agreement - atm machines for sale | cashpoint payment ... web viewincludes any claim, action ......

AUTOMATIC TELLER MACHINE PLACEMENT AGREEMENT

BETWEEN

.........................................................................

ABN..................................................................(Venue Operator)

AND

……………………………………………………

ABN……………………………………………… (Supplier)

TABLE OF CONTENTS

1. DEFINITIONS AND INTERPRETATION.................................................................31.1 Definitions........................................................................................................................... 31.2 Interpretation....................................................................................................................... 6

2. GRANT OF LICENCE AND COMMENCEMENT OF AGREEMENT..................................73. TERM AND HOLDING OVER.............................................................................7

3.1 Term.................................................................................................................................... 73.2 Holding over........................................................................................................................ 7

4. CONDITIONS................................................................................................75. INSTALLATION AND TRAINING.........................................................................86. MAINTENANCE, CONSUMABLE AND PROCESSING SERVICES..................................97. VENUE OPERATOR'S COMMITMENTS................................................................9

7.1 Use...................................................................................................................................... 97.2 Telecommunications Service, electricity, lighting and consumables...................................97.3 Care for the ATM...............................................................................................................107.4 Advertising........................................................................................................................ 107.5 Transactions...................................................................................................................... 117.6 Software............................................................................................................................ 117.7 Other cash dispensing equipment in the Building or on the Land......................................117.8 Provision of cash by the Venue Operator..........................................................................117.9 Provision of cash by the Supplier or its nominated Cash Provider....................................12

8. ACCESS BY CASH PROVIDER TO SITE.............................................................138.1 Access............................................................................................................................... 138.2 Terms and Conditions of Access.......................................................................................13

9. AMOUNTS PAYABLE BY THE SUPPLIER...........................................................149.1 Rebate............................................................................................................................... 149.2 Cash replenishment..........................................................................................................149.3 Usage charges and Telecommunications Service.............................................................14

10. DIRECT CHARGE FEE..................................................................................1411. AMOUNTS PAYABLE BY VENUE OPERATOR......................................................15

11.1 Shortfall Amount................................................................................................................1511.2 Maintenance fees..............................................................................................................1511.3 Fees Generally..................................................................................................................15

12. GST.........................................................................................................1512.1 Definitions.........................................................................................................................1612.2 GST payable in addition to consideration..........................................................................1612.3 Tax Invoice........................................................................................................................1612.4 Payment of GST................................................................................................................1612.5 Reimbursement or indemnity............................................................................................1612.6 Adjustment Events............................................................................................................1612.7 Additional amount..............................................................................................................1612.8 Credit or refund................................................................................................................. 16

13. DAMAGE AND DESTRUCTION........................................................................1613.1 Damage, theft or destruction of the ATM...........................................................................1613.2 Suspension of obligations and extension of the Term.......................................................1713.3 Supplier may terminate.....................................................................................................1713.4 Venue Operator may terminate.........................................................................................1713.5 Venue Operator not obliged to reinstate............................................................................1713.6 Antecedent rights..............................................................................................................17

14. USE OF THE SITE........................................................................................1814.1 Permitted use....................................................................................................................1814.2 Restrictions on use............................................................................................................1814.3 Official Requirements........................................................................................................18

15. DEALINGS IN THE LAND, ASSIGNMENT, NOVATION AND SERVICE CONTRACTS.........1915.1 Dealings in the Land..........................................................................................................1915.2 Assignment and Novation.................................................................................................1915.3 Service Contracts..............................................................................................................19

16. INSURANCE...............................................................................................2016.1 Supplier's insurance..........................................................................................................2016.2 Proof of insurance policies................................................................................................2016.3 Blanket insurance policy....................................................................................................2016.4 Venue Operator's insurance..............................................................................................20

17. WARRANTIES, RELEASES AND INDEMNITIES.....................................................2017.1 Supplier's warranty............................................................................................................2017.2 Venue Operator's warranty................................................................................................2017.3 Supplier's release and indemnity.......................................................................................2017.4 Venue Operator's release and indemnity..........................................................................2017.5 Limitation of Liability..........................................................................................................21

18. CONFIDENTIAL INFORMATION.......................................................................2119. DEFAULT AND TERMINATION.........................................................................21

19.1 Default or insolvency of Supplier.......................................................................................2119.2 Default or insolvency of Venue Operator...........................................................................2119.3 Early termination by either party........................................................................................2119.4 Early termination by the Supplier.......................................................................................2219.5 Termination under clause 4(b)...........................................................................................2319.6 Termination for requirement to move or relocate ATM......................................................2319.7 Payment of the Termination Sum......................................................................................23

20. AFTER TERMINATION OR EXPIRY...................................................................2320.1 Removal of Supplier's Property.........................................................................................2320.2 Failure to remove..............................................................................................................23

21. NOTICES AND OTHER COMMUNICATIONS.........................................................2421.1 Service of notices..............................................................................................................2421.2 Effective on receipt............................................................................................................24

22. RELOCATION.............................................................................................2422.1 Venue Operator alterations to Building..............................................................................2422.2 Relocation......................................................................................................................... 2422.3 Cost of relocation..............................................................................................................2522.4 Relocation subject to this agreement................................................................................2522.5 Relocation not be for locating another ATM......................................................................26

23. SECURITY REQUIREMENTS...........................................................................2624. GENERAL.................................................................................................26

24.1 Governing law and jurisdiction..........................................................................................2624.2 Parties bound jointly and individually.................................................................................2624.3 Severability........................................................................................................................2624.4 Entire understanding.........................................................................................................2724.5 Waiver............................................................................................................................... 2724.6 Venue Operator's consent.................................................................................................27

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 3 of the Reference Schedule (Supplier).

RECITALS

A. The Venue Operator is the *registered proprietor /*lessee of the Land (*delete as required)

B. The Venue Operator is regulated by, among other things, the Gaming and Liquor Law.

C. 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 Site and grants a licence upon the terms and conditions contained in this agreement.

NOW IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

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 agreed from 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 6.1(f) and that are specified in clause 6.1(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 23.1(a)(i) in relation to the installation of the alarms on the Site or in the Building;

ATM means the Supplier's automatic teller machine installed or to be installed at the Site and includes the hardware, software, communications devices and 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 Operator for common use;

Commencement Date means the commencement date of the Term specified in item 7 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 6.1(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;

Item means an item appearing in the Reference Schedule (as specified in a clause);

Land means the land described in item 4 of the Reference Schedule together with any other land used by the Venue Operator in connection with the Building;

Lease means the lease, if any, specified in item 13 of the 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 in clause 6.1(e);

Minimum Withdrawal Transaction Threshold means the minimum number of withdrawal transactions specified in item 9 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 12 of 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 by-law, including notices, orders, directions and guidelines given under the Gaming and Liquor Law;

Privacy Law means the Privacy Act 1988, the Health Records & 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 6.1(c);

Rebate means the amount payable by the Supplier to the Venue Operator under clause 9.1 and 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 item 5 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 item 6 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 period received 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.

