VERIFONE TAXI SOLUTIONS AGREEMENT
This Taxi Solutions Agreement (“Agreement”) is made and entered into as of ___
__________ 2014 (the “Effective Date”) by and between the following parties:
Customer:
VeriFone:
VeriFone (U.K.) Limited
Symphony House 7 Cowley
Business Park, High Street,
Cowley, Uxbridge UB8 2AD
Attention: Legal Department
VeriFone shall provide the taxi solutions (“Solutions”) set forth in the schedules attached
hereto and incorporated herein by this reference (“Schedules”) to the taxis and other for–hire vehicles
owned, managed and/or operated by or on behalf of Customer (each, a “Vehicle” and, collectively,
the “Vehicles”), which provision of Solutions shall be governed by this Agreement, including,
without limitation, the Schedules and the General Terms and Conditions attached hereto and
incorporated herein by this reference (“Terms and Conditions”).
This Agreement shall remain in effect for an initial term of three (3) years from the Effective
Date (“Initial Term”). Thereafter, this Agreement shall automatically renew for successive two- (2-)
year periods (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”) unless
either party gives the other party written notice of its intent not to renew at least sixty (60) days prior
to the expiration of the Initial Term or any Renewal Term. Notwithstanding the foregoing, this
Agreement may be terminated prior to its expiration as provided herein.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed by an
authorized representative as of the Effective Date.
CUSTOMER:
By:
SIGNED BY SECURE RETAIL LTD ON
BEHALF OF VERIFONE:
By:
Name:
Title:
VeriFone Initials _____
Name:
Title:
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Customer Initials _____
GENERAL TERMS AND CONDITIONS
SECTION 1. ENTIRE AGREEMENT
installing, repairing, maintaining, and removing VeriFone Equipment at
the reasonable request of VeriFone and at no cost to VeriFone. If
Customer intends to sell or otherwise transfer ownership or right of use
of any Vehicle to any other party, prior to consummating any such sale
or transfer, Customer shall notify VeriFone of such pending sale or
transfer, remove the applicable VeriFone Equipment in and/or on such
Vehicle and immediately return such removed VeriFone Equipment to
VeriFone. If such removed VeriFone Equipment is damaged when
received by VeriFone, or if Customer fails to notify VeriFone as
required by the previous sentence and VeriFone is unable to obtain the
VeriFone Equipment contained in such Vehicle or such VeriFone
Equipment is damaged when VeriFone does obtain such VeriFone
Equipment, then, in either case, Customer shall pay VeriFone, upon
demand, VeriFone’s then-current replacement costs for such VeriFone
Equipment.
This Agreement, consisting of the cover page, these Terms and
Conditions and the Schedules is the final, complete and exclusive
agreement between the parties relating to the subject matter hereof and
supersedes all prior or contemporaneous proposals, understandings,
representations, warranties, promises and other communications,
whether oral or written, relating to such subject matter hereof. Any
term or condition in any other document furnished by Customer at any
time which is in any way inconsistent with or in addition to the terms
and conditions set forth in this Agreement is hereby expressly rejected
and VeriFone’s acceptance of any offer of Customer is expressly made
in reliance on Customer’s assent to all of the terms and conditions
hereof.
SECTION 2. PAYMENT
C. EARLY TERMINATION FEE. If this Agreement is terminated
prior to the expiration of the Term, or VeriFone Equipment otherwise
must be removed from any Vehicle prior to the expiration of the Term,
Customer shall pay to VeriFone, and VeriFone shall be entitled to
receive, upon demand, an early termination fee calculated as follows:
(i) termination or removal during the first year of the Term, £250 per
Vehicle from which VeriFone Equipment is removed; (ii) termination
or removal during the second year of the Term, £100 per Vehicle from
which VeriFone Equipment is removed; and (iii) termination or
removal during the third year of the Term, £50 per Vehicle from which
VeriFone Equipment is removed. Notwithstanding the foregoing,
Customer will not be charged a fee to remove any VeriFone Equipment
if such VeriFone Equipment is being removed from a Vehicle for the
purpose of placing it in a replacement Vehicle.
