EXHIBIT 10.5
MAINTENANCE AGREEMENT QSF 9.43-4
SERVICE SALES PROCESS
QUALITY CARE
DIEBOLD(R)
Agreement No:
Commencement Date: October 1, 2002
Initial Term: Year(s) Two Years
MAINTENANCE AGREEMENT
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
NAME OF SUBSCRIBER: CARDTRONICS LP
ADDRESS: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇: Houston STATE: Texas ZIP: 77082
This Agreement is made and entered effective as of the date shown above, by and
between Diebold, Incorporated of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, an
Ohio corporation (hereinafter `Diebold") and the Subscriber, whose name and
address is set forth above.
1. Equipment Schedules
No maintenance or other services are ordered by execution of
this Agreement alone. For equipment to be covered hereby or
services ordered, an Equipment Schedule or similar document
shall be completed by Diebold and provided to subscriber. Such
Equipment Schedule shall further define the service plan or
services being provided. Each such Schedule is deemed a part
of this Agreement. In the event of conflict between an
Equipment Schedule and the provisions hereof, the provisions
of the Equipment Schedule shall control, except with respect
to paragraphs 6 and 7 hereof, which shall govern in the event
of any conflict with any other provision.
2. Service
For the fee set forth in a given Equipment Schedule, Diebold
will, by its authorized representatives, inspect and maintain
in operating condition, the equipment itemized on such
Equipment Schedule, or provide such other services as
described on the Equipment Schedule. If the service plan
described on an
Equipment Schedule includes preventive maintenance, such
preventive maintenance which Diebold deems necessary will be
provided. Diebold may provide any preventive maintenance at
the same time as Diebold is providing other service on the
covered equipment. Subscriber shall request service by
contacting Diebold.
3. Fees
The fee for services to be performed hereunder shall be as set
forth on the Equipment Schedule, or, with respect to the price
for service performed on a "time and material" basis, at
▇▇▇▇▇▇▇'▇ then current rates therefor.
4. Taxes
So long as the following described taxes are separately listed
on each Diebold invoice submitted hereunder, or the supporting
schedule attached thereto, Subscriber shall additionally pay
any and all sales, use, excise, gross receipts, value added or
other taxes imposed by any federal, state or local
governmental authority, associated with ▇▇▇▇▇▇▇'▇ performance,
excluding only taxes based on ▇▇▇▇▇▇▇'▇ net income or the
employment of ▇▇▇▇▇▇▇'▇ employees.
5. Terms of Payment
Unless an Equipment Schedule provides otherwise, Subscriber
will be invoiced quarterly in advance. All invoices for
periodic fees are due prior to the commencement date for the
applicable fee period. For Equipment Schedules added
subsequent to the date hereof. Diebold may prorate its invoice
to provide for a common invoice date for all equipment
covered. All invoices for work performed on a time and
material basis will be due on a `Net 30 days' basis. All
invoices not paid within thirty (30) days of the date due
shall bear interest at the rate of one and one-half percent
(1-1/2%) per month on the unpaid balance or the highest rate
permitted by law, whichever is less. In the event Subscriber
fails to pay any invoice when due and Diebold has provided
Subscriber three (3) days written notice of such failure,
Diebold may, in addition to any other rights and remedies
available to Diebold, suspend service under this Agreement and
any or all Equipment Schedules until Subscriber's account has
no amounts more than thirty (30) days past due.
6. Limited/Warranty
a. With respect to services provided for the quarterly
fee, Diebold warrants that it will re-perform such
services during the hours of coverage set forth in
the Equipment Schedule, that prove defective during
the term hereof, provided Subscriber notifies Diebold
during the term in the same manner as Subscriber
otherwise notifies Diebold of the need for service on
the covered equipment.
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b. With respect to parts and services provided on a time
and material basis, Diebold warrants the same to be
free of defects in materials or workmanship for a
period of thirty (30) days from the date service was
performed or from installation in the case of parts.
Subscriber shall notify Diebold within such thirty
(30) day period of any claim pursuant hereto.
c. In the event of a breach of the foregoing warranty,
the sole liability of Diebold and the sole remedy of
Subscriber shall be the repair or replacement of the
part, or re-performance of the service, which proved
to be defective.
d. EXCEPT FOR THIRD PARTY INJURIES COVERED BY ▇▇▇▇▇▇▇'▇
INDEMNITY OBLIGATION SET FORTH IN SECTION 14 BELOW,
THE FOREGOING WARRANTY CONSTITUTES THE SOLE LIABILITY
OF DIEBOLD AND THE SOLE REMEDY OF SUBSCRIBER FOR
DEFECTIVE MATERIALS OR WORKMANSHIP, WHETHER ARISING
UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER FORM
OF ACTION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED
HEREFROM.
7. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE:
▇. ▇▇▇▇▇▇▇ IS NOT AN INSURER;
ii. THE PAYMENTS PROVIDED FOR HEREIN ARE BASED
SOLELY ON THE VALUE OF THE GOODS AND
SERVICES PROVIDED AND ARE UNRELATED TO THE
VALUE OF SUBSCRIBER'S PROPERTY OR THE
PROPERTY OF OTHERS LOCATED ON SUBSCRIBERS
PREMISES OR WITHIN THE EQUIPMENT;
iii. THE PROVIDING OF SERVICE AND/OR PREVENTIVE
MAINTENANCE DOES NOT GUARANTEE THE CONTINUED
OR UNINTERRUPTED OPERATION OF THE EQUIPMENT;
AND
iv. IN NO EVENT SHALL DIEBOLD BE LIABLE FOR
LOSS, DAMAGE, OR DESTRUCTION OF SUBSCRIBER'S
PROPERTY CAUSED BY BURGLARY, ROBBERY, FIRE,
FLOOD, (UNLESS SUCH BURGLARY OR ROBBERY WAS
PERPETRATED BY A DIEBOLD EMPLOYEE WHILE
PERFORMING SERVICES HEREUNDER OR THE FIRE
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WAS DIRECTLY CAUSED BY ▇▇▇▇▇▇▇'▇ ACTIONS AT
THE ATM SITE WHILE PERFORMING SERVICES
HEREUNDER), LOSS OF OR MISDISPENSING OF
FUNDS OR OTHER DOCUMENTS OR ITEMS OF VALUE.
NOR SHALL DIEBOLD BE LIABLE FOR SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OF ANY KIND OR NATURE, WHETHER
ARISING UNDER CONTRACT, TORT, STRICT
LIABILITY, OR OTHER FORM OF ACTION, WHETHER
OR NOT DIEBOLD HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF.
b. AS A MATERIAL CONSIDERATION FOR DIEBOLD ENTERING INTO
THIS AGREEMENT THE PARTIES AGREE THAT IF,
NOTHWITHSTANDING THE FOREGOING LIMITATIONS DIEBOLD
HAS ANY LIABILITY TO SUBSCRIBER, SUCH LIABILITY SHALL
IN NO EVENT EXCEED THE QUARTERLY FEE SPECIFIED IN THE
EQUIPMENT SCHEDULE FOR THE EQUIPMENT OR SERVICE
RELATED TO THE EVENT OR FIFTEEN THOUSAND DOLLARS
($15,000.00), WHICHEVER IS GREATER. SUBSCRIBER MAY
OBTAIN A GREATER LIMITATION OF LIABILITY, IF DESIRED,
BY THE PAYMENT OF AN INCREASED ANNUAL FEE, WHICH
SHALL BE NEGOTIATED BY THE PARTIES SUBSEQUENT TO
▇▇▇▇▇▇▇'▇ RECEIPT OF SUBSCRIBER'S WRITTEN REQUEST
THEREFOR. THIS SUBSECTION (b) SHALL NOT APPLY TO
EVENTS COVERED BY SECTION 14.
c. THE PROVISIONS OF THIS SECTION 7 CONSTITUTE AN
ALLOCATION OF RISK BETWEEN THE PARTIES AND THE PRICE
CHARGED SUBSCRIBER IS BASED ON SUCH ALLOCATION OF
RISK.
8. Term
The term of this Agreement shall be for the initial term set
forth above starting on the Commencement Date. This Agreement
shall automatically renew for additional terms of one (1) year
each unless either Subscriber or Diebold gives notice of
cancellation in writing to the other at least sixty (60) days
prior to the expiration of the then current term. In the event
of any such renewal period, the maintenance fees to be paid by
Subscriber during such period shall be as set forth in the
Equipment Schedule that is attached hereto and made a part
hereof. The provisions of paragraphs 6, 7, 13, and 18 shall
survive termination.