1.2 Interpretation

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, re-enactments 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

3.1 Term

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.

3.2 Holding 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 on one 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 head lease and the consent of the head lessor;

(ii) If the Land and /or building is 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 4.1(a) are not satisfied by 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 4.1(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 Operator with 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.

(d) The Venue Operator must promptly complete and return all required documentation to enable the Supplier to conduct the Processing Services.

(e) The Supplier must at its expense and without charge to the Venue Operator use reasonable efforts to carry out routine and general service and maintenance, including repairs necessitated by power surges or electrical faults, and diagnose problems and correct or service any faults and replace parts in the Supplier's Property in a prompt, efficient and business like manner (Maintenance Services).

(f) The Supplier must on request from the Venue Operator and subject to payment of the Maintenance Fee for the Additional Maintenance Services, in a prompt, efficient and business like manner carry out maintenance, replace parts and repair damage to the Supplier's Property that is caused maliciously by vandalism such as by attempted or actual burglary, theft, break-in, ram raid or other unlawful activity (Additional Maintenance Services).

(g) The Supplier retains title to any service parts removed or replaced by the Supplier.

7. VENUE OPERATOR'S COMMITMENTS

7.1 Use

The Venue Operator must:

(a) ensure that the ATM is only used for the purposes for that it is designed;

(b) not impose any fees or charges on anyone who uses, or attempts to use, the ATM; and

(c) only use the ATM in accordance with all applicable laws and Official Requirements.

7.2 Telecommunications Service, electricity, lighting and consumables


(a) do everything reasonable to ensure the Services operate efficiently at all times;

(b) keep the ATM connected to the Telecommunications Services at all times, and ensure that the Telecommunications Services is dedicated to the ATM;

(c) prior to the installation of the ATM, ensure that at least two 240 volt power outlets are available in the Site where the ATM is to be installed as directed by the Supplier;

(d) always provide electricity and lighting to the ATM and to all signage provided by the Supplier, and ensure that any problem with the electricity or lighting is rectified promptly after the Venue Operator becomes aware of the problem;

(e) immediately notify the Supplier if its supply of consumables (such as paper rolls) is likely to become inadequate.

7.3 Care for the ATM


(a) take reasonable steps to ensure that the ATM is kept In the condition that it is in when it is supplied by the Supplier (fair wear and tear resulting from the normal operation of an ATM excepted);

(b) ensure that the ATM is not subjected to any environmental conditions that may adversely affect it;

(c) not repair, service, tamper with, change, add to, or otherwise interfere with the ATM or its contents, and the Venue Operator must ensure that no one else (except the Supplier) does any of these things (except to the extent required for the Venue Operator to comply with clause 9.2(a), or as advised by the Supplier);

(d) immediately notify Supplier if the Venue Operator becomes aware that there Is a problem with the ATM (or any part thereof), or that the ATM (or any part thereof) has become inoperative or damaged;

(e) replace the paper in the ATM when necessary and correct any misfeeds or jams of paper and/or notes, unless otherwise specified in writing by the supplier

(f) comply with the procedures relating to the operation, use and maintenance of the ATM specified by the Supplier from time to time, including the provision of basic non-technical maintenance of the ATM (for example re-setting of ATM etc in accordance with the procedures contained in the manual provided or as directed by the Supplier;

7.4 Advertising

(a) The Venue Operator must:

(i) if requested by the Supplier at any time during the term of this agreement, allow the Supplier to install and maintain signage and advertising at the Site, subject to such signage complying with all laws, including but not limited to the Gaming and Liquor Law.

(ii) not remove, alter or obstruct the signage without the Supplier's prior written consent unless such signage does not in the reasonable opinion of the Venue Operator comply with the Gaming and Liquor Law;

(iii) not affix to, or place on, the ATM any advertising or promotional material that was not provided by the Supplier;

(iv) affix to the ATM in a prominent position any tags or labels supplied by the Supplier (provided such tags and labels comply with all laws, including the Gaming and Liquor Law).

(b) The Supplier's signage and advertising must only relate to the ATM itself. The Supplier is not permitted to advertise any other product or service.

7.5 Transactions

The Venue Operator must cooperate fully with the Supplier and any institution approved by Supplier that issues cards, to enable the Supplier and those institutions to properly investigate any disputed or suspected transactions carried out using the ATM, and to enable all of them to meet the requirements of the EFT Code of Conduct, CECS Regulations and Manual, and any other relevant requirements.

7.6 Software

The Venue Operator must not change, download or copy any software that the Supplier provides to the Venue Operator (including software installed in the ATM);

7.7 Other cash dispensing equipment in the Building or on the Land

(a) The Venue Operator must not install, and ensure that no other person installs another ATM on the Land or in the Building during the operation of this agreement.

(b) Clause 7.7(a) does not:

(i) prohibit the installation on the Land or in the Building of EFTPOS type equipment or services (and the Venue Operator may contract with any supplier for installation of such equipment services); or

(ii) require the Venue Operator to remove or cease operating another ATM or ATMs that is or are already installed on the Land or in the Building at the Commencement Date unless the ATM or ATMs installed under this agreement is to replace the existing ATM or ATMs.

(c) The parties may agree on the installation by the Supplier of an additional ATM or additional ATMs on the Land or in the Building. Unless a separate ATM Placement Agreement is entered into in respect of the additional ATM(s), any such additional ATM(s) or installation(s) is subject to this agreement, including:

(i) obligations regarding the installation and placement of the additional ATM(s) shall apply; and

(ii) the balance of the Term of this Agreement then remaining shall apply to the additional ATM(s),

but subject to any changes agreed in writing, including but not limited to application to the ATMs of changes to the Direct Charge Fee, Minimum Withdrawal Transaction Threshold, Minimum Number of Transactions, Rebate and Shortfall Amount.

