AUTOMATIC TELLER MACHINE PLACEMENT AGREEMENT
BETWEEN
......
abn......
(Venue Operator)
AND
……………………………………………………
ABN………………………………………………
(Supplier)
Page 1
TABLE OF CONTENTS
1.DEFINITIONS AND INTERPRETATION
1.1Definitions
1.2Interpretation
2.grant of licence and commencement of agreement
3.Term and holding over
3.1Term
3.2Holding over
4.Conditions
5.Installation and training
6.maintenance, Consumable and processing services
7.Venue Operator's commitments
7.1Use
7.2Telecommunications Service, electricity, lighting and consumables
7.3Care for the ATM
7.4Advertising
7.5Transactions
7.6Software
7.7Other cash dispensing equipment in the Building or on the Land
7.8Provision of cash by the Venue Operator
7.9Provision of cash by the Supplier or its nominated Cash Provider
8.ACCESS BY CASH PROVIDER TO SITE
8.1Access
8.2Terms and Conditions of Access
9.AMOUNTS payable by the Supplier
9.1Rebate
9.2Cash replenishment
9.3Usage charges and Telecommunications Service
10.direct charge fee
11.Amounts payable by Venue Operator
11.1Shortfall Amount
11.2Maintenance fees
11.3Fees Generally
12.GST
12.1Definitions
12.2GST payable in addition to consideration
12.3Tax Invoice
12.4Payment of GST
12.5Reimbursement or indemnity
12.6Adjustment Events
12.7Additional amount
12.8Credit or refund
13.Damage and destruction
13.1Damage, theft or destruction of the ATM
13.2Suspension of obligations and extension of the Term
13.3Supplier may terminate
13.4Venue Operator may terminate
13.5Venue Operator not obliged to reinstate
13.6Antecedent rights
14.Use of the Site
14.1Permitted use
14.2Restrictions on use
14.3Official Requirements
15.DEALINGS IN THE LAND, Assignment, novation and service contracts
15.1Dealings in the Land
15.2Assignment and Novation
15.3Service Contracts
16.Insurance
16.1Supplier's insurance
16.2Proof of insurance policies
16.3Blanket insurance policy
16.4Venue Operator's insurance
17.warranties, releases and indemnities
17.1Supplier's warranty
17.2Venue Operator's warranty
17.3Supplier's release and indemnity
17.4Venue Operator's release and indemnity
17.5Limitation of Liability
18.confidential information
19.Default and termination
19.1Default or insolvency of Supplier
19.2Default or insolvency of Venue Operator
19.3Early termination by either party
19.4Early termination by the Supplier
19.5Termination under clause 4(b)
19.6Termination for requirement to move or relocate ATM
19.7Payment of the Termination Sum
20.AFTER TERMINATION OR EXPIRY
20.1Removal of Supplier's Property
20.2Failure to remove
21.Notices and other communications
21.1Service of notices
21.2Effective on receipt
22.Relocation
22.1Venue Operator alterations to Building
22.2Relocation
22.3Cost of relocation
22.4Relocation subject to this agreement
22.5Relocation not be for locating another ATM
23.security REQUIREMENTS
24.General
24.1Governing law and jurisdiction
24.2Parties bound jointly and individually
24.3Severability
24.4Entire understanding
24.5Waiver
24.6Venue Operator's consent
THIS AGREEMENT is made on the date contained in item 1 of the Reference Schedule.
BETWEEN / The party referred to in item 2 of the Reference Schedule(Venue Operator).AND / The party referred to in item 3of the Reference Schedule (Supplier).
RECITALS
- The Venue Operator is the *registered proprietor /*lessee of the Land(*delete as required)
- The Venue Operator is regulated by, among other things, the Gaming and Liquor Law.
- In consideration of the fees payable to the Venue Operator and the services provided by the Supplier under this agreement, the Venue Operator has agreed to permit the Supplier to install the ATM at the Siteand grants a licence upon the terms and conditions contained in this agreement.