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9. Exclusions
Except as otherwise set forth in the Equipment Schedule, the
services to be provided for a quarterly service fee do not
include:
a. service required as a result of abuse, misuse,
electrical storms, power failures or fluctuations,
glass breakage or damage, failure to follow user
maintenance and operating instructions, or the
failure or results of failure of interconnected
equipment not specified on an Equipment Schedule,
including, but not limited to, wiring, conduit, or
voice or data transmission equipment or facilities;
b. consumable items including, but not limited to, film,
audit tapes, ribbons, carrier bodies, light bulbs,
customer account cards, envelopes or video cassettes;
c. lockouts or damages caused by war, terrorism, public
disorder, fire, water or other liquids, burglary,
blasting, mining, settling of foundations, expansion
of doors or walls, loss of combinations or by
imperfect changing of combinations or time locks;
d. services required because of service, inspection, or
tampering with equipment by non-Diebold designated
personnel, relocation of equipment, changes to
configuration, installation of additional features,
options or functions; major overhauls, or
refurbishing the equipment;
e. automatic teller machine cassettes or pneumatic tube
carriers, unless specified on an Equipment Schedule;
f. the changing of any locks or combinations, or the
replacement of keys unless specified on an Equipment
Schedule;
g. requested service outside the hours of coverage set
forth on the Equipment Schedule, or waiting time in
excess of fifteen (15) minutes. If no hours are set
forth, coverage shall be from 8:00 a.m. to 5:00 p.m.
prevailing local time at the site of the equipment,
exclusive of Saturdays, Sundays, or holidays
generally observed by state or local governments in
the area where the equipment is located; or
h. malfunctions resulting from the use of media,
supplies, and/or consumables which are not furnished
by Diebold or which do not meet standards set by the
manufacturer.
If Diebold determines that the service requested by Subscriber
is excluded pursuant to the above, and Subscriber requests
Diebold to perform such service, the service will be provided
pursuant to Section 12 hereof.
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10. Parts
Unless an Equipment Schedule indicates that parts are
included, Subscriber will pay ▇▇▇▇▇▇▇'▇ then current list
price for any replacement parts necessary for the performance
of service on equipment. The parts used by Diebold to perform
maintenance and repair service hereunder will either be new or
equivalent to new. Title to parts shall pass to Subscriber
when the same are installed by Diebold. Title to parts that
are removed and replaced by Diebold shall vest in Diebold at
the time of removal. No title to any computer programs
included in parts shall ever pass to Subscriber. With respect
to such parts that include computer programs, Diebold grants
to Subscriber a personal, nonexclusive right to use such
computer programs in conjunction with the equipment while
Subscriber is the rightful possessor of the equipment. Such
license extends only to the use of the computer programs in
conjunction with specific equipment on which the same are
installed. Such computer programs are protected by the
copyright laws of the United States. Subscriber agrees not to
copy, decompose, reverse assemble, reverse engineer, or
otherwise modify such computer programs. Computer programs for
which a separate charge is normally required by Diebold are
licensed only pursuant to a separate license agreement.
11. Duties of Subscriber
During the term of this Agreement, Subscriber shall at all
times provide a suitable operating environment as specified by
the manufacturer of the equipment and operate the equipment in
accordance with the manufacturer's recommendations. If any
equipment covered by an Equipment Schedule has been furnished
by other than Diebold or InterBold, Subscriber shall have the
ultimate responsibility for obtaining and providing to Diebold
any necessary schematic drawings, wiring diagrams, or
replacement parts that may be necessary. Subscriber shall
provide free, clear and safe access to the equipment.
12. Other Services
Subscriber may from time to time request that Diebold provide
other services not included in the service plan for equipment
described on a specific Equipment Schedule, or for which no
Equipment Schedule has been completed. Diebold will use
reasonable efforts to provide such service at 90% of its then
current and standard "time and material" rates or without
discount at such other specific time and material rates that
the parties may agree upon in writing for the type of service
to be performed by Diebold. Any such service shall be subject
to the provisions of this Agreement. Subscriber may request
service pursuant to this provision by contacting Diebold. In
addition, during the initial two year Term of this Agreement,
Diebold agrees that at Subscriber's request and for the Triple
DES Conversion Fee set forth on Equipment Schedule Number 1,
Diebold will make the ATMs covered hereby Triple DES
compliant, as the same is required by the Visa, MasterCard
and/or Plus Networks. After the expiration of the initial two
year Term hereof, the Triple DES Conversion Fee will be
subject to adjustment
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by Diebold. The Conversion Fee shall only apply to the ATMs
listed on Equipment Schedule Number 1. However, the above
referenced agreement to make ATMs Triple DES compliant will
not apply to (i) any CSP 100 model ATM and/or (ii) any model
1063 ATMs that were not originally manufactured and equipped
to support Triple DES.
