5.16.23- Terms and Conditions- ATM Services- Apple Water Management (1)
ATM SERVICES- TERMS AND CONDITIONS
By entering into a related ATM Services Agreement with Apple Water Management, LLC, a California
limited liability company (including its agents, affiliates and assigns, as applicable) (“Provider”),
Customer (as defined in such ATM Services Agreement, and including affiliates and subsidiaries, as
applicable) hereby agrees to the following ATM SERVICES- TERMS AND CONDITIONS (the “ATM
Services Terms and Conditions”). Terms not otherwise defined herein shall have the meaning as set
forth in the ATM Services Agreement.
1. Provider Responsibilities and Representations and Warranties.
a. ATM Supplies: If applicable in the relevant ATM Services Agreement with Customer,
Provider will source all consumable supplies necessary for standard operation of the ATMs
(as defined in the ATM Services Agreement).
b. Processing Services: Provider shall contract with a third-party Processor to provide
transaction processing services (“Processing Services”) through an agreement with such
third-party Processor entered into in the discretion of Provider. “Processor” means a party
that provides those services which are necessary to operate a Terminal in accordance with the
bylaws and operating rules of the Networks (as defined below), as amended from time to
time; the Payment Card Industry Data Security Standards, and the published policies and
procedures of applicable banks and other applicable requirements, laws, rules and
regulations. “Terminal” means an ATM terminal. “Network” means the credit, debit, and
stored value card proprietary Networks for transmitting items and other electronic messages
and settling transactions between participants (the “Network Services”) and includes, but is
not limited to, a switch, Terminals, cards, all related computer hardware and software,
telecommunications facilities and equipment, rules, regulatory authorities, technical
specifications, logos, and marks.
c. Data Communication Services/Access: At its discretion, Provider shall contract with a third
party to provide compliant telecommunication or internet protocol devices and connections
for the transmission of data with respect to the ATMs (the “Data Communication
Services”). Provider may pass through any such charges and fees (or a portion thereof) to
Customer in connection therewith and including in connection with the fee sections and offset
sections of the ATM Services Agreement.
d. Cash Loading Services (inventory): Provider will, if applicable in the relevant ATM
Services Agreement with Customer, either directly or through an agreement with a reputable
cash loading service, maintain and make commercially reasonable efforts to keep a sufficient
amount of cash in the ATMs to meet expected ATM customer requirements, which may vary
from time to time (the “Cash Handling Services”).
e. Cash Inventory: Provider will, if applicable in the relevant ATM Services Agreement with
Customer, provide Cash Inventory for proper use and operation of ATMs. “Cash Inventory”
means United States legal tender issued in the form of a Federal Reserve Note by the United
States Federal Reserve Banks or a United States Note by the United State Treasury
Department, owned by Provider and provided for the use and operation of the ATMs detailed
in the ATM Services Agreement. Customer expressly acknowledges the ownership rights of
Provider in and to the Cash Inventory provided by Provider for use in the ATMs. The parties
acknowledge and agree that until dispensed from an ATM to a customer of that ATM, the
Cash Inventory shall be the sole and exclusive property of Provider and neither Customer, nor
any third party shall have any interest (including without limitation, legal, equitable or
security interest) in or to such Cash Inventory. In no event will legal title to the Cash
Inventory pass to Customer.
f. Programming, Installation and Bring-Live of ATMs: Provider shall handle initial
programming, installation and bringing live of the ATMs pursuant to, and as set forth in, the
ATM Services Agreement.
g. Representations and Warranties of Provider: Duly Organized: Provider is duly formed,
validly existing and in good standing under the laws of the state of its incorporation and is
authorized to do business in each state in which the nature of their activities makes such
authorization necessary. Authority: Provider has power and authority to execute and deliver
this Agreement (including the exhibits hereto) and to perform its obligations under this
Agreement (including the exhibits hereto). No Conflict: These terms and conditions and the
ATM Services Agreement, and the provisions herein and therein, do not conflict with any of
Provider’s governing documents or any other agreement, contract, lease or obligation to
which Provider is a party or by which it is bound.
