Exhibit 99.3
EXCLUSIVE AUTOMATED TELLER MACHINE
SERVICES AGREEMENT
BETWEEN:
4CASH, A DIVISION OF IRMG INC. (4CASH)
100 Allstate Parkway, Suite 500,
Markham, ON
L3R 6H3
AND:
TrackPower, Inc.
13980 Jane Street,
King City, ON
L7B 1A3
WHEREAS TrackPower Inc. operates through a Strategic Partnership with Post Time
Technologies (hereafter referred to in this Agreement as TPWR) as a marketing
and information services company to Racetracks and Gaming facilities (defined as
Horseracing Tracks, Greyhound Tracks, Off Track Betting Establishments or
"OTBs", Sportsbooks and Casinos) (collectively "the Location"). Hereinafter,
TPWR and the Location are jointly referred to as the Contracting Parties
("Contracting Parties") and will be contractually bound by a Location Agreement
("Location Agreement").
AND WHEREAS 4CASH operates as Automated Teller Machines (ATM) equipment and
service supplier wishes to install one or more ATM(s) in any or all of the
Locations, with or without a combination of Information Kiosks ("Info Kiosks"),
on the terms and conditions set out in this Service Agreement ("Service
Agreement").
IN CONSIDERATION of the mutual covenants set out in this Service Agreement, the
Contracting Parties agree as follows:
TPWR grants to 4CASH the exclusive right to act as their ATM Partner (ATM Group)
to install, maintain and operate ATMs within the Locations that TPWR negotiates
a contract with at any Racetrack or Gaming related facility, with or without
accompanied Information Kiosks, in a space ("the licensed space") mutually
agreed upon between 4CASH and the Contracting Parties. The licensed space should
include all space occupied by the ATM and all area within a radius of three feet
therefrom up to, but excluding, the walls and ceiling of the Location. No fee or
rent shall be charged for the use of the licensed space, except as described in
the revenue sharing structure as set out in section 5.0.
4CASH grants to TPWR the exclusive right to act as their Sales and Marketing
representative to any Racetrack or Gaming related facility.
4CASH will supply, install and commission the ATM's to process transactions at
its expense, with surcharges and revenue sharing structure as set out in Section
5.0.
1.0 INSTALLATION, MAINTENANCE AND FUNCTIONING OF THE ATM
1.1 4CASH shall be allowed access to the Location as of the date of
signing of the Location Agreement to install the ATM in accordance
with all relevant laws, and in a good and workmanlike manner, and
thereafter shall be allowed access for service purposes. The
Contracting Parties must supply an electrical outlet or outlets for
the purposes of connection of the ATM.
1.2 All installation costs shall be the responsibility of 4CASH, except
the supply of an electrical outlet or outlets. The Location will be
responsible for the cost of all services and utilities payable for the
licensed space, except telephone line hook-up and the installation of
the ATM, which will be the responsibility of 4CASH. 4CASH shall be
allowed access to the location's electrical panel and telephone lines
for the purposes of ATM installation. 4CASH will use its best efforts
to install the ATM in a manner, which will minimize, to the extent
possible, disruption to the Location's business.
1.3 All levels of maintenance of the ATM will be the responsibility of
4CASH and the Contracting Parties will perform no maintenance on the
ATM. The Contracting Parties will provide reasonable access to 4CASH
and its agents to the machine for any required maintenance. The
Contracting Parties shall, in addition, keep the machine unobstructed
at all times, and will use its best efforts to ensure that the machine
is not misused or vandalized.
1.4 The Contracting Parties will promptly report to 4CASH any machine
faults or other conditions which prohibit transactions from being
processed, to the extent only that the Contracting Parties are made
aware of or notice any such faults or conditions in the course of ATM
users notifying the Contracting Parties. The Contracting Parties will
not, however, be responsible for the regular inspection of the ATM to
ascertain whether there are any faults or conditions prohibiting
transactions from being processed.
1.5 4CASH shall ensure that the ATM is in operation and processing
transactions during all business hours of the location during the
Initial Term and any subsequent renewal term(s). Non-functioning of
the ATM for a period in excess of seven (7) days may constitute breach
of performance, except where the inability for 4CASH to render the ATM
operative is due to electrical and/or telephone difficulties or other
circumstances beyond the control of 4CASH.