7.8 Provision of cash by the Venue Operator

If item 11 of the Reference Schedule indicates that the Venue Operator is required to supply the ATM with cash, then the Venue Operator:

(a) must ensure that the ATM is always supplied with adequate cash to enable transactions to be conducted using the ATM, and that the cash is loaded into the ATM correctly (subject to the Supplier's obligations under this agreement regarding reimbursement of cash to the Venue Operator). The Venue Operator must only use bank notes of a denomination or denominations nominated by the Supplier;

(b) must ensure that the ATM is stocked with sufficient quantities of receipt and journal rolls and ribbons to record all transactions effected through that ATM. The Venue Operator must only use receipt and journal rolls and ribbons supplied by the Supplier and must give the Supplier adequate notice of the Venue Operator’s need for further supplies;

(c) must correct any misfeeds or jammed notes;

(d) must download a copy of the electronic journal as required by the Supplier or at least on a monthly basis, and keep each copy of the electronic journal for at least 12 months;

(e) must provide the Supplier with a copy of the electronic journal, and any other information requested by the Supplier, within 2 Business Days of the Supplier's request (that must be within the 12 month period referred to in clause 7.8(d);

(f) must raise any queries, concerns or disputes relating to the balancing of the ATM, or any transaction, within 5 Business Days of the date of the relevant balancing of the ATM or transaction. If the Venue Operator fails to comply with this clause, then the Supplier is not liable for any loss or damage of any kind suffered or incurred by the Venue Operator as a result of the balancing of the ATM or transaction;

(g) will be responsible for the security of all bank notes placed in each ATM and will indemnify the Supplier or any party claiming through the Supplier in respect of the loss, damage, misappropriation of any such bank notes; and

(h) acknowledges and agrees that the Supplier will have no liability for any loss suffered by the Venue Operator as a result of an improperly stocked ATM, unless as a result of machine error.

7.9 Provision of cash by the Supplier or its nominated Cash Provider

If item 11 of the Reference Schedule indicates that the Venue Operator is NOT required to supply the ATM with cash, then:

(a) the Supplier must ensure that the ATM is always supplied with adequate cash to enable transactions to be conducted using the ATM, and that the cash is loaded into the ATM correctly;

(b) must ensure that the ATM is stocked with sufficient quantities of receipt and journal rolls and ribbons to record all transactions effected through that ATM;

(c) the Supplier will have the right to subcontract its obligations to stock and replenish the ATM’s under this clause to a Cash Provider or some other third party as it may select provided it will at the time of such sub-contracting given written notice to the Venue Operator of the identity of such Cash Providers or third party;

(d) the Venue Operator agrees that:

(i) it must ensure that the Security Requirements are in place at the Site and the Building; and

(ii) the Supplier or the Cash Provider may in its absolute discretion from time to time, require the Venue Operator to comply with such security upgrade requirements for the Site or the Building (Upgrade Notice) . When the Venue Operator has installed the upgraded security as required by the Upgrade Notice, the Supplier will as soon as practicable inspect the Site and/or the Building and if the upgrade is to the Supplier’s or the Cash Provider’s satisfaction then the Supplier will issue a certificate of compliance (Certificate of Compliance) to the Venue Operator

(iii) if the Venue Operator does not comply with the Upgrade Notice, then the Supplier will issue a notice of non-compliance notifying the Venue Operator of its failure to effect such security (Notice of Non-Compliance) and will give the Venue Operator 15 Business Days to comply with the requirements set out in the Upgrade Notice. Once the Venue Operator has installed the upgraded security as required by the Upgrade Notice, the Supplier will inspect the relevant Site or Building as soon as practicable and if the upgrade is to the Supplier’s or the Cash Provider’s satisfaction then the Supplier will issue a Certificate of Compliance to the Venue Operator.

(iv) If the Venue Operator does not comply with the Notice of Non-Compliance from the Supplier under clause 7.9(d)(iii) the Supplier may in its absolute discretion, without any further notice, withdraw all moneys held in the ATM the subject of the Upgrade Notice until a Certificate of Compliance has been issued to the Venue Operator for that specific ATM.

(v) The Venue Operator indemnifies and keeps indemnified the Supplier and the Cash Provider against any loss or damage suffered by the Supplier and/or the Cash Provider resulting from the theft or loss of the money in the ATM during the period from the date of the non compliance notice and ending on the date of the Certificate of Compliance.

(e) At any time during the term of the agreement the Venue Operator can change from a Supplier nominated cash supply option to Venue Operator cash supply option. In that case the Venue Operator will be responsible for the security of all bank notes placed in each ATM and will indemnify the Supplier or any party claiming through the Supplier in respect of the loss, damage, misappropriation of any such bank notes; and

acknowledges and agrees that the Supplier will have no liability for any loss suffered by the Venue Operator as a result of an improperly stocked ATM, unless as a result of machine error.

8. ACCESS BY CASH PROVIDER TO SITE

8.1 Access

Subject to clause 8.2, the Venue Operator agrees to allow the Cash Provider (or its Employees) access to the ATM and the Site for the following purposes:

(a) for the Cash Provider (or its Employees) to inspect the ATM and the Site; and

(b) for the Cash Provider (or its Employees) to remove cash or parcels from the ATM.

8.2 Terms and Conditions of Access

The following terms and conditions apply to the Cash Provider (or its Employees) access to the ATM and the Site pursuant to clause 8.1:

(a) the Cash Provider (or its Employees) may only access the ATM and the Site in the company of a representative of the Venue Operator (who must make a person available for that purpose); and

(b) the Supplier:

(i) must give the Venue Operator at least 3 Business Days written notice that the Cash Provider (or its Employees) intends to access the ATM and the Site;

(ii) acknowledges and agrees that the Venue Operator will not be in breach of this agreement for any act, matter or thing done by the Cash Provider (or its Employees) in connection with the ATM and the Site whilst the Cash Provider (or its Employees) has access to the ATM and the Site (including if the Cash Provider (or its Employees) accesses the ATM and the Site for purposes other than those specified in clause 8.1 or in breach of any agreement the Supplier has with the Cash Provider which relates to the operation of the ATM located on the Site;

(iii) must not make a Claim against the Venue Operator and/or terminate this agreement for any act, matter or thing done by the Cash Provider (or its Employees) in connection with the ATM and the Site whilst the Cash Provider (or its Employees) has access to the ATM and the Site, including if the Cash Provider (or its Employees) accesses the ATM and the Site:

(A) for purposes other than those specified in clause 8.1; and/or

(B) in breach of any agreement the Supplier has with the Cash Provider which relates to the operation of the ATM located on the Site; and

(iv) indemnifies the Venue Operator against all Claims that the Venue Operator may suffer or incur as a result of any act, matter or thing done by the Cash Provider (or its Employees) whilst the Cash Provider (or its Employees) is on the Land except to the extent that such Claims are caused or contributed to by the Venue Operator or its Employees; and

(c) the Cash Provider must not remove the ATM from the Site.

