**EXHIBIT10.2****Placement Agreement****between****7-Eleven, Inc.****and**Cardtronics, LP**July 20, 2007**
 

 
**Table of Contents**           **Page** 1. Background  1        2. Definitions  1        3. Installation of Financial Services Kiosks in Stores  8        4. Equipment  15        5. Maintenance of Financial Services Kiosks  15        6. Personnel  16        7. Cardtronics Services  17        8. Payments and Consideration  18        9. Intellectual Property and Software  18        10. Confidentiality and Information Security  20        11. Advertising and Marketing  22        12. POS Non-Exclusivity and Non-Solicitation  24        13. Contract and Project Management  25        14. Regulatory Compliance  26        15. Title; Risk of Loss; Taxes  26        16. Insurance and Indemnity  29        17. Reporting and Audit Rights  34        18. Term and Termination  34        19. General  38 
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**Schedules**     Schedule A - Financial Services     Schedule B - Financial Services Kiosks Deployed at Effective Date     Schedule C - Financial Services Kiosk Physical Requirements     Schedule D - Service Levels and Liquidated Damages     Schedule E - Payment and Consideration for Financial Services     Schedule F - Periodic Reports     Schedule G - Quarterly Meetings     Schedule H - Obligations Related to Financial Network Contracts
 

 
**Placement Agreement**     This PLACEMENT AGREEMENT is executed on this 1st day of June, 2007 (the “Effective Date”), byand between 7-Eleven, Inc., a Texas corporation (“7-Eleven”), with principal offices at 1722 RouthStreet, Suite 1000, Dallas, TX 75201, and Cardtronics, LP, a Delaware limited partnership(“Cardtronics”) with principal offices at 3110 Hayes Road, #300, Houston, Texas 77082.7-Eleven, Inc. and Cardtronics, in consideration of the mutual promises set forth herein, and othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, theParties agree as follows:**1.*Background.***1.1 Background and Objectives of the Parties.(a) The Parties have entered into the Purchase Agreement as of the Effective Date. The Parties areentering into this Agreement contemporaneously with the Purchase Agreement.(b) Cardtronics desires to maintain existing and install new Financial Services Kiosks in theStores and offer the Financial Services via the Financial Services Kiosks, and receive the revenuestherefrom, all in accordance with the terms and conditions of this Agreement.(c) 7-Eleven desires to receive compensation for allowing the Financial Services Kiosks to beplaced in the Stores in accordance with the terms and conditions of this Agreement.1.2 Construction. The provisions of this Section 1 are intended to be a generalintroduction to this Agreement and are not intended to be binding on the Parties.**2. *Definitions.***For purposes of this Agreement, the following capitalized terms shall have the meanings ascribedthereto. Other capitalized terms used in this Agreement are defined in the context in which theyare used and shall have the meanings therein indicated.2.1 “Accessway” shall mean the area immediately adjacent to a Financial Services Kiosk reasonablynecessary for a customer to access and use the Financial Services Kiosk.2.2 “Advanced Financial Services Functionality” shall mean advanced financial and other kiosk basedservice offerings excluding ATM Functionality which as of the Effective Date consist of: checkcashing, money transfer, bill payment, deposit taking capabilities, and coupon or other promotionalactivities via receipt printing or usage of screens, financial institution guest memberverification, financial institution balance and history print, financial institution accounttransfers (including share to share, share to loan, loan to loan, loan to share), financialinstitution cash advances (cash only), and financial institution loan payment (cash only and checkwhere available).