13. Termination
a. This Agreement may be terminated by a party without
liability as follows:
i. upon a material breach hereof by the other
party if such other party has failed to
correct, or commence to correct, such breach
within ten (10) days after notice with
respect to any breach caused by the
non-payment of any invoice and within thirty
(30) days after notice with respect to all
other breaches to such breaching party; or
ii. if the other party makes a general
assignment for the benefit of creditors,
commences voluntarily a petition under
bankruptcy or similar laws or allows an
involuntary petition to continue more than
forty-five (45) days after filling.
b. In addition to the provisions of (a) above and upon
at least thirty (30) days notice to Diebold,
Subscriber may without the payment of a cancellation
fee elect to remove up to but not more than 120 of
the ATMs identified on Equipment Schedule No. 1 as a
result of any of the following occurrences: (i)
cancellation or termination of any agreement between
Subscriber and a third party merchant permitting
Subscriber to own, operate or manage one or more ATMs
at a merchant location (a "Merchant Agreement"); (ii)
the assignment, sale or transfer of any Merchant
Agreement to any third party; or (iii) the sale of
substantially all of the assets of Subscriber to any
disinterested and unrelated third party. In all other
cases, Subscriber's removal of ATMs from the coverage
of this Agreement or the partial or total termination
thereof shall result in Subscriber's payment of a
cancellation fee equal to three percent (3%) of the
annual fee associated with the equipment being
removed therefrom for each month or part thereof from
the effective date of the removal of such equipment
or the cancellation thereof, to the expiration of the
then current term of the Agreement, but in no event
less than fifteen percent (15%) of such annual fee.
Additionally, Diebold may adjust the fee for any
equipment remaining based on ▇▇▇▇▇▇▇'▇ then current
standard volume price adjustments. Any special
provisions of any Equipment Schedule remaining shall
be equitably adjusted. Notwithstanding the above
however, Subscriber shall not be required to pay the
above referenced cancellation fee if Subscriber does
not remove an ATM hereunder solely for the purpose of
replacing Diebold as the party providing maintenance
services therefore, and provided that at all times
during the two year period following the commencement
of the term of this Agreement,
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Subscriber shall keep not less than 90% of the ATMs
covered by this Agreement at the date of the
commencement thereof subject to the terms of this
Agreement.
14. ▇▇▇▇▇▇▇'▇ Responsibility
Diebold will indemnify and hold harmless the Subscriber from
any claims made by third parties based on bodily injury to
such third persons, or direct damage to their tangible
property to the extent caused by the wrongful or negligent
acts of Diebold, its officers, directors, agents or employees,
which acts occur while Diebold employees are performing
service hereunder at the site of the ATM being serviced
hereunder. Diebold will be responsible for the theft of
Subscriber's funds or property by Diebold employees while they
are performing service to a maximum of Seventy-Five Thousand
Dollars ($75,000.00); provided, however, as to those locations
that are identified at least 30 days prior to any event giving
rise to a claim by Subscriber as routinely having more than
$ * of cash in the ATM, this limit will be increased
to $200,000.
15. Service by Others
With respect to any Equipment Schedule covering equipment that
is installed, deinstalled, relocated, altered, or serviced by
other than Diebold representatives, Diebold may require, as a
condition to accepting or continuing the equipment for service
coverage, that the Subscriber have Diebold inspect the
equipment (pursuant to Section 12) for damage and to assure
that all manufacturer-recommended changes have been made and
that the equipment is otherwise in good working order.
Subscriber shall have Diebold perform any required servicing
or repairs recommended by Diebold prior to the acceptance of
the equipment for service coverage. Diebold may also require
that service be performed pursuant to Section 12 for a
specified period of time to assure that the equipment is, in
fact, in good working order.
16. Delay in Performance
Diebold will not be liable for any delay in providing service
that is caused by fire or flood, strikes, labor disturbances,
riots, war, insurrection, acts of any governmental entity or
the public enemy, delays in nonDiebold transportation, delays
in procuring materials from third parties, unavailability of
fuel or other supplies, or any other cause beyond the
reasonable control of Diebold. In the event of such
occurrence, ▇▇▇▇▇▇▇'▇ time for performance shall be equitably
adjusted. Currently, the East Coast average cost for a gallon
of gasoline is $ * as measured by the Energy Information
Agency at its web page:
"▇▇▇▇://▇▇▇▇▇.▇▇▇.▇▇▇.▇▇▇▇/▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇".
