or during any term of this Agreement or to breach this Agreement. (C.) ATMH may terminate this Agreement without cause at any time, and without liability to Merchant upon ATMH giving Merchant Notice of termination with respect to an ATM, if ATMH deems the Location unmanageable, as determined in ATMH’s sole discretion.
9. Assignment; Waiver. This Agreement is binding upon and shall inure to the benefit of the Parties, their officers, directors, agents, employees, entities, groups and affiliates (as if expressly named herein), their successors and/or permitted assigns, and the heirs and personal representatives of the Parties. Merchant shall not assign or in any way dispose of all or any part of its rights or obligations under this Agreement without the prior written consent of ATMH. ATMH, in ATMH’s sole discretion may assign this Agreement. A waiver by either Party of a breach of any provision of this Agreement shall not constitute a waiver of that Party’s rights to otherwise demand strict compliance with this Agreement and any and all provisions hereof.
10. Disclaimer & Indemnity. The sole obligation of ATMH is to perform its duties and responsibilities as stated in this Agreement. ATMH has made no representations or warranties regarding projected revenues or expenses in connection with the operation of the ATM. There is no assurance that Revenue Fees payable to Merchant will be sufficient to pay all obligations of Merchant with respect to the ATM. ATMH shall in no event be responsible for any investment, the financial aspects of any investment concerning the ATM, lost profits or incidental, consequential, special or indirect damages that Merchant, any third party, may incur, or for failure to comply with the Americans With Disabilities Act or any similar law with respect to the operation of the ATM, or posting of Surcharge Fees, and Merchant shall defend, indemnify and hold ATMH harmless, including legal fees, from any claims, legal actions or threatened actions concerning same. ATMH’s sole liability to Merchant, any third party, hereunder, except as otherwise provided, shall be to remedy any breach of this Agreement in a timely manner. Neither Party will be liable for failure to perform its obligations under this Agreement if such failure is due to acts or events beyond such Party’s reasonable control.
11. Attorney Fees. If suit or action is instituted to enforce or interpret any of the terms of this Agreement, the prevailing Party shall be entitled to recover from the other Party, in addition to costs, such sums as the court may adjudge reasonable for legal fees at trial and in any appellate or bankruptcy proceeding. A breaching Party agrees to pay all costs of collection for sums due to the non-breaching Party under this Agreement, including attorney fees, whether or not suit or action is commenced.
12. Controlling Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of South Carolina. Jurisdiction and venue for any legal proceeding to interpret or enforce this Agreement shall be in Greenville, Greenville County, South Carolina.
13. Severability. In the event any provision of the Agreement is found to be invalid, voidable, or unenforceable, the Parties agree that unless it materially affects the entire intent and purpose of the Agreement, such invalidity, voidability, or unenforceability shall affect neither the validity of the Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
14. Authority; Waiver; Counterparts; Electronic Signature. (A.) Merchant represents and warrants to ATMH that the execution and delivery of this Agreement and any related documents and the performance of the provisions hereof have been duly authorized by all necessary action (including corporate action, if applicable) by Merchant on its part, and that this Agreement has been duly and validly executed and delivered by Merchant and is valid and legally binding, enforceable against Merchant in accordance with its terms. (B.) In the event Merchant accepts payment from ATMH for any amounts pursuant to this Agreement, Merchant waives any and all claims regarding the validity of this Agreement, including but not limited to any claims regarding the authority (or lack thereof) of the signor to enter into this Agreement. (C.) For purposes of this Agreement, ATMH reserves the right to conclusively rely upon the written instructions of any representative of Merchant. (D.) A photocopy, facsimile, microfilm, microfiche or optical image of this Agreement shall be as sufficient as an original hereof for all intents and purposes. (E.) This Agreement may be executed in one or more counterparts, each of which, when taken together, will be deemed to constitute one and the same agreement. (F.) A signature hereto sent or delivered by facsimile or other electronic transmission shall be as legally binding and enforceable as a signed original for all purposes. (G.) No Party hereto shall raise the use of a facsimile machine or other electronic transmission to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or other electronic transmission as a defense to the formation or enforceability of a contract and each such Party forever waives any such defense.