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2.3 “Advanced Financial Services Minimums” shall mean that there are installed and Cardtronics isoperating Financial Services Kiosks with Advanced Financial Services Functionality in no fewerthan: 75% of Stores by the fourth anniversary of the Effective Date.2.4 “Affiliate” shall mean, with respect to any person, any other person controlling, controlled byor under common control with such person. The term “Affiliate” shall not include franchisees orarea licensees of 7-Eleven.2.5 “Agreement” shall mean this Placement Agreement, together with all schedules, exhibits andattachments hereto, and any modification or amendment thereto made in accordance with the termshereof.2.6 “ATM Functionality” means traditional automated teller machine functions including cashwithdrawals, balance inquiries, account transfers, credit and/or debit card cash advances,transaction denials, or any other functions agreed to in writing by both Parties.2.7 “Branding Partners” means those parties in contractual arrangements with 7-Eleven as of theEffective Date which permit such party to use a 7-Eleven mark in association with a FinancialServices Kiosk, including but not limited to FSCC, Coop, Citi and TCF. 7-Eleven may agree todesignate additional Branding Partners.2.8 “Can Sign” shall have the meaning set forth in Section 11.1.2.9 “Cardtronics Facilities” shall mean all locations where Financial Services Kiosks are installedother than Stores.2.10 “Cardtronics Marks” shall have the meaning set forth in Section 9.3(a).2.11 “Cardtronics Services” shall mean the Financial Services and other services provided byCardtronics in accordance with this Agreement.2.12 “Cardtronics Software” shall mean and include the software that is both (i) owned by orlicensed to Cardtronics or its Affiliates, or their respective subcontractors or third partyvendors, as of the Effective Date, or subsequently developed by Cardtronics or its Affiliates (orby third party vendors for Cardtronics or its Affiliates), or their respective subcontractors orthird party vendors, and any new software subsequently purchased or licensed by Cardtronics or itsAffiliates, or their respective subcontractors, from third parties, including (to the extent suchright to the software was given to Cardtronics or its Affiliates or their respective subcontractorsas part of the purchase or license), source code, object code and documentation relating to suchsoftware and any modifications, enhancements, revisions or supplements to such owned, developed,purchased or licensed software from time to time, and (ii) used to provide the Financial Services.As between the Parties and their Affiliates, Cardtronics shall own all right, title and interest inand to the Cardtronics Software.2.13 “Claims” shall have the meaning set forth in Section 16.4.2.14 “Competitor” shall mean any entity that sells grocery and/or prepared food products or otherbasic products and services, including gasoline, emphasizing convenience, in a manner
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substantially similar to 7-Eleven, including but limited to convenience store operations, retailgasoline/convenience facilities operated by either major oil companies or retail companies, eitherforecourt or off premises, and drugstores. By way of example, while not intended to be anexhaustive list, the following are examples of companies classified as Competitors of 7-Eleven; (i)any location selling gasoline that also offers convenience products; (ii) drugstores such asWalgreen’s, CVS, and Rite Aid; and (iii) any convenience store.2.15 “Confidential Information” shall have the meaning set forth in Section 10.1.2.16 “Customer Data” shall mean and include all Transaction or membership data and personallyidentifying or other customer information (such as names, addresses, social security numbers, datesof birth, home or work telephone numbers and employers) obtained as a direct result of a person’sregistration for, purchase, attempted purchase and/or utilization of, the Financial Services on orvia the Financial Services Kiosks*.*As between the parties, any Customer Data obtained as a resultof the Cardtronics Services shall be owned by Cardtronics.2.17 “Disclosing Party” shall have the meaning set forth in Section 10.1.2.18 “Effective Date” is the date defined as such in the first paragraph of this Agreement.2.19 “Exclusive Rights” shall have the meaning set forth in Section 3.1.2.20 “Financial Services” shall mean the ATM Functionality and Advanced Financial ServicesFunctionality services and products offered via the Financial Services Kiosks as set forth onSchedule A, and any other services and products offered via the Financial Services Kiosksin accordance with the terms and conditions of this Agreement.2.21 “Financial Services Change” shall have the meaning set forth in Section 7.2.2.22 “Financial Services Kiosk” shall mean each kiosk (including hardware and software) togetherwith any and all other equipment, fixtures, and signage (if affixed to the