1.6 Failure by either party to comply with these provisions may constitute
breach of performance.
2.0 RIGHT OF TERMINATION
2.1 Location Agreement
In the event of any breach of performance and/or default within terms and
conditions set forth in the agreement pertaining to the Location Agreement,
and the failure of such defaulting party to cure such default within seven
(7) calendar days after receipt of written notice specifying the event or
default claimed, the terminating party may give immediate notice of
termination at any time thereafter subject to the terms set forth in 1.5 of
this agreement. Upon termination of such agreement, 4CASH shall remove it's
ATM and any other equipment or property within seven (7) days of
termination. A termination of any Location Agreement will not be considered
a default or breach of performance of this Service Agreement.
4CASH has the right to terminate a Location Agreement at any time should
the transaction volumes not meet the minimum annualised transactions as
determined in each Location Agreement. Upon termination of such agreement,
4CASH shall remove its ATM and any other equipment or property within seven
(7) days of termination. A termination of any Location Agreement pursuant
to this clause will not be considered a default or breach of performance of
this Service Agreement.
2.2 Service Agreement
2.2.1 Termination for Default of the Service Agreement. If not
terminated sooner in accordance with the terms hereof, either
TPWR or 4CASH may terminate this Service Agreement upon the
default of the other party under this Service Agreement and the
failure of such defaulting party to cure such default within
thirty (30) calendar days after receipt of written notice
specifying the event or default claimed. If such default is not
cured within the thirty (30) day period, the terminating party
may give immediate notice of termination at any time thereafter.
2.2.2 Termination Upon Insolvency. 4CASH and the Contracting Parties may
terminate this Services Agreement forthwith upon notice to the other
party if:
2.2.2.1 either party applies for or consents to the appointment
of, or the taking of possession by, a receiver or
receiver/manager, custodian, administrator, trustee,
liquidator, or other similar official for a party or for
all or any part of its business; or,
2.2.2.2 any proceeding against either party:
(i) has adjudicated it as bankrupt or insolvent;
(ii) has resulted in the liquidation, dissolution, winding up,
reorganization, arrangement, protection or relief or
composition of a party or its debts under any statute,
rule or regulation relating to bankruptcy, insolvency,
reorganization, relief or protection of debtors, or at
common law or in equity; or
(iii) has resulted in an appointment of a receiver or
receiver/manager for a party or for all or any material
part of a party's assets and such appointment has not been
stayed or discharged by it within ten (10) days from the
date made.
2.2.3 Payment Due Upon Termination. Upon termination of this
Services Agreement, all monies owing by the Contracting
Parties to 4CASH or by 4CASH to the Contracting Parties,
together with any and all interest accrued and unpaid
thereon, shall be due and payable at the time of
termination.
3.0 TERM AND RENEWAL
3.1 The Service Agreement is in effect for a period of three (3) years,
commencing on the execution of this agreement ("Initial Term")
provided, however that either party for cause on 180 days prior
written notice may terminate said Agreement. Cause shall constitute
any and all fraud, deceit or dishonesty. The Services Agreement shall
be automatically renewed for a successive two (2) year period at the
end of the Initial Term and at the end of each renewal term until the
Services Agreement is terminated by either party giving written notice
to the other party at least one hundred and eighty (180) calendar days
before the end of the Initial Term or any renewal term. However, the
Contracting Parties and 4Cash will be remain bound to the terms of
this Service Agreement even if such Agreement has terminated, to
ensure the obligations are met for any existing Location Agreement
that has yet to expire.
4.0 ADVERTISING
4.1 Each of 4CASH and the Contracting Parties shall have the right to
advertise that 4CASH has placed an ATM at the Location. 4CASH must
obtain written approval from the Contracting Parties as to all
advertisements referring to or showing the Contracting Parties' names,
trademarks, or logos, and, the Contracting Parties shall obtain
written approval from 4CASH as to all advertisements referring to or
showing 4CASH's name, trademark, logo or it's ATM
4.2 4CASH has the right to acquire third party advertising including, but
not limited to, video terminal display, skin coverings, or
reproduction on receipts, subject to the following conditions:
4.2.1 4CASH covenants that any such advertising will not be for any
establishments considered to be a competitor to the Contracting
Parties or any related businesses which are operating at the
locations subject of this Services Agreement.