Customer and VeriFone shall pay the amounts due another as set forth
herein. The fees payable by Customer to VeriFone hereunder do not
include any value added, excise, sales, use or other taxes and therefore
are subject to increase in the amount of any such taxes (excluding any
tax on VeriFone’s net income) that VeriFone may be required to collect
or pay as a result thereof. All amounts invoiced to Customer shall be
debited from Customer’s designated bank account by electronic funds
transfer within fifteen (15) days of the applicable invoice. Any amount
which is not paid by Customer when such debit is attempted shall bear
a late fee at the rate of eighteen percent (18%) per annum or the
maximum rate permitted by applicable law, whichever is less, until
such amount is successfully collected. If Customer fails to pay any
amount when due, or if for any other reason VeriFone is not satisfied
with the creditworthiness of Customer, then, in addition to (and without
prejudice of) any other rights and remedies available to VeriFone at
law, in equity, under contract (including without limitation, this
Agreement), or otherwise, VeriFone shall be entitled to withhold the
provision of any Solutions until Customer reestablishes its
creditworthiness to VeriFone’s reasonable satisfaction. VeriFone shall
have the right, upon two (2) business days’ notice, to inspect and make
copies of Customer’s transaction records and all other documents and
materials in Customer’s possession or control with respect to the
subject matter hereof to confirm Customer’s compliance with the terms
and conditions of this Agreement.
C. DAMAGE. Customer shall notify VeriFone within twenty-four
(24) hours of becoming aware of any VeriFone Equipment that is
damaged or is not functioning properly. If Customer, or any driver or
customer of Customer, damages any VeriFone Equipment beyond
economical repair, Customer shall pay VeriFone, upon demand,
VeriFone’s then-current replacement costs for such VeriFone
Equipment.
SECTION 4. CONFIDENTIAL INFORMATION.
As used herein, “Confidential Information” shall mean any and all
information received by a party hereto from the other party hereto
(whether received directly or indirectly), on or after the Effective Date,
in connection with this Agreement (including without limitation, any
idea, trade secret, finding, research, data, specification, process,
technique, algorithm, architecture, know-how, invention, design,
manufacturing, plan, drawing, sketch, product schematic, document,
manual, report, study, photograph, sample, program, source code,
object code, prototype, customer list, price list, pricing methods,
product description, business plan, business concept, marketing plan,
financial information, work in process, and the terms of this
Agreement), whether such information is in oral, written, graphic, or
electronic form, and any other information which the receiving party
knows or reasonably should know is confidential, proprietary, or trade
secret information of the disclosing party, or the nature of which is such
that it would generally be considered confidential in the industry in
which the disclosing party does business.
A party receiving
Confidential Information pursuant to this Agreement shall: (i) disclose
such Confidential Information to only those directors, officers and
employees of such party (collectively “Representatives”) whose duties
justify their need to know such information and who have been clearly
informed of their obligation to maintain the confidential, proprietary,
and/or trade secret status of such Confidential Information; and (ii) use
such Confidential Information only for the purposes set forth in this
Agreement and not for any purpose detrimental to the disclosing party.
In any event, a receiving party and its Representatives shall treat the
Confidential Information they receive hereunder as strictly confidential
and shall use the same care to prevent disclosure of such information as
each uses with respect to its own confidential and/or, proprietary
information, which shall not be less than the care a reasonable person
would use under similar circumstances. A receiving party shall not
copy any Confidential Information of the disclosing party without the
express prior written consent of the disclosing party, and all
Confidential Information of the disclosing party (and copies thereof)
shall be returned promptly to the disclosing party upon request. A
receiving party shall ensure that its Representatives comply with the
provisions of this Section and shall be liable for any breach of this
SECTION 3. VERIFONE EQUIPMENT
A. OWNERSHIP. Customer acknowledges and agrees that any
VeriFone equipment comprising or used to provide the Solutions
(“VeriFone Equipment”) is and shall remain the sole property of
VeriFone and contains proprietary electronics, software and technical
information of VeriFone or its licensor(s) (collectively, “Proprietary
Materials”).