9. AMOUNTS PAYABLE BY THE SUPPLIER

9.1 Rebate

(a) As consideration for Venue Operator's compliance with clause 7, if the number of Cash Withdrawal Transactions in a month exceeds the Minimum Withdrawal Transaction Threshold, then the Supplier must pay Venue Operator the Rebate for each Cash Withdrawal Transaction in excess of the Minimum Transaction Threshold. To avoid doubt, Rebate is not payable in any month where the number of Cash Withdrawal Transactions in that month is less than, or equal to, the Minimum Withdrawal Transaction Threshold.

(b) The Supplier must pay the Rebate monthly in arrears within 15 days of the end of the applicable month.

9.2 Cash replenishment

(a) If item 11 of the Reference Schedule provides that the Venue Operator is required to supply the ATM with cash, then the Supplier must promptly reimburse Venue Operator for the total amount of cash successfully withdrawn from the ATM as indicated by Supplier's records or when notified by the Venue Operator, as the case may be.

(b) If item 11 of the Reference Schedule provides that the Supplier is required to supply the ATM with cash, then subject to clause 7, the Supplier must promptly replenish cash in the ATM promptly when the Supplier's records indicate that the ATM requires replenishment or promptly when notified by the Venue Operator, as the case may be.

9.3 Usage charges and Telecommunications Service

(a) The Venue Operator must pay:

(i) for the installation of the cabling of the Telecommunications Service from the main distribution frame at the Building to the Site; and

(ii) all electricity charges associated with the use of the ATM.

(b) The Supplier must pay all ongoing monthly costs, usage fees and charges associated with the use of the Telecommunications Service and the ATM.

10. DIRECT CHARGE FEE

(a) The Supplier may charge Cardholders the Direct Charge Fee for each ATM transaction, being the amount that is specified in Item 14 of the Reference Schedule.

(b) The Direct Charge Fee may only be changed by the written agreement of the parties.

11. AMOUNTS PAYABLE BY VENUE OPERATOR

11.1 Shortfall Amount

(a) If the number of Cash Withdrawal Transactions in a month is less than the Minimum Withdrawal Transaction Threshold, then Venue Operator must pay the Supplier the relevant Shortfall Amount except to the extent that this is caused by the ATM not being operational due to circumstances beyond the control of the Venue Operator, in that case a pro rata reduction in the Minimum Withdrawal Transaction Threshold will be made for that month based upon the number of days (or part thereof), expressed as a percentage, during that the ATM was not operational.

(b) The Shortfall Amount is equal to the difference between the Minimum Withdrawal Transaction Threshold and the number of Cash Withdrawal Transactions in the relevant month (as evidenced by the Supplier's records), multiplied by the Direct Charge Fee. For example, if the Minimum Transaction Threshold is 500, the number of Cash Withdrawal Transactions in a month is 480, and the Direct Charge Fee is $2.00, then the Shortfall Amount for that month would be $40.00 (i.e. (500 – 480) x $2.00). The Shortfall Amount is not to exceed $750 per month for a Venue Operator cashed ATM and $1,250 per month for a Supplier cashed ATM.

(c) Either party may terminate this agreement if the Minimum Withdrawal Transaction Threshold is not met in at least six (6) months of the first twelve (12) months immediately following the Commencement Date by the giving of one (1) months written notice to the other party, such notice to be given not earlier than twelve (12) months and not later than thirteen (13) months after the Commencement Date.

(d) If this agreement is terminated under clause 11.1(c), then the Venue Operator must pay to the Supplier the removal costs of the ATM plus Shortfall Amount(s) payable under clauses 11.1(a) and 11.1(b).

11.2 Maintenance fees

(a) The Venue Operator is not required to pay the Supplier any fees for the Maintenance Services. The Venue Operator is only liable for the Maintenance Fees for Additional Maintenance Services.

(b) The Supplier must provide the Venue Operator with an estimate of Maintenance Fees for Additional Maintenance Services as soon as practicable and before carrying out the Additional Maintenance Services. The Maintenance Fees for the Additional Maintenance Services will be in accordance with the Supplier's usual or standard charges for carrying out those services.

(c) The Venue Operator must pay to the Supplier the Maintenance Fees for the Additional Maintenance Services within 14 days of receipt of a tax invoice, subject to any dispute regarding a tax invoice.

11.3 Fees Generally

The Supplier is entitled to set off any money due to the Supplier by the Venue Operator against any money due to the Venue Operator by the Supplier provided that full accounting and reconciliation is provided to the Venue Operator.

12. GST

This clause applies if a party to this agreement is, or becomes, liable to pay GST regarding any Supply of goods, services or anything else under this agreement.

12.1 Definitions

Capitalised expressions that are not defined in this agreement but that have a defined meaning in the GST Act have the same meaning in this clause.

12.2 GST payable in addition to consideration

If any Consideration is paid or payable or liable to be provided by a party under this agreement for any Taxable Supply by the other party (Supplier) under this agreement, then the Recipient of the Taxable Supply must pay, in addition to the Consideration, to the Supplier the GST payable on the Taxable Supply.

12.3 Tax Invoice

Within seven days of a Supply being made under this agreement, the Supplier must provide to the Recipient a Tax Invoice or other documentation that complies with the requirements for a valid Tax Invoice under the GST Act.

12.4 Payment of GST

Subject to the Supplier issuing a Tax Invoice to the Recipient as required under clause 12.3, the Recipient must pay the GST on the Taxable Supply under this agreement to the Supplier at the same time as the Recipient pays the Consideration for the Supply to the Supplier.

12.5 Reimbursement or indemnity

Despite any other provision of this agreement, if the whole or part of any Consideration under this agreement is a reimbursement or an indemnity to one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the Consideration excludes any GST included in such expense, loss, outgoing or liability incurred or to be incurred for that the other party can claim an Input Tax Credit. The other party will be assumed to be entitled to a full Input Tax Credit unless it can establish otherwise.

12.6 Adjustment Events

If an Adjustment Event occurs regarding a Supply under this agreement, the Supplier must issue to the Recipient an Adjustment Note regarding the Adjustment Event within seven days of the Supplier becoming aware of the Adjustment Event.

12.7 Additional amount

If the Adjustment Note gives effect to an Increasing Adjustment, the Recipient must pay to the Supplier the GST component of the Increasing Adjustment not later than the fourteenth Business Day of the month following the month in that the Adjustment Note is issued to the Recipient.