Financial Services Kioskor part of the surround) used to provide either ATM Functionality or Advanced Financial ServicesFunctionality.2.23 “Financial Services Kiosk Area” shall mean that space within a Store necessary for placementof the Financial Services Kiosk, which shall be designated in accordance with Section 3.8.2.24 “Financial Services Kiosk Project” shall mean the development, installation, testing,operation and maintenance of Financial Services Kiosks.2.25 “Franchisee Amendment” shall have the meaning set forth in Section 3.2.2.26 “Intellectual Property Rights” shall mean all industrial, intellectual property or otherrights of a person in, to or arising out of (a) United States or foreign patents and allcorresponding rights throughout the world, or applications therefor and all reissues, divisions,continuations, renewals, extensions and continuations-in-part thereof, (b) inventions (whetherpatentable or not in any country), ideas, conceptions (including invention disclosures and
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whether or not reduced to practice), industrial designs, improvements, trade secrets, proprietaryinformation, know-how, technology and technical data, (c) copyrights, mask works, copyrightregistrations, mask work registrations and applications therefor in the United States or anyforeign country, and all other rights corresponding thereto throughout the world, (d) United Statesor foreign registered or common law trademarks, service marks, trade dress, trade names, logos,intent-to-use registrations or notices, and applications to register or use any of the foregoinganywhere in the world, (e) trade secrets and Confidential Information, (f) any other proprietaryrights in technology, including software, all source and object code, algorithms, architecture,structure, display screens, layouts, inventions, development tools and all documentation and mediaconstituting, describing or relating to the above, including, without limitation, manuals,memoranda, records, business information, or trade marks, trade dress or names, anywhere in theworld, and all rights necessary for the worldwide development, manufacture, modification,enhancement, creation of derivatives thereof, sale, licensing, use, reproduction, publishing anddisplay of such technology or other asset and all modifications and enhancements thereto andderivatives thereof and (g) all rights to sue or recover and retain damages, costs and attorneys’fees for present and past infringement of any of the foregoing.2.27 “Minimum Store Commitment” shall have the meaning set forth in Section 3.7.2.28 “Party” shall mean either 7-Eleven or Cardtronics and “Parties” means both 7-Eleven andCardtronics.2.29 “Person” shall mean an individual, corporation, partnership, limited liability company,association, trust, unincorporated organization or other entity.2.30 “Purchase Agreement” shall mean the Asset Purchase Agreement of even date herewith between theParties for the sale by 7-Eleven and Vcom Financial Services, Inc. to Cardtronics of assetsrelating to the Financial Services Kiosk Project and an assumption of certain liabilities relatedto such assets.2.31 “Receiving Party” shall have the meaning set forth in Section 10.1.2.32 “Remodeling” shall mean removal, rearrangement and/or addition of shelving or othermerchandising equipment and facilities, the installation of electrical, data communication, andother service with appurtenant outlets and any other improvements or alterations necessitated byinstallation, preparation or construction of a Financial Services Kiosk Area, in an existing Store.For the avoidance of doubt, build out of a new Store shall not constitute Remodeling.2.33 “Removal” shall mean the removal of a Financial Services Kiosk upon expiration or terminationof this Agreement pursuant to Section 18.7.2.34 “Root Cause Analysis” means the formal process used by Cardtronics to diagnose the underlyingcause of problems at the lowest reasonable level so that corrective action can be taken that shalleliminate repeat failures.2.35 “7-Eleven Marks” shall have the meaning set forth in Section 9.3(b).
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2.36 “Service Level Credits” means the liquidated damages to which 7-Eleven is entitled (includingany applicable multipliers) when Service Level Defaults occur as set forth in Schedule D.2.37 “Service Level Default” means a failure to achieve the Service Level or failure to avoidIncreased Impact specified in Schedule D.2.38 “Service Levels” means the standards for performance, availability, reliability, quality andresponsiveness that Cardtronics will be required to meet in Cardtronics’s performance of theCardtronics Services as set forth in Schedule D.2.39 “Stores” shall mean the 7-Eleven corporate operated stores and 7-Eleven franchisee stores inthe Territory (which Stores are identified on Schedule B hereto), together with alladditional convenience stores or franchises in the Territory acquired or controlled by 7-Elevenafter the Effective Date of this