Customer further acknowledges and agrees that
ownership of all patents, copyrights, mask work rights, trademarks,
trade names and other intellectual property rights relating to or residing
in the VeriFone Equipment and the Proprietary Materials is and shall
remain with VeriFone. Customer shall not reverse engineer, decompile,
disassemble, translate, copy, modify, alter, or otherwise change any
VeriFone Equipment, or part thereof, without the prior express written
consent of VeriFone, and Customer shall promptly notify VeriFone of
any actual or threatened misappropriation or infringement of
VeriFone’s proprietary rights that comes to Customer’s attention.
Furthermore, the VeriFone Equipment shall at all times remain the
property of VeriFone.
Upon expiration or termination of this
Agreement for any reason, Customer shall, within ten (10) days
following such termination or expiration, make available to VeriFone
any and all of its Vehicles in order for the VeriFone Equipment in or on
such Vehicles to be removed by VeriFone. Customer will provide
VeriFone with the Vehicle identifier and any other reasonable
information requested by VeriFone relating to any and all Vehicles in
or on which VeriFone Equipment is installed pursuant to this
Agreement.
B. ACCESS. Customer shall allow VeriFone access to any Vehicle
during business hours for installation, repair, maintenance, and removal
of VeriFone Equipment, including, without limitation, to change out or
repair any content contained on any VeriFone Equipment. Customer
shall produce and make available any Vehicle promptly upon request
by VeriFone for any such purpose, but in any event, during a period of
time not to exceed two (2) business days following such request.
Customer shall cooperate and provide assistance to VeriFone in
VeriFone Initials _____
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Customer Initials _____
Section resulting from the act or omission of any of its Representatives.
Notwithstanding the foregoing, information disclosed to a receiving
party shall not be deemed to be Confidential Information if: (a) the
receiving party establishes that, at the time of its receipt of the
information, the information was already known to the receiving party
without obligation to keep it confidential, as evidenced by written
documentation in the receiving party’s possession; (b) the receiving
party establishes that the information was received by it in good faith
from a third party lawfully in possession of such information with no
obligation upon such third party to keep such information confidential;
or (c) the receiving party establishes that the information was publicly
known at the time of receipt by the receiving party or that the
information has become publicly known other than by a breach of this
Agreement or other action by the receiving party.
SECTION 6. DEFAULT AND TERMINATION
A. TERMINATION FOR BREACH. If a party fails to perform any
of its material obligations hereunder and such failure continues for a
period of thirty (30) days after receipt of written notice from the nonbreaching party, the non-breaching party shall have the right to
terminate this Agreement immediately by providing written notice to
the non-breaching party.
B. TERMINATION FOR INSOLVENCY. A party may immediately
terminate this Agreement by providing written notice to the other party
in the event that such other party files or has filed against it or consents
to the filing of any petition under any bankruptcy or insolvency law of
any jurisdiction, makes an assignment for the benefit of its creditors, or
consents to the appointment of a custodian, receiver, or similar official
for any substantial part of its property.
SECTION 5. WARRANTY DISCLAIMERS; LIMITATION OF
LIABILITY
A. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY
SET FORTH IN THE SCHEDULES HERETO, THE VERIFONE
EQUIPMENT IS BEING PROVIDED TO CUSTOMER ON AN “AS
IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF
THIRD PARTY RIGHTS.
C. TERMINATION BY VERIFONE. In the event that VeriFone
determines that the Solutions provided hereunder are no longer viable,
VeriFone may, in its sole discretion, terminate this Agreement by
providing ninety (90) days’ written notice thereof to Customer.