12.8 Credit or refund

If the Adjustment Note gives effect to a Decreasing Adjustment, the Supplier must pay to the Recipient the GST component of the Decreasing Adjustment not later than the fourteenth Business Day of the month following the month in that the Adjustment Note is issued to the Recipient.

13. DAMAGE AND DESTRUCTION

13.1 Damage, theft or destruction of the ATM

(a) If the ATM or any part of it is lost, stolen or damaged beyond economic repair, the Venue Operator must promptly notify the Supplier.

(b) If the ATM or any part of it is lost, stolen or damaged beyond economic repair and such loss, theft or damage is caused or is substantially contributed to by the Supplier or its Employees, the Supplier must replace the ATM or relevant part at its cost.

(c) If the ATM or any part of it is lost, stolen or damaged beyond economic repair and such loss, theft or damage is caused or is substantially contributed to by the Venue Operator or its Employees, the Venue Operator must replace the ATM or relevant part at its cost.

13.2 Suspension of obligations and extension of the Term

(a) Subject to clause 13.3, if the Site or the Building are damaged or destroyed and as a result either the Venue Operator, Supplier, their customers or Employees cannot use or gain access to the Site then, from the date of the damage or destruction, the obligations of each party are suspended until the Site or the Building is reinstated in accordance with this clause 13.

(b) If this agreement is not terminated under clause 13.3 and it is suspended for more than thirty (30) days, the Term and Expiry Date will be extended for the period of the suspension of this agreement that exceeds thirty (30) days. .

13.3 Supplier may terminate

(a) If the Site or the Building are damaged or destroyed, the Supplier may give the Venue Operator notice of its intention to terminate this agreement unless the Venue Operator:

(i) within 1 month of receiving the Supplier's notice of intended termination, notifies Supplier that the Venue Operator will reinstate the Building or the Site; and

(ii) carries out the reinstatement works within a reasonable time (having regard to the nature and extent of the damage).

(b) The Supplier may terminate this agreement on not less than 30 days written notice to the Venue Operator if:

(i) the Venue Operator does not give the notification to the Supplier under clause 13.3(a)(i); or

(ii) the Venue Operator gives the notice under clause 13.3(a)(i) but does complete the reinstatement works within a reasonable time (having regard to the nature and extent of the damage) after that notice.

13.4 Venue Operator may terminate

If the Venue Operator considers the damage to the Site renders it impractical or undesirable for the Venue Operator to reinstate the Site or the Building, it may terminate this agreement by giving the Supplier at least one month's notice ending on any day of the month. At the end of that month's notice, this agreement terminates at no cost to the Venue Operator and there will be no Termination Sum payable by the Venue Operator to the Supplier.

13.5 Venue Operator not obliged to reinstate

(a) Nothing in this agreement obliges the Venue Operator to reinstate the Building or the Site or the means of access to them.

(b) When reinstating the Building or the Site, the Venue Operator is entitled to change their design, fabric, character or dimensions of the Building provided that the dimensions of the Site are substantially the same as they were prior to its damage or destruction.

13.6 Antecedent rights

Termination under this clause 13 does not affect either party's accrued rights before termination.

14. USE OF THE SITE

14.1 Permitted use

(a) The Supplier must only use the Site for an ATM.

(b) The Supplier is granted access to the Building and the Maintenance Area to service and maintain Supplier's Property during Access Hours.

14.2 Restrictions on use

(a) The Supplier must:

(i) use all reasonable endeavours to minimise disturbance of other users, licensees or suppliers of the Building or adjacent premises when accessing the Building and adjacent premises;

(ii) not overload any Services;

(iii) not damage the Venue Operator's Property; or

(iv) not do anything that may invalidate the Venue Operator's insurance.

(b) The Venue Operator must not:

(i) interfere with or impede access to the Site by Supplier's customers or Employees; or

(ii) place permanent fixtures in the Maintenance Area without the consent of Supplier.

(c) If:

(i) the Venue Operator installs any property or equipment of a non-permanent nature within the Maintenance Area; and

(ii) Supplier becomes aware the installation is affecting or has the potential to affect the operation or maintenance of the ATM,

then the Venue Operator must, if requested by Supplier, remove the property or equipment from the Maintenance Area.

(d) The Venue Operator must keep clear an area 1550mm2, centred on the front of the ATM so that access to the ATM by disabled or handicapped persons is not restricted in any way.

14.3 Official Requirements

(a) At its expense, Supplier must comply with any Official Requirements arising out of Supplier's use of the Site or relating to the Supplier's Property.

(b) If any Official Requirement requires structural or capital works to be carried out, the Venue Operator must pay for them.

(c) The Venue Operator must comply with all Official Requirements concerning the Site, the Building and the Land.

(d) The Venue Operator must comply with all Official Requirements relating to the fire sprinkler and fire protection system for the Building and if requested by Supplier, the Venue Operator must provide Supplier with a copy of all certificates obtained by the Venue Operator to comply with Official Requirements.

15. DEALINGS IN THE LAND, ASSIGNMENT, NOVATION AND SERVICE CONTRACTS

15.1 Dealings in the Land

The Venue Operator may grant easements or other rights over the Land provided they do not interfere with Supplier's use of and access to the Site.

15.2 Assignment and Novation

(a) Subject to this clause 15, neither party may assign or novate this agreement without the prior written consent of the other party which consent will not be unreasonably withheld if the assigning party proposes to assign or novate this agreement to a person who

(i) proves to the reasonable satisfaction of the other party that they are a respectable, responsible and solvent person or company and is capable of adequately complying with the covenants and agreements on the assignors or novator's part contained in this agreement; and

(ii) enters into an agreement with the other party in a form reasonably required by the other party that they will duly perform and keep the covenants and agreements on the assignor's or novator's part contained in this agreement.

(b) A party must give its consent to an assignment or novation of this agreement by the other party if:

(i) The proposed assignee signs any agreement and gives any security that the party whose consent is sought reasonably requires;

(ii) the assignor complies with any other reasonable requirements of the party whose consent is sought;

(iii) the assignor is not in breach of this agreement; and

(iv) the assignor pays the reasonable costs of the other party to this agreement giving its consent.

(c) If the Venue Operator's interest or estate in the Land or that part of the Land that incorporates the Site is sold or transferred to another party (including a transfer of the Venue Operator's interest or estate under an amalgamation or de-amalgamation where the Venue Operator is a registered club), the Venue Operator must, if directed to do so by the Supplier, use best endeavours to seek the assignee's or transferee's consent to an assignment or novation of this agreement to the purchaser or transferee (including an amalgamating club if the Venue Operator is a registered club) in accordance with the requirements of clause 15.2(b)).