NOW IT IS AGREED as follows:
1.DEFINITIONS AND INTERPRETATION
1.1Definitions
In this agreement the following words have the following meaning:
Access Hours means 8am to 8 pm Monday to Friday (Public Holidays excluded).or the hours as agreedfrom time to time between the parties in writing
Additional Maintenance Services means the additional maintenance services that the Venue Operator may request from the Supplier under clause 6(f)and that are specified inclause6(f);
Affecting Official Requirement means an Official Requirement that has the effect of imposing more onerous Compliance Measure/s;
Alarm Notice means a notice issued by the Supplier or a Cash Provider to the Venue Operator under clause 23(a)(i)in relation to the installation of the alarms on the Site or in the Building;
ATM means theSupplier's automatic teller machine installed or to be installed at the Site and includes the hardware, software, communications devicesand all other associated equipment provided by the Supplier;
Building means all improvements on the Land including any modifications;
Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in the State;
Business Hours means from 9am to 5pm on a Business Day;
Cardholder means a person who uses or intends to use the ATM;
Cash Provider means a third party with whom the Supplier contracts to provide the service of stocking and replenishing the ATM;
Cash Withdrawal Transaction means a successful cash withdrawal transaction completed using the ATM;
CECS Regulations and Manual means the Consumer Electronic Clearing System Regulations and Manual published by the Australian Payments Clearing Association Limited;
Claim includes any claim, action, proceedings, order, direction, judgement, damage, loss, cost, expense, liability whatever incurred or suffered by or brought or made or recovered against that person and however arising (whether or not presently ascertained, immediate, future or contingent);
Common Areas means the areas of the Building and the Land provided by the Venue Operatorfor common use;
Commencement Date means the commencement date of the Termspecified in item7 of the Reference Schedule being the anticipated date of first operation of the ATM after its installation;
Compliance Measure means an Official Requirement or an Affecting Official Requirement that has the effect of imposing on the Supplier and/or the Venue Operator, obligations, limits, fees or other restrictions on the use or operation of an ATM;
Confidential Information means any and all information of a party that:
(a)is by its nature confidential or proprietary;
(b)is provided by the party to the other party, or that the other party creates or becomes aware of in the course of conducting using or occupying the Site; and
(c)the other party knows or ought to know is confidential or proprietary,
and includes:
(d)financial and accounting information;
(e)marketing information (including the status and details of research and development of goods and services, price and cost data, future plans and marketing strategies);
(f)in the case of the Venue Operator - information about and relating to its patrons;
(g)Health Information, Sensitive Information, Personal Information and any other information subject to Privacy Law; and
(h)all other commercial, financial, legal and technical information;
whether written, oral or in other recorded or tangible form and whether provided before, on, or after the date of this agreement.
Consumable Services means the consumable supplies and services to be provided by the Supplier under clause 6(b);
Direct Charge Fee means the amount payable by Cardholders to the Supplier for an ATM transaction as specified in Item 14 of the Reference Schedule;
EFT Code of Conduct means the Electronic Funds Transfer Code of Conduct published by the Australian Securities and Investments Commission;
Employees means the relevant party's employees, contractors or agents who may be on the Site, the Building or the Land;
Expiry Date means the expiry date of this agreement specified in item 8 of the Reference Schedule;
Gaming and Liquor Law includes any applicable Act (including if applicable the Act of a State or Territory), regulation or guideline that is in force or may be enacted to regulate the keeping or operation of automatic teller machines in or about venues that hold a liquor licence or keep or operate gaming machines on their premises, including the Land;
GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Act or otherwise on a supply;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all regulations made under the GST Act;
Insolvency Event means an event by which a party:
(a)is insolvent, insolvent under administration, or states that it is unable to pay its debts when they become due and payable, other than voluntary administration;
(b)is placed in or under any form of external administration including if a party or its property is subject to the appointment of an administrator, a controller, receiver or receiver and manager, a liquidator or an official manager;
(c)is made subject to any compromise or arrangement with any of its creditors or members or scheme for its reconstruction or amalgamation, otherwise than as a result of voluntary corporate reconstruction including voluntary administration;
(d)is wound up or dissolved, or an order or resolution is made to wind up or dissolve the party;
(e)is or applies to be protected from any of its creditors under any applicable laws; or