Agreement, whether or not such convenience stores or franchisesare branded as “7-Eleven” stores, but excluding certain stores excluded pursuant to the terms ofSection 3.2, as well as all stores consisting of less than 500 square feet, except that anysuch stores of less than 500 square feet which by mutual written agreement are designated asconstituting Stores shall nevertheless qualify as “Stores”.2.40 “Taxes” shall mean taxes, assessments, fees and other governmental charges imposed on or withrespect to the ownership and operation of the Financial Services Kiosks, including income, profits,gross receipts, net proceeds, ad valorem, value added, turnover, sales, use, property, personalproperty (tangible and intangible), environmental, stamp, leasing, lease, user, excise, duty,franchise, transfer, registration, license, withholding, social security (or similar),unemployment, disability, payroll, employment, excess profits, occupational, severance, estimatedor other charge of any kind whatsoever, including any interest penalty or additions thereto,whether disputed or not**;**provided, however, that in no event shall Taxes include or be deemed toinclude (i) property or ad valorem taxes related to any tangible property or asset not sold andconveyed to Cardtronics in accordance with the Purchase Agreement, or (ii) any income, franchise,margin or other taxes of any kind assessed upon income or revenues of 7-Eleven or its franchisees,including but not limited to income or revenues received by 7-Eleven or its franchisees in respectof the Financial Services Kiosks.2.41 “Term” shall have the meaning set forth in Section 18.1.2.42 “Territory” shall mean the United States of America.2.43 “Transaction” shall mean the execution of a transaction by a customer on a Financial ServicesKiosk, including by way of example, and without limitation, a cash withdrawal, balance inquiry,account transfer, cashing of a check, bill payment or purchase of telecommunications products by aperson at a Store using a Kiosk.2.44 “Transaction Fees” shall have the meaning set forth in Section 8.1.2.45 “Vault Cash” shall mean cash contained in a Financial Services Kiosk.
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2.46 “Vault Cash Loss” means a single occurrence of the loss of Vault Cash in excess of**[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSIONPURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**from a single Financial Services Kiosk. Vault CashLosses include stolen, lost or destroyed Vault Cash and negotiable instruments. Vault Cash Losses,to the extent that they are not directly attributable to 7-Eleven or its franchisees, or its ortheir employees or agents, as provided in Section 15.2, does not include any loss of VaultCash occurring outside the Financial Services Kiosk, such as losses occurring to Vault Cash whilein transit or in storage at a vault or similar location away from a Store. The amount of a VaultCash Loss does not include the face value of stolen, lost or destroyed negotiable instruments orother non-cash items of value, or to the extent that they are not directly attributable to 7-Elevenor its franchisees, or its or their employees or agents, as provided in Section 15.2, anyloss of any nature to the extent such loss results from (a) equipment malfunction; (b) mistakes inFinancial Services Kiosk loading including, without limitation, currency dispensed due to misloadeddenominations, misconfigured cassettes, or misloaded cassettes; (c) currency dispensed due tomistake or fraudulent instruction manually or electronically transmitted to the Financial ServicesKiosk; (d) discrepancies between network reports and Financial Services Kiosk bill counter totals(in the event of such discrepancies, bill counter totals will be deemed conclusive); (e)Cardtronics’ mistakes in verification; (f) access by third persons (i.e. persons other than7-Eleven or its franchisees, or its or their employees or agents), whether authorized orunauthorized, unless such access was made possible by the intentional act or omission of 7-Elevenor its franchisees, or its or their employees or agents, described in Section 15.2); (g)the use of magnetic debit and credit cards; (h) the presence of excess currency (commonly called“side cash”), or items of value not specifically intended to be present at the Financial ServicesKiosk location; (i) burglary; or (j) damage from breakage and vandalism.2.47 “Vault Cash Loss Liability Limit” means the maximum amount of 7-Eleven’s liability for a VaultCash Loss and such amount is **[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THESECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**per Vault CashLoss.2.48 “Viruses” shall mean viruses, contaminants or similar items.**3.*****Installation of Financial Services Kiosks in Stores.***3.1 Financial Services Kiosk Exclusivity.(a) Subject to the other terms and conditions herein, Cardtronics shall have the exclusive right toinstall and operate Financial Services Kiosks offering Advanced Financial Services Functionalityand the exclusive right to install and operate Financial Services Kiosks providing only ATMFunctionality in each Store (which shall be deemed to include the leasehold or property which ispart of the operation of the retail 7-Eleven Store) for a period of ten (10) years. Cardtronicsshall provide 7-Eleven written notice if it intends to temporarily or permanently cease providingAdvanced Financial Services Functionality in whole or in part. Notwithstanding anything to thecontrary in this Section 3.1(a): (i) if at any time Cardtronics is no longer operating anyFinancial Services Kiosks with Advanced Financial Services Functionality, its