SECTION 7. INDEMNIFICATION
Customer shall be liable for and indemnify and hold harmless VeriFone
(including without limitation, VeriFone’s officers, directors,
shareholders, Affiliates (as defined below), employees, agents,
representatives, and subcontractors) from any and all claims, lawsuits,
damages, actions, and judgments that may arise or be asserted in
connection with: (i) any accident or incident involving any of
Customer’s Vehicles regardless of fault (except if solely as a result of
defective VeriFone Equipment); and (ii) third-party claims resulting
from Customer’s breach of this Agreement. For purposes of this
Agreement, “Affiliates” means any entity, existing now or in the future,
owning or owned by, either directly or indirectly, or controlling,
controlled by or under common control with either party, and their
directors, officers, and employees
B. LIMITATION
OF
LIABILITY.
NOTWITHSTANDING
ANYTHING SET FORTH HEREIN TO THE CONTRARY: (i)
VERIFONE’S AGGREGATE LIABILITY IN CONNECTION WITH
THIS AGREEMENT, THE SOLUTIONS, AND ANY VERIFONE
EQUIPMENT, REGARDLESS OF THE FORM OF ACTION GIVING
RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT,
OR OTHERWISE), SHALL NOT EXCEED THE AMOUNTS PAID
BY CUSTOMER UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST
OCCURRENCE OF THE INCIDENT UNDERLYING VERIFONE’S
LIABILITY; (ii) VERIFONE SHALL NOT BE LIABLE FOR ANY
EXEMPLARY,
SPECIAL,
INDIRECT,
CONSEQUENTIAL,
PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND
(INCLUDING WITHOUT LIMITATION, LOST PROFITS), EVEN IF
VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES; AND (iii) VERIFONE SHALL NOT BE LIABLE
FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE
SOLUTIONS OR THE VERIFONE EQUIPMENT, AND
CUSTOMER SHALL DEFEND VERIFONE FROM, AND
INDEMNIFY AND HOLD VERIFONE HARMLESS AGAINST,
ALL SUCH CLAIMS. THE LIMITATIONS ON VERIFONE’S
LIABILITY SET FORTH IN CLAUSES (i) AND (iii) OF THIS
SECTION 5.B SHALL NOT APPLY TO LIABILITY FOR DEATH,
PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO
TANGIBLE
PROPERTY
CAUSED
BY
VERIFONE’S
NEGLIGENCE OR INTENTIONAL MISCONDUCT.
THE
FOREGOING STATES THE ENTIRE LIABILITY OF VERIFONE
WITH REGARD TO THIS AGREEMENT, THE SOLUTIONS AND
THE VERIFONE EQUIPMENT.
THE LIMITATIONS OF
LIABILITY CONTAINED IN THIS AGREEMENT (INCLUDING
WITHOUT LIMITATION, IN SECTION 5.C BELOW) ARE A
FUNDAMENTAL PART OF THE BASIS OF VERIFONE’S
BARGAIN HEREUNDER AND VERIFONE WOULD NOT ENTER
INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
SECTION 8. REPRESENTATIONS & WARRANTIES
Customer represents and warrants that: (i) it is authorized to enter into
this Agreement; (ii) it does not currently have an existing agreement in
force and effect with any other party (a) pursuant to which Customer
receives any solution similar to the Solution(s) contemplated by this
Agreement, or (b) that would otherwise conflict with any term or
condition of this Agreement, or (c) that would prevent Customer from
entering into this Agreement or performing (either in whole or in part)
hereunder; and (iii) throughout the Term, Customer shall comply with
all applicable laws, rules, regulations, codes, ordinances, and orders of
governmental authorities (whether, local, state, or federal) now in effect
or hereafter promulgated.
SECTION 9. NON-COMPETE
Throughout the Term and for a period of one (1) year thereafter,
Customer shall not, directly or indirectly, engage in competition with
VeriFone or any VeriFone Affiliate in the business of providing
electronic payment systems to any taxi or similar vehicle, including
without limitation, the Vehicles.