(d) If the new owner or transferee refuses to receive an assignment or novation of this agreement pursuant to a request made under clause 15.2(c), this agreement shall terminate on the effective on the date of the transfer or assignment of the Venue Operator's interest or estate to the purchaser or transferee, or on such earlier date which the parties may agree in writing and the Venue Operator must pay the Termination Sum. The Supplier may require the Venue Operator to pay the reasonable costs of removal of the ATM.

15.3 Service Contracts

The Supplier may outsource its obligations under this agreement to a third party without the prior written consent of the Venue Operator but any service contract entered into by the Supplier must strictly conform with the Venue Operator's security and other requirements for access to the Site.

16. INSURANCE

16.1 Supplier's insurance

The Supplier must effect and maintain insurance for public risk for at least $20,000,000.

16.2 Proof of insurance policies

The Supplier must give the Venue Operator evidence of its insurance if the Venue Operator asks for it.

16.3 Blanket insurance policy

The Supplier's obligations under this clause 16 are satisfied if the Site is included in Supplier's blanket insurance policy.

16.4 Venue Operator's insurance


(a) effect and maintain public risk insurance that provides cover to both the Venue Operator and the Supplier for at least $20,000,000 in respect of the Building; and

(b) the Suppliers’ Property including the ATM; and

(c) give the Supplier evidence of such policy if Supplier asks for it.

17. WARRANTIES, RELEASES AND INDEMNITIES

17.1 Supplier's warranty

The Supplier warrants that it will provide its services under this agreement with due care and skill.

17.2 Venue Operator's warranty

The Venue Operator warrants that it is able to lawfully grant the Supplier the rights required for it to install, operate, maintain and remove the ATM and provide the services under this agreement, and that it is authorised to seek any consents required under clause 4.1(a).

17.3 Supplier's release and indemnity

The Supplier:

(a) installs, uses and maintains the ATM and carries out all work in the Site at its own risk; and

(b) releases the Venue Operator from and indemnifies it against all Claims for damages, loss, injury or death that arise from the act, omission, negligence or default of the Supplier or tis Employees, except to the extent that it is caused or contributed to by the Venue Operator's or its Employees' act, omission, negligence or default.

17.4 Venue Operator's release and indemnity

The Venue Operator releases the Supplier from and indemnifies it against all Claims for damages, loss , injury or death that arise from the act, omission, negligence or default of the Venue Operator or its Employees, except to the extent that it is caused by the Supplier's or its Employees' act, omission, negligence or default.

17.5 Limitation of Liability

To the fullest extent permitted by law, neither party is liable for and each party releases the other from all Claims for indirect, incidental, special or consequential loss or damage whether or not the party knows of the possibility of such damage or that such damage was otherwise foreseeable.

18. CONFIDENTIAL INFORMATION

(a) If the Supplier or any Employee of the Supplier is given or becomes aware of any Confidential Information of the Venue Operator, the Supplier or that person must not disclose or misuse intentionally or unintentionally that information during or after termination of this agreement except as required by law. This clause survives termination of this Agreement.

(b) If the Venue Operator or any Employee of the Venue Operator is given or becomes aware of any Confidential Information of the Supplier, the Venue Operator or that person must not disclose or misuse intentionally or unintentionally that information during or after termination of this agreement. This clause survives termination of this Agreement.

19. DEFAULT AND TERMINATION

19.1 Default or insolvency of Supplier

The Venue Operator, if not in breach of this agreement, may terminate this agreement immediately by giving the Supplier written notice if:

(a) the Supplier suffers an Insolvency Event; or

(b) the Supplier breaches this agreement and that breach is not remedied within 30 days of the Venue Operator giving written notice requiring the breach to be remedied.

19.2 Default or insolvency of Venue Operator

The Supplier, if not in breach of this agreement, may terminate this agreement immediately by giving the Venue Operator written notice if:

(a) the Venue Operator suffers an Insolvency Event, in which case no Termination Sum will be owing to the Supplier; or

(b) the Venue Operator breaches this agreement and that breach is not remedied within 30 days of the Supplier giving written notice requiring the breach to be remedied.

19.3 Early termination by either party

If during the Term:

(a) the parties are notified (by a body that administers the Gaming and Liquor Law):

(i) that a Compliance Measure forming part of an Affecting Official Requirement will no longer be enforced or applied or will otherwise be varied; or

(ii) of an intention to vary or impose a Compliance Measure and such Compliance Measure when it becomes law would constitute an Affecting Official Requirement; and

(b) if the Supplier advises the Venue Operator that despite a notification under sub-clause 19.3(a)(i) above the Supplier intends to apply the Compliance Measure; and

(c) if a party believes that the imposition of the Compliance Measure by the Supplier (including a Compliance Measure contemplated under clause 19.3(a)(ii)) will significantly

adversely affect the earnings of a party derived from the use of the ATM(s) installed under this agreement or will significantly adversely affect the Venue Operator’s business activities on the Land (adverse affect);

then the following provisions apply:

(d) the party that will suffer the adverse affect (affected party) may give a written notice to the other party of the particulars of the adverse affect that will arise from the Compliance Measure (adverse affect notice),

(e) the recipient of the adverse affect notice may within 14 days of the notice being given, give the affected party a notice setting out the changes it agrees to make to this agreement to ameliorate the adverse affect (amelioration notice);

(f) the affected party may accept or reject the changes proposed in the amelioration notice, but may only reject the changes if it reasonably believes that, despite the changes, the party’s earnings derived from the use of the ATM(s) installed under this agreement or the Venue Operator’s business activities on the Land will be significantly adversely affected by the imposition of the Compliance Measure;

(g) the affected party must within 14 days accept or reject the proposed changes contained in the amelioration notice;

(h) if the proposed changes are accepted, the parties must enter into a written variation of this agreement or enter into a replacement agreement which gives effect to the agreed changes;

(i) if the proposed changes are not accepted within 14 days they will be deemed to be rejected;

(j) if the proposed changes are rejected, either party may (subject to clause 19.3(k)) terminate this agreement without penalty by giving not less than 30 days written notice of termination to the other party;

(k) the Venue Operator must not terminate this agreement unless and until:

(i) the Venue Operator has provided to the Supplier evidence confirming firstly the identity of another ATM supplier that is willing to supply the Venue Operator with ATM machines for the venue and secondly that the other ATM supplier will not comply with the Compliance Measure that is the subject of the notification under clause 19.3(b); and

(ii) the Supplier has not within 7 Business Days agreed in writing to match the terms offered by the other ATM supplier;

(l) if the Venue Operator terminates this agreement relying on this clause, and the other supplier implements the Adverse Official Requirement within the remaining Term of this Agreement, the Supplier will be entitled to the Termination Sum.