Should the cost for a gallon of gasoline in the "East Coast"
category increase more than * percent from the price set
forth above, the service price shall be equitably increased;
provided, however, should at anytime following such an
adjustment the cost of fuel decrease to the current $ *
average price or lower and stays at such
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
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level for more than 30 days, the service price will be
readjusted downward, but in no event to a rate that is less
than that originally set forth in this Agreement. Diebold
represents that the cost of diesel fuel is not applicable to
this Agreement.
17. Modification of Agreement
Except as provided herein, this Agreement may be modified only
by a writing executed by the parties. In the event of the
addition or deletion of Equipment from coverage under this
Agreement, or other modifications of Equipment Schedule(s)
contemplated by this Agreement, Diebold shall provide a new
Equipment Schedule or other appropriate notice to subscriber.
The provisions of such Equipment Schedule or notice shall be
deemed a part of this Agreement unless Subscriber objects to
Diebold in writing within thirty (30) days of the issuance of
the same.
18. General
a. This Agreement and Equipment Schedule(s) constitute
the entire agreement between the parties concerning
any service provided by Diebold to Subscriber, and no
representation, inducement, promises or agreements
not embodied herein shall be of any force or effect.
Any purchase order or similar document issued by
Subscriber shall be deemed issued only for
Subscriber's internal administrative convenience and
shall not become a part of this Agreement. This
Agreement shall be binding in accordance with its
terms upon the parties hereto and their respective
transferees, assigns and successors in interest.
Diebold may NOT assign this Agreement to any third
party that is not affiliated with Diebold without
first obtaining the express written consent of
Subscriber, which consent may be withheld for any
reason. However, Diebold may assign this Agreement to
a wholly owned corporate subsidiary of Diebold
without obtaining Subscriber's prior written consent
thereto. Further, Diebold may utilize subcontractors
to perform services under the terms of this
Agreement, provided Diebold follows its standard
subcontractor qualification and evaluation policies
and requirements. Diebold shall advise Subscriber of
any subcontractors to be used by Diebold in
connection with services to be performed hereunder
and at Subscriber's reasonable request shall not use
any subcontractor that Subscriber has good reason to
object to. Subscriber further agrees that it will not
assign its rights under this Agreement to any
unaffiliated third party without first obtaining
▇▇▇▇▇▇▇'▇ prior written consent thereto. However,
Subscriber may assign this Agreement to a wholly
owned corporate subsidiary of Subscriber without
obtaining ▇▇▇▇▇▇▇'▇ prior written consent thereto.
This Agreement shall be binding upon Subscriber when
accepted by an authorized representative of
Subscriber, or Subscriber requests service or pays
the invoice for such service. Subscriber represents
that the person executing this Agreement on behalf of
Subscriber has all requisite authority to do so.
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b. No waiver of any right of any party shall be or
constitute a waiver of any other right of such party,
nor a waiver of any future breach by the other party.
c. Notices to be provided from one party to another
shall be deemed sufficient if given in writing and
sent by certified mail, postage prepaid, with return
receipt requested to the address of such party as
reflected herein, or such other address as a party
may identify by formal notice to the other party. Any
notice so given shall be deemed effective five (5)
days after mailing as specified herein.
d. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Ohio,
applicable to contract to be performed wholly within
such state by residents thereof. Any action arising
or resulting, directly or indirectly, from the
performance or nonperformance of Diebold shall be
brought within four (4) years after the cause of
action occurs or be forever barred.
e. If for any reason any provision of this Agreement
shall be deemed unenforceable or invalid by a court
of competent jurisdiction, such provision shall be
deemed modified so as to most closely effectuate the
intent thereof in a valid and enforceable manner. The
headings and titles contained in this Agreement are
included solely for the convenience of the parties
and shall not be used in construing the intent of the
text hereof.
f. The parties hereto acknowledge that each party has
had the opportunity to have this Agreement reviewed
by legal counsel and that no presumption shall be
applied in favor of or against any party hereto by
virtue of the fact that this Agreement may have
initially been prepared one of the parties hereto.
SUBSCRIBER ACKNOWLEDGES HAVING READ AND UNDERSTOOD ALL PAGES OF THIS AGREEMENT.
▇▇▇▇▇▇▇, INCORPORATED
(SUBSCRIBER)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- ---------------------------
(AUTHORIZED SIGNATURE) (AUTHORIZED SIGNATURE)
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President/Chief Executive Officer Title: Senior Vice President and CFO
Date: October 8, 2002 Date: September 27, 2002
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MAINTENANCE AGREEMENT - EQUIPMENT SCHEDULE 1 *
* Denotes Confidential Portion Omitted and Filed Separately with the Commission.