2. Fee Matters.
a. General: Fees are as set forth in the ATM Services Agreement between the parties.
b. Interchange Fees: Interchange fees (or similar such industry standard term) are not
subject to split or share with Customer regardless of if all or a portion thereof are
received by Provider.
c. Advertising and Marketing Income: Any and all income related to advertising and/or
marketing shall solely be income to be paid to Provider and Provider shall control all
such marketing and advertisement rights with respect to the ATMs at the Sites.
3. Customer Responsibilities and Representations and Warranties.
a. Location of ATMs/ATM Placement &; Compliance with Law: Customer either owns,
rents, leases or has other (direct or indirect) written authority or control to place ATMs at
each of the Sites as set forth in the ATM Services Agreement, including Exhibit A
thereto. The Sites are (at all times) authorized for their applicable commercial purposes in
accordance with local and State laws and regulations (and including as permitted and
licensed retail premises if required in compliance with law). Customer will make any
such agreements, instruments, permits and/or licenses or other authorizations available to
Provider upon request. Customer will notify Provider of any changes of such rights or
locations in advance thereof and pursuant to continuous reporting requirements in
accordance with laws and regulations, ATM Regulations (as defined below) and/or
Network or Processor requirements and any other third-party requirements (including as
otherwise set forth under any agreements, instruments or authorizations related hereto or
thereto). All ATMs shall be placed in areas that are open to customers during business
hours and shall not be placed in any “limited access areas”, restricted areas or the like (as
set forth in the DCC Regulations- defined below- if pertaining to licensed cannabis retail
premises; the ATM Regulations more generally; or other relevant laws, rules and
regulations). Prior to placement of any and all ATMs at any and all Sites, Customer shall
ensure that such placement will not, in any case, trigger any reporting, notification, or
agency approval requirements or other authorizations under the California Code of
Regulations, Title 4, Division 19 (the “DCC Regulations”); ATM Regulations; or any
other applicable cannabis or non-cannabis laws, rules and regulations in the applicable
locality, and State of California or other jurisdiction(s), in each case, as applicable. If any
reporting, notification, or agency approval requirements or authorizations are triggered,
Customer shall be responsible for ensuring the compliance with the same prior to the
installation of any and all ATMs, as applicable. Customer shall ensure supply connection
as well as electrical power for the ATMs and, at its expense, the related electrical power
outlet and charge (110V) with isolated ground within 2 feet of the ATM; ensure the
maintenance of the area around the ATM so it is clean, safe, accessible, and visible to the
general public; ensure general compliance with laws, rules and regulations in connection
with ATM placement; ensure a suitable operating environment as specified by the
manufacturer of the ATMs and general best practices; and ensure that no posting of any
signs, plaques, advertising or other materials are placed on the ATM, except as
authorized by Provider and in accordance with this agreement and the ATM Services
Agreement and applicable ATM Regulations and other laws, including, without
limitation, such laws governing trademarks and other intellectual property. Without
limiting the foregoing, Customer shall ensure compliance with ATM Regulations at all
times in such placement and otherwise with respect to the ATMs and Sites. “ATM
Regulations” means all local, state and federal laws, rules and regulations, including,
without limitation, Regulation E, FinCen, the Americans with Disabilities Act (ADA),
and Network and sponsoring financial institution regulations and requirements, and other
statutes, codes, ordinances, laws, regulations, orders and decrees of any regulatory
authority or other governmental or quasi-governmental authorities and agencies,
regarding the deployment and use of the ATMs and execution of these terms and
conditions and the ATM Services Agreement and including, without limitation, any
necessary related registration and licensing or permitting requirements, as applicable.
This obligation shall include, without limitation, any and all claims for contractual,
tortious, or statutory damages of any nature whatsoever and any and all injunctive or
other equitable relief, as well as reasonable attorney’s fees and court costs.
b. Exclusive Arrangement: Customer must maintain exclusivity with Provider as set forth
in the ATM Services Agreement between the parties.
c. Processing-Related Requirements: Customer shall work with Provider to adequately
display on the ATM all program symbols, service-marks and names that inform the
public of qualifying cards and Networks. Customer additionally agrees to complete any
documents required by Processor or Provider to facilitate the implementation and
delivery of the Processing Services.
d. Network-Related Requirements: Customer shall comply with any Network-related
requirements and agrees to complete any documents required by Network or Processor or
Provider to facilitate the implementation and delivery of the Network Services.