SECTION 10. GENERAL
C. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE
INSTALLATION OF CERTAIN VERIFONE EQUIPMENT MAY
NECESSITATE DRILLING INTO THE EXTERIOR OR INTERIOR
OF CUSTOMER’S VEHICLES AND THE FOLLOWING
SENTENCE AND SETS FORTH VERIFONE’S SOLE OBLIGATION
AND LIABILITY WITH RESPECT TO REMOVAL OF SUCH
VERIFONE EQUIPMENT EITHER DURING THE TERM OF THIS
AGREEMENT OR THEREAFTER. VERIFONE SHALL AT ITS
COST: (i) REMOVE THE APPLICABLE VERIFONE EQUIPMENT;
AND (ii) PLUG OR OTHERWISE COVER, WITH SILICONE OR
OTHER SIMILAR SUBSTANCE, ANY HOLES MADE BY
VERIFONE DURING ITS INSTALLATION AND/OR REMOVAL
OF THE APPLICABLE VERIFONE EQUIPMENT.
VeriFone Initials _____
Any modification, amendment, supplement or other change to this
Agreement must be in writing and signed by duly authorized
representatives of VeriFone and Customer. This Agreement shall for
all purposes be governed by and interpreted in accordance with the laws
of England. Each party hereto irrevocably submits to the exclusive
jurisdiction of the courts of England with respect to any matter arising
hereunder or related hereto. No right or obligation of Customer under
this Agreement shall be assigned, delegated or otherwise transferred,
whether by agreement, operation of law or otherwise, without the prior
express written consent of VeriFone, and any attempt to assign,
delegate or otherwise transfer any of Customer’s rights or obligations
hereunder, without such consent, shall be void. VeriFone may assign,
in whole or in part, any of its rights or obligations under this Agreement
to any of its Affiliates at any time and in its sole discretion. Subject to
the foregoing two sentences, this Agreement shall bind and inure to the
benefit of the permitted successors and assigns of Customer and
VeriFone. Notwithstanding anything to the contrary herein, VeriFone
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may engage subcontractors to perform any of its obligations under this
Agreement. The failure of either party to insist upon strict performance
of any provision of this Agreement, or to exercise any right provided
for herein, shall not be deemed to be a waiver for the future of such
provision or right, and no waiver of any provision or right shall affect
the right of the waiving party to enforce any other provision or right
herein; any and all waivers must be in writing. VeriFone shall not be
responsible for any failure to fulfill its obligations hereunder due to
causes beyond its reasonable control, including without limitation, acts
or omissions of government or military authority, acts of God, acts of
terrorism, shortages of materials, transportation delays, fires, floods,
labor disturbances, riots, and wars. Notwithstanding anything to the
contrary contained in this Agreement, Sections 1, 3, 4, 5, 7, 8, 9 and 10
of these Terms and Conditions shall survive any expiration or
termination of this Agreement. Any notice required hereunder shall be
in writing and shall be delivered in person or by recognized overnight
courier, sent by fax, or mailed by certified U.S. mail, return receipt
requested, all postage or other applicable charges pre-paid, and
addressed as set forth on the cover page or to such other address as shall
be provided from time to time by one party to the other party in
accordance with this paragraph. Any such notice shall be effective
upon receipt or refusal of receipt if delivered in person, by courier, or
via certified U.S. mail, or, if delivered by fax, at the time of successful
transmission, as evidenced by a transmission confirmation page printed
by the fax machine use to send the applicable notice. Customer shall
duly execute, deliver, and cause to be executed and delivered, and all
papers, certificates, instruments, notices and/or other documents that
may be necessary to perfect or evidence the rights and benefits of
VeriFone hereunder and the rights and benefits intended to be granted
to VeriFone by Customer under this Agreement.
END OF SCHEDULE
VeriFone Initials _____
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PAYMENT SYSTEM SCHEDULE
A.
EXCLUSIVITY
Customer hereby grants to VeriFone the exclusive right to: (i) use the interior space of any Vehicles for the purpose of
attaching VeriFone Equipment used for the processing of credit card, debit card or other electronic payment transactions
(“Payment Systems”); and (ii) to provide Payment Systems in any of the Vehicles. Customer agrees not to enter into any
agreement, either directly or indirectly (e.g., through any of its Affiliates), that permits any party (other than VeriFone) to,
directly or indirectly, provide any payment system, method or equipment or otherwise process payments in any of the
Vehicles.