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exclusive rights as to Advanced Financial Services Functionality shall terminate and 7-Eleven maythereafter install and operate Financial Services Kiosks offering Advanced Financial ServicesFunctionality (but not ATM Functionality); (ii) if at any time after the fourth anniversary of theEffective Date, Cardtronics is no longer offering a product or service as part of AdvancedFinancial Services Functionality in at least enough Stores to meet the Advanced Financial ServicesMinimums, its exclusive rights as to that product or service shall terminate and 7-Eleven maythereafter install and operate Financial Services Kiosks offering such product or service (but notATM Functionality or other products or services to which Cardtronics maintains exclusivity rights);and (iii) if Cardtronics has not installed Financial Services Kiosks with Advanced FinancialServices Functionality in all Stores after the fourth anniversary of the Effective Date, andCardtonics has failed to meet the Advanced Financial Services Minimums, and Cardtronics has notobtained 7-Eleven’s approval of Cardtronics’ plan to install Financial Services Kiosks withAdvanced Financial Services Functionality in the remaining Stores, its exclusive rights as to suchStores where no Financial Services Kiosks with Advanced Financial Services Functionality have beeninstalled shall terminate. With respect to (ii) or (iii), if Cardtronics wants to retain theapplicable exclusivity, Cardtronics will present a plan prior to the end of the four year periodand obtain 7-Eleven’s approval of such plan. 7-Eleven will not unreasonably withhold, condition,or delay such approval.(b) With respect to any acquisitions or franchise arrangements wherein 7-Eleven acquires Storesafter the Effective Date with existing ATM obligations and/or 7-Eleven has not yet installed orconverted such locations to the 7-Eleven network infrastructure, network and utility facilities,and taken any other necessary actions required of 7-Eleven hereunder in order to enable Cardtronicsto install and operate Financial Services Kiosks in such Stores, Cardtronics’ exclusive right toinstall and operate Financial Services Kiosks in such Stores shall not apply until (i) suchexisting ATM obligations have expired, (ii) 7-Eleven has converted such Store to the 7-Elevennetwork infrastructure or Cardtronics has agreed to arrange for alternative communicationsinfrastructure at its sole expense (such agreement at Cardtronics sole and exclusive discretion);and (iii) Cardtronics has installed and is operating a Financial Services Kiosk in such newlyacquired Store(s). 7-Eleven agrees to provide Cardtronics notice as to all such locations whenthe conditions of both (i) and (ii) have been satisfied. 7-Eleven agrees not to extend orotherwise renew any such existing ATM obligations as described herein. For avoidance of doubt,after Cardtronics has received the notice as contemplated herein that it can install a FinancialServices Kiosk in accordance with this Section, 7-Eleven shall have no obligation to remove anyexisting ATMs in Stores after pre-existing obligations have expired until Cardtronics has installedand is operating a Financial Services Kiosk at such location unless space limitations in the Storerequire the removal of the existing ATM in order to install the Financial Services Kiosk. Ifspace limitations in the Store require the removal of the existing ATM in order to install theFinancial Services Kiosk, Cardtronics shall notify 7-Eleven when it has a Financial Services Kioskready to install, and the parties shall reasonably cooperate to schedule and perform the removal ofthe existing ATM by the ATM vendor and installation of the Financial Services Kiosk by Cardtronicsin a manner that results in minimum ATM downtime and impact to ATM availability for 7-Elevencustomers. All Cardtronics’ rights in this Section 3.1 shall be referred to as the“Exclusive Rights”.(c) In the event that 7-Eleven exercises it right to terminate either this Agreement or any Storelocation in accordance with this Agreement or Schedule D, the Exclusive Rights granted in