e. Insurance: Insurance will be procured as set forth in Exhibit A to the ATM Services
Agreement. If no terms of insurance are provided therein, in connection with this
Agreement, including the exhibits hereto, and the related agreements, Customer shall
maintain comprehensive general liability insurance, including products and contractual
liability insurance, in an amount not less than one million dollars ($1,000,000) combined
single limit with an insurance company qualified to do business in the state(s) in which
the ATMs are located, with Provider named as an additional insured, including, without
limitation, protecting the parties from any injuries or damages claimed or sustained by
any person using or attempting to use the ATMs. Customer will pay Provider an
additional insurance fee of twenty dollars ($20.00) per month per ATM subject to, and
without limiting, the other payment provisions of these terms and conditions and the
ATM Services Agreement. Any changes or modifications to these insurance policy
requirements will be set forth in the ATM Services Agreement Exhibit A, if applicable.
f. Representations and Warranties by Customer: Duly Organized: Customer is duly
formed, validly existing and in good standing under the laws of the state of its
incorporation and is authorized to do business in each state in which the nature of their
activities makes such authorization necessary. Authority: Customer has full power and
authority to execute and deliver the ATM Services Agreement (including the Exhibits
hereto) and these terms and conditions and to perform all of its obligations hereunder and
thereunder (including, without limitation, to the extent Customer or contracting party
includes ATMs and Sites of its affiliates and/or subsidiaries). No Conflict: Such
agreements and terms and conditions and the provisions herein and therein do not conflict
with any of Customer’s governing documents or any other agreement, contract, lease or
obligation to which Customer is a party or by which it is bound and to not conflict with or
violate any ATM Regulations or other applicable laws. IP Licenses: Customer has, or
will timely obtain, in connection with the ATM Services Agreement or these terms and
conditions, any and all applicable inbound and outbound intellectual property licenses
and/or authorizations, as applicable or necessary, to enable Provider’s services hereunder,
including in respect of software and other items to be displayed on the ATMs. No
Litigation/Actions: There is no pending or threatened litigation or proceeding, judicial,
tax or administrative proceedings against Customer or Customer’s principals, the
outcome of which might materially or adversely impact the continuing operations of
Customer or the ability of Customer to enter into the ATM Services Agreement or these
related terms and conditions or to comply with ATM Regulations or other applicable
laws, rules and regulations. Permits/Licenses: Customer directly or indirectly, has any
necessary permits, licenses and authorizations to perform the ATM Services Agreement
and these terms and conditions and the agreements related thereto and hereto.
Compliance with Law: Customer operational responsibilities and Customer’s
performance of the ATM Services Agreement and these terms and conditions, have been
and will be, completed, at all times, in compliance with ATM Regulations and any other
applicable local, state and federal laws, rules and regulations and policies and procedures
in connection with the ATMs and Customer maintains and will maintain documentation
of such compliance. Marketing: Customer has no rights to, and will not prevent or
prohibit Provider from, controlling or exhibiting, marketing or advertisement on the
ATMs, provided that such marketing or advertisement is not disparaging to Customer.