19.4 Early termination by the Supplier

The Supplier may terminate this agreement during the Term by giving the Venue Operator 90 days' notice if:

(a) less than the Minimum Number of Transactions are processed through the ATM in the period specified in item 12 of the Reference Schedule; or

(b) the Supplier reasonably believes there is a security risk in respect of the ATM and, or the Site.

19.5 Termination under clause 4.1(b)

This agreement may be terminated under clause 4.1(b).

19.6 Termination for requirement to move or relocate ATM

(a) If during the Term an Official Requirement or requirement of the Gaming and Liquor Law requires:

(i) the removal of the ATM from the Site or the Land; or

(ii) its relocation to another part of the Land that the Venue Operator or the Supplier acting reasonably and in good faith does not accept as a suitable new site for the ATM,

then either party may terminate this agreement, without penalty, by giving not less than 30 days notice to the other party (or such earlier period of notice if required by an Official Requirement of a requirement of the Gaming and Liquor Law).

19.7 Payment of the Termination Sum

If this Agreement is terminated before the Expiry Date by either party other than termination under:

(a) for either the Venue Operator or Supplier suffering an Insolvency Event; or

(b) clauses 4.1(b)(i)and 19.5,

(c) clauses 11.1(c) (but subject to clause 11.1(d));

(d) clause 13.4;

(e) clause 19.1;

(f) clause 19.2(a);

(g) clause 19.3(j) (but subject to clause 19.3(k)); and

(h) clause 19.4,

then the Venue Operator must pay to the Supplier on the effective date of termination the Termination Sum. For the avoidance of doubt, the Termination Sum is not payable by the Venue Operator to the Supplier if this agreement is terminated for any of the reasons set out in clauses to 19.7(a) to 19.7(h) inclusive.

20. AFTER TERMINATION OR EXPIRY

20.1 Removal of Supplier's Property

Within 14 days after termination of this agreement, the Supplier must remove the Supplier's Property from the Site or the Land.

20.2 Failure to remove

If the Supplier does not remove the Supplier's Property from the Site or the Land within 14 days after termination, then from that time, the Venue Operator may remove and store the Supplier's Property at the Supplier's expense.

21. NOTICES AND OTHER COMMUNICATIONS

21.1 Service of notices

A notice, demand, consent, approval or communication under this agreement (Notice) must be:

(a) in writing, in English and signed by an authorised person; and

(b) hand delivered or sent by prepaid post or facsimile to the recipient's address for Notices specified in the notice details of the party in item 2 or 3 (as the case may be) of the Reference Schedule, as varied by any Notice given by the recipient to the sender; or

(c) a scanned copy of any Notice emailed to the recipient's email address; and

(d) if the Notice is a notice of breach of the licence, then, the original must be also hand delivered, posted or faxed to the recipient's address for Notices specified in the notice details of the party in item 2 or 3 (as the case may be) of the Reference Schedule as varied by any Notice given by the recipient to the sender.

21.2 Effective on receipt

A Notice given in accordance with clause 21.1 takes effect when received (or at a later time specified in it), and is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); and

(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the entire Notice unless the recipient immediately informs the sender that it has not received the entire Notice,

but if the delivery, receipt or transmission is not on a Business Day or is after 5pm on a Business Day, the Notice is taken to be received at 9am on the next Business Day.

22. RELOCATION

22.1 Venue Operator alterations to Building

(a) The Venue Operator may make alterations or repairs to the Building or the Land (including the Common Areas) in its absolute discretion in the vicinity of the Site but must use its best endeavours to minimise any interruption and disturbance to the use of the ATM and the Site.

(b) The Venue Operator must notify the Supplier of building works that may affect the ATM or the Site with not less than 30 days notice, unless emergency repairs or maintenance are required.

22.2 Relocation

(a) Subject to clause 21.2(b), the Venue Operator can require the ATM and the Site to be relocated to another location on the Land or Building if it gives the Supplier at least one month's notice (relocation notice) containing details of an alternative Site for the Supplier, subject to the following:

(i) the proposed replacement Site for the ATM will be:

(A) subject to the requirements of clause 4.1(a), including the Gaming and Liquor Law and any Official Requirements;

(B) must be the same size and, in the reasonable and bona fide opinion of the Venue Operator, in a location no less suitable for the installation of the Supplier's ATM than the existing location of the Site under this agreement with regard to pedestrian traffic flow and commercial visibility;

(ii) where the existing Site cannot be used by the Supplier and the ATM is not installed and operable from the new Site for a period that exceeds thirty (30) days, the Term and Expiry Date will be extended by the period during which the ATM is relocated to the new Site (or such period as may be agreed between the parties).

(b) The Supplier may:

(i) within fourteen (14) days of the Venue Operator's relocation notice being given, give the Venue Operator a written notice advising the Venue Operator that it intends to terminate this agreement (rejection notice) unless the relocation notice is withdrawn by the Venue Operator within a period of fourteen (14) days of the Supplier giving the rejection notice to the Venue Operator; and

(ii) terminate this agreement by serving notice of termination on the Venue Operator if the Supplier gives the rejection notice and the Venue Operator does not withdraw the relocation notice within the period specified in clause 22.2(b)(i), provided that such notice of termination is given no later than fourteen (14) days after the expiry of the period in which the Venue Operator may withdraw the relocation notice under clause 22.2(b)(i). Where this agreement is terminated under this clause, it is terminated on the date that is three months (3) after the date on which the Supplier gives the Venue Operator notice of termination and the Supplier must:

(A) continue to observe all the terms of this agreement until the termination date;

(B) vacate the Site by the termination date as if it was the end of the Term;

(C) promptly sign a surrender of this agreement if requested by the Venue Operator.

(c) The Supplier will be deemed to have accepted the relocation if it does not serve a notice of termination under clause 22.2(b)(ii), even if the Supplier gives a rejection notice (but fails to give a notice of termination in accordance with clause 22.2(b)(ii)).

(d) If the Supplier accepts the relocation or is deemed to have accepted the relocation, the parties must make reasonable endeavours to comply with their respective applicable obligations under clauses 4.1(a)and 5 and the Supplier must remove the ATM from the existing Site on the day appointed by the Venue Operator or on such other date agreed by the parties.

(e) If the parties are unable, having used reasonable endeavours, to satisfy all the conditions under clause 4.1(a) within a reasonable time, then either party may terminate this agreement under clause 4.1(b).