(f)has anything similar to any of the events in paragraphs (a) to (e) happen to it under the law of any applicable jurisdiction;
Itemmeans an item appearing in the ReferenceSchedule (as specified in a clause);
Land means the land described in item4 of the Reference Schedule together with any other land used by the Venue Operatorin connection with the Building;
Lease means the lease, if any, specified in item 13 ofthe Reference Schedule being a lease under that the Venue Operator occupies the Site;
Licence means the licence granted to the Supplier by the Venue Operator to install the ATM and access the ATM under the terms of this agreement;
Maintenance Area means the area adjacent to the ATM reasonably necessary for the Supplier to perform maintenance functions to the ATM as advised to the Venue Operator from time to time;
Maintenance Fees for the Additional Maintenance Services means the fees payable for the Additional Maintenance Services in accordance with clauses 11.2(b) and 11.2(c);
Maintenance Services means the maintenance services to be provided by the Supplier and specified inclause6(e);
Minimum Withdrawal Transaction Threshold means the minimum number of withdrawal transactions specified in item9 of the Reference Schedule
Minimum Number of Transactions means the minimum number of transactions specified in item 12 of the Reference Schedule that are to occur under clause 19.4(a)during any period specified in item 12of the Reference Schedule;
Official or statutory officer means and includes a person authorised under the Gaming and Liquor Law to give directions or orders or to impose penalties to persons subject to the Gaming and Liquor Law
Official Requirement means any requirement, notice, order or direction of any authority and includes the provisions of any statute, guideline, ordinance or bylaw, including notices, orders, directions and guidelines given under the Gaming and Liquor Law;
Privacy Law means the Privacy Act 1988, the HealthRecords & Information Privacy Act 2002 and any other law or mandatory code applicable to the collection, use and disclosure of personal information and sensitive information as defined in that legislation;
Processing Services means the services described under clause 6(c);
Rebate means the amount payable by the Supplier to the Venue Operator under clause 9.1and specified in item 10 of the Reference Schedule;
Security Requirements means the security requirements specified in clause 23 and as advised by the Supplier or its Cash Provider from time to time in writing;
Services means all utilities and services in the Building or the Site;
Shortfall Amount means the amount calculated in accordance with clause 11.1(b);
Site means the area provided by the Venue Operator for installation of the ATM and described in item5 of the Reference Schedule including the Maintenance Area (or such other site and maintenance area in that the ATM is relocated under clause 22.2);
State means the State or Territory in which the Land is situated;
Supplier's Property means the ATM and includes all other articles on the Site that belong to the Supplier and do not belong to the Venue Operator;
Telecommunication Services means a telephone line and any cabling necessary to enable the use of the telephone line that is to be installed by the Venue Operator at the Site as determined by the Supplier;
Term means the term stated in item6 of the Reference Schedule;
Termination Sum means the average monthly gross revenue received by the Supplier under this agreement during the previous 12 months (or for each full month completed if the period of the Term is less than 12 months at the time of calculation) less the average Rebate in that periodreceived by the Venue Operator, multiplied by the number of months remaining in the Term;
Venue Operator's Property means any property owned by the Venue Operator in the Building or on the Land.
1.2Interpretation
In this agreement, except where the context otherwise requires:
(a)the singular includes the plural and vice versa, and a gender includes other genders;
(b)another grammatical form of a defined word or expression has a corresponding meaning;
(c)a reference to a clause, paragraph, schedule, Reference Schedule or annexure is to a clause or paragraph of, or schedule or Reference Schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
(d)a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e)a reference to A$, $A, dollar or $ is to Australian currency;
(f)a reference to time is to the time in State;
(g)a reference to a party includes the party's executors, administrators, successors and permitted assigns and substitutes;
(h)reference to:
(i)a person includes:
(A)a corporation and government body; and
(B)the legal representatives, successors and assigns of that person;
(ii)month or monthly means calendar month or calendar monthly; and
(iii)a right includes a remedy, authority or power;
(i)a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(j)a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, reenactments or replacements of any of them;
(k)the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(l)a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;
(m)if a day on or by that an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
(n)headings are for ease of reference only and do not affect interpretation; and
(o)this agreement includes its schedules and any attached plan of the Site.