4. Limitations on Liability; and Force Majeure Matters: Liability: The sole liability of Provider
under these terms and conditions and the ATM Services Agreement and with respect to the
services of Provider generally, and the sole remedy of Customer shall be, the repair or
replacement of ATM parts or re-performance of ATM services/operations contemplated in the
ATM Services Agreement and herein, if such services are actually deemed defective. Customer
acknowledges that such limitation of liability exclusively to this remedy does not cause these
terms and conditions, the ATM Services Agreement and any related agreements to fail of its
essential purpose or otherwise render such agreements (including the exhibits thereto) or the
related agreements invalid or unenforceable. THE FOREGOING CONSTITUTES THE SOLE
LIABILITY OF PROVIDER AND THE SOLE REMEDY OF CUSTOMER FOR DEFECTIVE
MATERIALS, SERVICES OR WORKMANSHIP, WHETHER ARISING UNDER
CONTRACT, TORT, STRICT LIABILITY OR OTHER FORM OF ACTION. ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
DISCLAIMED. In no event shall Provider be liable for any special, incidental, or consequential
damages of any type or nature, or for any lost profits, lost income or loss of business opportunity
regardless of whether such damages or losses are alleged to arise under contract, tort, strict
liability or any other form of action and whether or not Provider has been advised of the
possibility thereof or whether or not the same are reasonably foreseeable or occur due to the
inaction or action of Provider. The obligations in this section constitute an allocation of risk
between the parties hereto and the prices charged by Provider or surcharge or fee splits of
Provider for the related services herein and in the ATM Services Agreement and parts in respect
of such services are based on such allocation of risk. The payments or fees provided for in the
ATM Services Agreement are based on the value of the goods and services provided and are
unrelated to the value of Customer’s property or the property of others located at the Site or
within the Equipment. Notwithstanding the foregoing or anything to the contrary herein, in any
case in respect of these terms and conditions and the ATM Services Agreement (including the
exhibits thereto) and the related agreements, Provider will only be liable for losses directly
resulting from the gross negligence or willful misconduct of Provider (or Provider’s employees or
agents) up to the Cap set forth below. The total liability of Provider for loss from any individual
ATM shall in no event exceed $5,000 (the “Cap”). CUSTOMER AGREES THAT PROVIDER
DOES NOT UNDERTAKE THE OBLIGATION OF AN ABSOLUTE INSURER IN THE
PERFORMANCE OF THIS AGREEMENT AND THE RELATED AGREEMENTS
(INCLUDING THE EXHIBITS THERETO). Without limiting the foregoing, Provider shall not
be liable for losses from Customer’s ATMs resulting from: (a) a machine malfunction; (b)
currency dispensed due to mistake for fraudulent instruction manually or electronically
transmitted to the ATM; (c) ATM equipment hardware malfunction; (d) mistakes in verification;
(e) currency shortages; (f) improperly sealed deposit envelopes, as applicable; (g) deposits
claimed to be contained in an ATM, but which were not actually deposited and available to
deliver to customer, as applicable; (h) amounts said to be contained in deposit envelopes or
deposits opened by customer and found to contain an incorrect amount, as applicable; (i) access
to ATM by third parties not granted by Provider; (j) breaking and entering or burglary or other
theft of the ATM; or (k) from any other causes not directly attributable to the gross negligence or
willful misconduct of Provider (or its employees or agents). Force Majeure: Provider will not be
liable for any delay or for failure to perform its obligations hereunder resulting from any cause
beyond Provider’s reasonable control, including, but not limited to: Customer’s failure to timely
supply Provider with necessary data, information or specifications if in fact Customer has agreed
to supply any such data, information or specifications to Provider; any changes in any such data,
information or specifications made by Customer; acts of God; weather; fire; explosions; floods;
strikes; work stoppages; pandemics; endemics; slow-downs or other industrial disputes;
accidents; riots or civil disturbances; dangerous conditions which present a threat to the safety of
Provider or Provider personnel; acts of government; inability to obtain any license or consent
necessary in respect of any unit of equipment; and delays by suppliers or material shortages or
illegality. Scheduled performance dates shall be extended by any such causes.
5. Indemnification: Customer indemnifies, defends and holds harmless Provider and Provider’s
employees, agents, officers, directors, corporate parents, representatives, affiliates and assigns
(the “Indemnified Parties”), against any and all claims, liabilities, losses, damages, costs, actions
or expenses (including, without limitation, fees and expenses of attorneys’ and court costs)
arising due to or in connection with: (i) the negligence, recklessness, or willful misconduct, of the
Customer or any of its agents, affiliates, employees, representatives or assigns (the
“Indemnifying Parties”) in performance of these terms and conditions and in performance of the
ATM Services Agreement and any related agreements; (ii) any Indemnifying Party’s breach of
these terms and conditions and/or the ATM Services Agreement (including the exhibits thereto)
and the related agreements, as applicable; or (iii) the failure of the ATMs to operate in
compliance with applicable local, state or federal laws or regulations, or other required policies
and regulations, including, without limitation, in connection with Network or Processor or Cash
Handling Services, and including ATM Regulations and other applicable rules, laws and
regulations, and including, without limitation, such ATM Regulations as relate to cannabis-and-
non-cannabis-related laws, rules and regulations, in each case as applicable, except with respect
to services solely in the operational control of Provider under the ATM Services Agreement as
applies to compliance with ATM Regulations.
[END- ATM SERVICES TERMS AND CONDITIONS]