22.3 Cost of relocation

The Venue Operator must pay Supplier's reasonable costs of relocating the ATM.

22.4 Relocation subject to this agreement

Relocation of the Site or the ATM does not give rise to a new term or new agreement, but rather the Venue Operator and Supplier will be subject to these existing terms and conditions for the remainder of the Term.

22.5 Relocation not be for locating another ATM

Despite the provisions of this clause 22 no other ATM cash dispensing equipment or EFTPOS type services or equipment may be located on the original site without the written consent of the Supplier.

23. SECURITY REQUIREMENTS

(a) The Venue Operator must:

(i) on or before the Commencement Date install at its expense alarms or an alarm system at the Site or the Land as specified on a written notice given by the Supplier or Cash Provider to the Venue Operator at least 10 Business Days (Alarm Notice);

(ii) maintain the alarms and alarm systems installed at the Site or the Land;

(iii) ensure that the alarms and alarm systems are in operation at all times; and

(iv) comply with all requirements under clause 7.9(d).

(b) The Venue Operator agrees to implement all reasonable security measures for the servicing of the ATM, that may include:

(i) temporary closure of a small area around the Site during the servicing of the ATM but subject to such closure not causing unreasonable interference with the conduct of the Venue Operator's business;

(ii) installation of security monitoring devices as required by the Cash Provider at the Venue Operator's expense; and

(iii) regular review by the parties of security measures for the Site and upgrading as necessary.

(c) If the Venue Operator does not wish to meet the security requirements of the Cash Provider, the Venue Operator must accept responsibility for supplying the ATM with cash for the remainder of the Term.

(d) The Supplier and its Employees must comply with the lawful and reasonable security requirements of the Venue Operator for access to the Site.

24. GENERAL

24.1 Governing law and jurisdiction

This agreement is governed by and must be construed according to the Laws of the State.

24.2 Parties bound jointly and individually

If 2 or more persons are named as Venue Operator or the Supplier, as the case may be, this agreement binds them jointly and each of them individually.

24.3 Severability

(a) As far as possible all provisions of this agreement must be construed so as not to be invalid, illegal or unenforceable.

(b) If anything in this agreement is unenforceable, illegal or void then it is severed and the rest of this agreement remains in force.

(c) If any provision cannot be read down, that provision will be void and severable and the remaining provisions of this agreement will not be affected.

24.4 Entire understanding

This agreement:

(a) contains the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement; and

(b) supersedes any prior agreement or understanding on anything connected with that subject matter.

24.5 Waiver

(a) No waiver by a party unless it is in writing.

(b) Despite a party's knowledge at the time, a demand for money owing by the other party or the subsequent acceptance of money does not constitute a waiver of any earlier default by the other party.

24.6 Venue Operator's consent

Unless otherwise stated, if the Venue Operator's consent or approval is required:

(a) the Venue Operator must consider the request promptly and be reasonable in giving or refusing its consent or approval;

(b) the Venue Operator may require Supplier to comply with any reasonable conditions before giving its consent; and

(c) it is not effective unless in writing.

Reference Schedule

VENUE OPERATOR NOTICE – IMPORTANT INFORMATIONSHOULD THE VENUE OPERATOR ELECT TO TERMINATE THIS AGREEMENT OTHERWISE THAN IN ACCORDANCE WITH THE RELEVANT PROVISIONS OF THE AGREEMENT AS SET OUT AT CLAUSE 19.7, THEN THE VENUE OPERATOR WILL BE LIABLE TO PAY TO THE SUPPLIER THE TERMINATION SUM. 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 PERIOD RECEIVED BY THE VENUE OPERATOR, MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE TERM.

ITEM 1(Date of agreement)

ITEM 2 (Venue Operator's name and details, including ABN/ACN, address for service of notices under clause 21)

ITEM 3 (Supplier's name and details, including ABN/ACN, address for service of notices under clause 21)

ITEM 4Land (address details of the Land where the Site is located)

ITEM 5Site(clause 2)

Description of the Site

ITEM 6Term(clause 3.1)

..................................................months

ITEM 7Commencement Date(clause 3.1)

Note – this will be the date of the first transactions

ITEM 8 Expiry Date(clause 3.1)

Note – this will be inserted after the ATM conducts its first transactions at the Site.

Commencement Date + Term

ITEM 9Minimum Withdrawal Transaction Threshold(clause 9.1(a))

ITEM 10Rebate payable to the Venue Operator (clauses 1.1 and 9.1)

ITEM 11Party that is to supply cash to the ATM (clause 9.2)

The party that is required to provide cash to the ATM is:

ITEM 12Minimum Number of Transactions during any specified period (clause 19.4(a))

............................................................(specify number)being the Minimum Number of Transactions required during any period of...........................................................(specify period)

ITEM 13Leasehold Property Expiry Date

Lease between the Venue Operator as tenant and...........................as landlord dated......................., registered no....................................(add Department of Lands registration number of the lease if applicable).

Expiry Date of Lease :..................................................

The Venue Operator expressly confirms and warrants that the Term of this Agreement does not exceed the Lease term of the Site.

Futhermore, the Venue Operator expressly confirms that it has read and understood its obligations relating to the payment of the Termination Sum as outlined in clause 19.7.

........................................................ ......................

Signed – Venue Operator Date

ITEM 14Direct Charge Fee (clause 10)

$ per ATM transaction

The Venue Operator authorises the Supplier to complete such details in this Reference Schedule after the Date of the Agreement as may be required.

EXECUTED as an agreement on the _______day of ____________________20____

EXECUTED by.............................................. ABN................................................................in accordance with section 127 of theCorporations Act 2001 (Cth):

____________________________________ ____________________________________*Director/*Company Secretary Director

____________________________________ ____________________________________Name of *Director/*Company Secretary Name of Director(BLOCK LETTERS) (BLOCK LETTERS)*please delete as appropriate

OR, IF THE VENUE OPERATOR IS A NATURAL PERSON:

Name_______________________________ ____________________________________Signature of Venue Operator.

in the presence of:

____________________________________Witness

____________________________________Name of Witness (print)

____________________________________Address

____________________________________Business Telephone No.

EXECUTION BY THE SUPPLIER:

SIGNED for and on behalf of ................................................................ by its Attorney:ABN:......................................................by its Attorney:

Name_______________________________ ____________________________________Power of Attorney No.

Address______________________________

____________________________________

Occupation___________________________

in the presence of:

____________________________________Witness

____________________________________Name of Witness (print)

____________________________________Address

____________________________________Business Telephone No.

agreement - atm machines for sale | cashpoint payment ... web viewincludes any claim, action ......

Documents