2.grant of licence and commencement of agreement
(a)The Venue Operator grants the Supplier a licence to install the ATM at the Site and access the ATM and the Site under the terms of this agreement.
(b)The parties agree that the Site may only be changed from the location specified in Item 5 of the Reference Schedule under clause 22.2.
(c)This agreement commences and binds the parties on and from the date on which it is signed, being the date specified in item 1 of the Reference Schedule.
3.Term and holding over
3.1Term
The Term of this agreement is for the period specified in item 6 of the Reference Schedule, commencing on the Commencement Date and ending on the Expiry Date, subject to any earlier termination under this agreement.
3.2Holding over
If the Supplier continues to occupy the Site after the Term, with the Venue Operator's consent, it does so under a monthly tenancy:
(a)that either party may terminate onone months' notice expiring on any day;
(b)otherwise on the same basis as applied on the last day of the Term.
4.Conditions
(a)This agreement is subject to:
(i)If the Venue Operator occupies the Land under a lease and the lease requires, the consent of any person having any mortgage over the headlease and the consent of the headlessor;
(ii)If the Land and /or buildingis subject to a charge or mortgage, the consent of the chargee or mortgagee on terms acceptable to each party, acting reasonably;
(iii)all required approvals under the Gaming and Liquor Law;
(iv)all Official Requirements; and
(v)all necessary development or planning consents or approvals; and
(vi)all Security Requirements (if applicable),
being first obtained or satisfied by the Venue Operator, as may be required.
(b)This agreement:
(i)may be terminated by either party if any of the conditions referred to in clause 4(a)are not satisfiedby the Commencement Date or such other date as the parties may agree in writing, subject to not less than 14 days written notice of termination being given; and
(ii)will terminate immediately if the Lease is terminated or expires and is not renewed by the Venue Operator during the Term (if the Venue Operator occupies the Land under the Lease),
provided that a party cannot terminate under this clause if it has not used all reasonable endeavours to facilitate the granting of an approval or consent sought under clause 4(a).
(c)The Venue Operator must as soon as is practicable notify the Supplier of the termination of the Lease.
5.Installation and training
(a)The Supplier must submit plans to the Venue Operator and obtain the Venue Operator's approval prior to installing the ATM.
(b)Upon approval of the Supplier's plans and all other Official Requirements, the Venue Operator must allow the Supplier to install the ATM, Telecommunications Service and signage in the Site and the Building in accordance with those approvals.
(c)The Supplier must use reasonable endeavours to install the ATM by the Commencement Date.
(d)Upon installation the Supplier must:
(i)deliver and install the initial supplies such as initial paper rolls;
(ii)deliver to the Venue Operator a manual for the basic operation of the ATM;
(iii)Provide training to the Venue Operator's Employees in the operation and basic maintenance of the ATM.
(e)The Supplier may change, alter or replace the ATM at any time, subject to prior written notice being given to the Venue Operator and all Official Requirements being met.
(f)During the Term, the Supplier must provide additional training to the Venue Operator's Employees on a needs basis, in consultation with the Venue Operator.
(g)The Supplier must at its cost ensure that the ATM at all times operates and complies with all relevant Official Requirements, the Gaming and Liquor Law and the manufacturer's guidelines.
6.maintenance, Consumable and processing services
(a)The Supplier must provide to the Venue Operatorwith the following services:
(i)Consumable Services;
(ii)Processing Services;
(iii)Maintenance Services.
(b)Upon the Venue Operator's request, the Supplier must provide sufficient supplies for operation of the ATM (including paper rolls) and such other consumable supplies necessary for use and operation of the ATM (Consumable Services).
(c)The Supplier must process and settle transactions conducted using the ATM (Processing Services). In conducting the Processing Services, the Supplier may choose and alter the switch/data processing organisation and the acquiring/settling bank in its discretion. The Venue Operator may not subscribe to any other switch/data processing organisation/settling bank for processing, acquiring or settling transactions effected by users of the ATM.