4.2.2 Any third party advertising contemplated in this section shall
be in compliance with applicable advertising regulations and/or
legislation.
4.2.3 Approval of the Contracting Parties is obtained in writing for
all acquired third party advertising including, but not limited
to, video terminal display, skin coverings, or reproduction on
receipts.
5.0 REVENUE SHARING
5.1 4CASH will receive (*) of the ATM revenues up to the minimum
transaction level determined within each Location Agreement. Out of this
revenue 4CASH will reimburse TPWR their direct operating costs as described
in Schedule A. attached and 4CASH will retain their direct operating costs
as estimated in Schedule B. attached, when applicable.
5.2 In the event that Info Kiosks are not installed at a Location but ATMs
are, the ATM revenues will be shared between 4Cash and TPWR as described in
section 5.3.
5.3 If the Location takes (*) of the Transaction Fee 4CASH must always
receive (*) of the whole transaction fee and (*) of the whole interchange
fee. However, if the Location takes more or less than (*) of the
transaction fee, or any portion of the interchange fee, 4Cash and TPWR will
equally share the lost or gained percentages.
(*) Withheld due to competitive reasons.
6.0 TITLE OF THE MACHINES
6.1 The ATM shall remain the property of 4CASH and 4CASH will not be
obstructed from removing the ATM for any reason that is in accordance
with this Agreement and the Contracting Parties shall not have the
right to seize the ATM for any reason not in accordance with the terms
of this Agreement
7.0 INSURANCE AND LIABILITY
7.1 4CASH shall maintain general liability insurance under its blanket
insurance policy to a minimum of one million dollars ($1,000,000.00)
per occurrence for personal injury and property damage with respect to
its operations in the licensed space in which the Contracting Parties
shall be named as insureds as their interests may appear. TPWR will be
provided with copies of said policy or policies.
7.2 4Cash and TPWR agree to equally share the costs of any additional
insurance that may be required by the Location
8.0 REMOVAL OF MACHINES
8.1 At the termination of this Services Agreement or any renewals thereof,
4CASH shall immediately remove at their own expense the ATM and all
signage, restoring the premises where removal occurs to its original
condition and repairing any damage caused by the removal, reasonable
wear and tear expected.
9.0 EXCLUSIVITY
9.1 TPWR covenants that it will not install any non-4Cash ATM in
Racetracks or Gaming facilities for the duration of this Agreement.
10.0 NOTICES
10.1 Where it is required in the Agreement that notice is given, the notice
shall be in writing and shall be delivered in person, by confirmed
facsimile or sent by registered mail postage prepaid to the following
addresses:
To TPWR at: 13980 Jane Street
King Street, Ontario
L7B 1A3
Attention: John Simmonds
Copy to:
Post Time Technologies Inc.
C/o Suite 201 - 68 East 2nd Avenue
Vancouver, B.C.
V5T 1B1
Attention: Hardave Gill
To 4CASH at: 100 Allstate Parkway, Suite 500
Markham, Ontario
L3R 6H3
Attention: Steve Cussons
Or at such other address as TPWR or 4CASH shall designate by written
notice. Any notice shall be deemed to have been given on the date on
which it is delivered or if mailed, on the third business day
following such mailing, and in the case of mailing subject to the
duration of any interruption in the postal services.
11.0 REPRESENTATION
11.1 Each of TPWR and 4 CASH, represents that it has the full right and
authority to enter into this Services Agreement.
12.0 TRANSFER
12.1 This Agreement shall not be transferred or assigned by either party
without the written consent of the other party.
13.0 ENTIRE AGREEMENT
13.1 This Agreement and any attached Schedules form the entire Agreement
between the parties and shall not be modified, amended or replaced
except by a further written agreement duly executed by the parties.
Agreed to on this ____day of June, 2001 Agreed to on this ____day of
On behalf of TrackPower Inc. June, 2001 On behalf of 4CASH a
division of IRMG Inc.
/s/ John Simmonds /s/ Stephen Cussons
- -------------------------------- ---------------------------------
John G. Simmonds, Steve Cussons,
Chairman & CEO President