Air/Vac EQUIPMENT OPERATING AGREEMENT
This agreement (“Agreement”) is made on the date signed below (“Effective Date”) by and between Crossroads Airservice, LLC (“CAS”) and the party identified in the signature block below (“Merchant”).
1. General. Merchant grants to CAS the exclusive right to supply, install, operate and maintain coin-operated air and/or vacuum machines (the “Equipment”) for use by Merchant’s customers at the location(s) now or as may hereafter be set forth in Exhibit B (the “Location(s)”) pursuant to the terms of the Agreement. Merchant represents and warrants that it is not bound by any existing agreement that conflicts with the rights granted hereunder. The General Terms and Conditions attached hereto as Exhibit A are, for all purposes, incorporated herein and deemed to be part of this Agreement.
2. Term. This Agreement will commence upon the Effective Date and will continue for a period of sixty (60) months, AND SHALL AUTOMATICALLY RENEW AT THE END OF THE TERM OR ANY EXTENDED TERM FOR A LIKE TERM OF THE SAME NUMBER OF YEARS UNLESS the merchant gives CAS written notice of termination of this agreement by Certified mail not less than ninety (90) days before the end of any term.
3. CAS’s Obligations.
CAS shall:
a.) install Equipment that complies with Merchant’s specifications and applicable law;
b.) continue to own the Equipment at all times hereunder;
c.) collect money and/or electronic payment from the Equipment and share revenues with Merchant as specified herein;
d.) provide coin meters or online machine usage reports so that Merchant may verify collections;
e.) provide a 24 hour toll-free telephone number whereby Merchant may contact CAS to report any need of service or repair;
f.) maintain in force with a financially responsible insurance company, casualty and product liability insurance policies with limits of not less than $1,000,000 for losses that arise as a result of any occurrence; and
g.) obtain all licenses or permits necessary for the operation of the Equipment, provided however, the costs of any permits required that are specific to the Location(s) shall be paid out of the gross revenue of the collections prior to the revenue share calculation.
4. Exclusivity. CAS shall have the exclusive rights to operate the Equipment and Merchant shall not permit the right, use or installation of any other equipment providing similar service, coin-operated, electronic payment or otherwise, on the Location(s) listed on this agreement to any other entity (including Merchant) or person during the term of this Agreement.
5. Location(s). The Location(s) covered by this Agreement are all the locations listed on Exhibit B. Additionally, CAS shall have the right (but not the obligation) to install, operate and maintain Equipment at (i) all locations the Merchant purchases, leases, builds or otherwise acquires during the term of this Agreement, and (ii) all locations currently serviced by a third party upon expiration and termination of such third party contract. Merchant shall promptly notify CAS in writing of all new locations within five (5) business days of (a) acquiring the location or (b) the expiration or termination of the third party contract. CAS shall notify Merchant within ten (10) business days of receipt of such notice from Merchant whether CAS is exercising its right to service Equipment at such new locations. Any new locations that CAS agrees to service shall be added or deemed added, to Exhibit B and considered Location(s) purposes of this Agreement.
6. Vend Price. The initial vend price charged to customers for use of the Equipment will be:
Coin Credit Card
For tire inflation Equipment: $__ 2.00_ $__ 2.00
ATMS INDIANA, in its sole discretion, may increase the vend price from time to time by providing thirty (30) days prior written notice to Merchant.
7. Commission Payments. Merchant’s initial commission shall set from the Per Trans. Fee on the Air Machine Placement Form. CAS shall pay commissions to Merchant on net revenues collected from the Equipment. Commissions shall be paid within forty-five (45) days of the end of each calendar quarter. Merchant shall provide electrical service to the Equipment and pay the costs of providing the electricity to operate the Equipment. CAS shall pay for the costs of installing the Equipment on the Premises.
8. Service/Maintenance. Within four (4) business days of the date CAS receives notification from Merchant that Equipment is inoperable CAS shall repair the unit. If unit is not repaired within four (4) business days, CAS shall pay to Merchant (at the time it pays the commission payment) Merchant’s “daily revenue share” for each day the Equipment remains inoperable beyond four (4) days. The “daily revenue share” shall equal Merchant’s share of average daily revenues generated by the unit during the prior quarter.
9. Liquidated Damages. The length of the term hereunder is a major inducement to the CAS entering this Agreement and materially affects the determination of the amount of commission to be paid Merchant. Merchant expressly acknowledges that any breach of this Agreement by merchant resulting in its termination before the expiration of its stated term would cause the CAS to suffer damages the amount of which could not be precisely ascertained. The Parties further agree that the following formula will result in a reasonable estimate of the amount of the probable loss of profits CAS may be expected to suffer as a result of Merchant’s breach of this Agreement:
CAS’s average daily revenue share times the number of days the Merchant is in default of this Agreement.
10. Disputes. Notwithstanding any other provisions herein to the contrary, if any action or proceeding is brought by CAS or Merchant to interpret the provisions hereof or to enforce either party’s respective rights under this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party therein, in addition to all other remedies, all costs incurred by the prevailing party in such action or proceeding, including reasonable attorneys’ fees.
11. Entire Agreement. This Agreement contains the parties’ sole and entire agreement regarding the subject matter hereof, and supersedes any and all other agreements between them.
12. No Modifications Or Waivers
a.) Waivers or modifications of this Agreement, or of any covenant, condition, or limitation contained herein, are valid only if in writing. Such writing must be duly executed by the parties.
b.) One or more waivers or modifications of any covenant, term or condition in this Agreement by any party shall not be construed by any other party as a waiver or modification applicable to any subsequent breach of the same covenant, term or condition. Evidence of any such waiver or modification may not be offered or received in evidence in any proceeding, arbitration, or litigation between the parties arising out of or affecting this Agreement, or a party’s rights or obligations under it. This limitation does not apply if the waiver or modification is in writing and duly executed as provided above.
13. Cooperation and Further Actions. The parties agree to perform any and all acts and to execute and deliver any and all documents necessary or convenient to carry out the terms of this agreement.
14. Counterparts. This Agreement may be executed in several counterparts, each of which so executed shall be deemed to be an original, but such counterparts shall together constitute and be one and the same instrument.
15. Severability. If any part, clause, or condition of this Agreement is held to be partially or wholly invalid, unenforceable, or inoperative for any reason whatsoever, such shall not affect any other provision hereof, which shall continue to be effective as though such invalid, inoperative, or unenforceable part, clause or condition had not been made.
16. Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.
17. Governing Law and Venue. All questions concerning this Agreement, its construction, and the rights and liabilities of the parties hereto shall be interpreted and enforced in accordance with the laws of the State of Indiana. For purposes of this Agreement, the sole and proper venue shall be the City of Indianapolis, State of Indiana.
18. Notices. For purposes hereof, delivery of written notice shall be complete upon receipt of electronic facsimile, provided that any facsimile notice shall only be deemed received if (a) the transmission thereof is confirmed, and (b) facsimile notice is followed by written notice, made either by (i) personal delivery thereof, or (ii) via regular mail, postage prepaid, within three (3) business days following the facsimile notice. Notices shall be addressed to the parties as follows:
Crossroads Airservice, LLC
3055 English Ave
Indianapolis, IN 46201
Phone: 888-4-AIR-VAC
Merchant Location(s):
Notice shall be deemed given on the date it is sent via facsimile or email that was provided on the Air Machine Placement Form. Any party may change the address to which to send notices by notifying the other party of such changes in writing in accordance with this paragraph.