B.
DEPLOYMENT
On receipt of the Payment System Customer will not be liable for Monthly Minimum (as defined below) until the month
following deployment of the Payment System. By way of example, if a Payment System is deployed on the 15 th day of a
month, the Monthly Minimum requirement with respect to such Payment System will not commence until the 1 st day of the
following month.
C.
PAYMENT SYSTEM USAGE
Customer shall utilize the Payment System in the following manner: (i) Customer will utilize its best efforts to ensure that
the Vehicle in which the Payment System is installed accepts payment card and other electronic payment methods supported
by the Payment System as and when requested by the passenger of the Vehicle; (ii) Customer and the driver of each Vehicle
shall not discriminate or encourage their passengers to pay in cash or via any other payment system rather than utilizing the
Payment System (iii) Customer and the driver of each Vehicle shall ensure that the Payment System is visible to the
passenger at all times; and (iv) upon request by VeriFone, Customer shall participate in any testing required to ensure that
the Payment System is visible to the passengers and that the Payment System is functioning properly in the Vehicles.
Customer shall obtain a signature on all magnetic stripe payment card transactions regardless of value. If a charge back is
received on a transaction and Customer is unable to produce the signed receipt as and when requested by VeriFone, any
payment made to Customer related thereto may be reversed by VeriFone. A passenger can dispute the transaction up to five
hundred forty (540) days from the date of the transaction.
Customer shall utilize the Installed Payment Systems (as defined below) to process a number of electronic payment
transactions each calendar month that generate Customer Surcharges (as defined below) with an aggregate value of no less
than the Monthly Minimum (as defined below). In the event that Customer fails to meet the Monthly Minimum for any
given calendar month, the difference between the Monthly Minimum and the aggregate Passenger Surcharges generated
during such month will be direct debited plus VAT from Customer’s designated bank account within 15 days of the
applicable invoice. As used herein, (i) “Installed Payment Systems” means (A) each Payment System that is installed in a
Vehicle and (B) each Payment System that is not installed in a Vehicle but for which the applicable Installation Period has
expired; and (ii) “Monthly Minimum” means the product of (X) the total number of Installed Payment Systems multiplied
by (Y) £15. By way of example, if in a given calendar month (e.g. March) the aggregate Passenger Surcharges assessed and
collected by Customer is, on average, £20 per Vehicle, Customer would not owe any additional monies to VeriFone.
However, if the aggregate Passenger Surcharges assessed and collected by Customer for such month is, on average, £13 per
Vehicle, Customer would be direct debited the deficit of £2 plus VAT per Vehicle.
D.
PASSENGER SURCHARGE
For each and every transaction processed using the Payment System, Customer shall charge each passenger utilizing the
Payment System a surcharge equal to ten percent (10%) of the aggregate value of each such transaction (the “Customer
Surcharge”). Customer acknowledges that this surcharge shall be paid over to and retained by VeriFone. By way of
example, if the base fare for a taxi ride is £10, and the passenger elects to pay through the Payment System, the Payment
System will charge the passenger £11.00, of which £10 will be sent by BACS transfer to Customer and £1.00 will be paid to
and retained by VeriFone for its own account.
E.
PAYMENT TO CUSTOMER
Payment by VeriFone to Customer’s drivers of the fares processed via the Payment System will be as follows:
i. Fares collected on Monday or Tuesday: Processed on the following Wednesday; in Customer’s account on the
following Friday.
ii. Fares collected on Wednesday or Thursday: Processed on the following Friday; in Customer’s account on the
following Tuesday.
iii. Fares collected on Friday, Saturday or Sunday: Processed on the following Monday; in Customer’s account on
the following Wednesday.
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Payment to customer as set forth above is dependent on Customer’s completion and delivery to VeriFone of such forms as
VeriFone may reasonably require to enable electronic funds transfer to Customer’s drivers. Customer acknowledges and
agrees that it is not entitled to payment of all or any portion of the fares and gratuities processed via the Payment Systems .
END OF SCHEDULE
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