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this Section 3.1 shall likewise terminate.3.2 Financial Services Kiosk Installation. Subject to the other terms and conditionsherein, Cardtronics shall install, operate and maintain one or more Financial Services Kiosks withATM Functionality in the Financial Services Kiosk Area in each Store, except that either party mayrequest approval of the other party for the exclusion of any Store from these obligations if theFinancial Services Kiosk has repeatedly been subject to vandalism or burglary (which approval shallnot be unreasonably withheld, conditioned or delayed), and upon such approval, such Stores shall bedeemed excluded from such obligations and from Cardtronics Exclusive Rights and all other rights.For security reasons, Cardtronics shall have the right to bolt Financial Services Kiosks to thefloors of Stores. However, in no event shall Cardtronics be obligated to install any FinancialServices Kiosks in any Stores from and after such time when there shall remain three (3) years orless in the Term, taking into account any renewal of the Term pursuant to Section 18.2; andprovided, further, that Cardtronics’ Exclusive Rights and all other rights and obligations underthis Agreement shall terminate as to that Store, and any new Stores opened thereafter, upon itselection not to install, operate or maintain a Financial Services Kiosk as to such Store pursuantto and as provided in this sentence. Notwithstanding any requirement to the contrary, Cardtronicsmay (but shall not be obligated to) install Financial Services Kiosks with Advanced FinancialServices Functionality in addition to ATM Functionality, in each corporate-operated Store and, ifthe franchisee has executed a Franchisee Amendment as contemplated in Section 3.4, in suchfranchisee-operated Store. Notwithstanding the foregoing, but subject as hereinafter provided,Cardtronics shall not have any right or option to install a Financial Services Kiosk in a Store,and such right or option shall not apply, for so long as 7-Eleven is subject to any conflictingcontractual or other legal restriction, or if such Store has physical limitations, preventing ormaterially limiting the operation of a Financial Services Kiosk in such Store; provided, however,that the foregoing provisions of this sentence shall be inapplicable with respect to any Store inwhich a Financial Services Kiosk is located as of the date of this Agreement. For Stores openedafter the Effective Date, 7-Eleven shall give Cardtronics sixty (60) days notice of the date onwhich a Financial Services Kiosk is to be installed, and Cardtronics shall install and operate aFinancial Services Kiosk in the Financial Services Kiosk Area of the Store within thirty (30) daysif such Store was included in the preceding quarterly forecast, and within sixty (60) days if suchStore was not included in the preceding quarterly forecast (“Install Date”). In order to insurethat the Financial Services Kiosk is operating upon the opening or conversions of a Store, 7-Elevenand Cardtronics will use good faith efforts to mutually develop a rolling forecast on a quarterlybasis, estimating 7-Eleven’s required Financial Services Kiosk needs, as well as the need for theinstallation of Financial Services Kiosk by Cardtronics, based on 7-Eleven’s anticipated number ofnew Stores and Store closures during the Term of this Agreement. The mutual forecast providedherein will represent the parties’ estimate of 7-Eleven’s requirements; provided that, nothingherein shall obligate Cardtronics to supply any such Financial Services Kiosks until Notice asprovided in Section 3.4 is actually provided by 7-Eleven. 7-Eleven makes no warranty as tothe accuracy or completeness of the Forecasts. Cardtronics acknowledges and agrees that theForecasts are solely for informational purposes and that the Forecasts will not obligate 7-Elevenin any manner. If either (a) Cardtronics refuses or fails to timely install or operate a FinancialServices Kiosk in a Store when required to do so in accordance with the terms of this Agreement, or(b) Cardtronics fails to provide the maintenance services set forth in Section 5 herein asto a Financial Services Kiosk in a Store, then (i) subject to and in accordance with Section18.3, 7-Eleven may terminate Cardtronics’
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Exclusive Rights and all other rights and obligations hereunder with respect to such Store in thesame manner and with the same effect as if such date were the expiration date of this Agreement asto such Store, and (ii) Cardtronics shall remove any Financial Services Kiosk from such Store inaccordance with Section 18.7 herein.3.3 Advanced Financial Services Functionality. In addition to other elections which may bemade by Cardtronics in its good faith business judgment pursuant to this Agreement as providedabove, Cardtronics may in its good faith business judgment elect to replace the existing FinancialServices Kiosks providing Advanced Financial Services Functionality in some or all of the Stores inwhich same are located, with Financial Services Kiosks not offering Advanced Financial ServicesFunctionality, or to otherwise discontinue the offering of Advanced Financial ServicesFunctionality, and to decline to install new Financial Services Kiosks providing Advanced FinancialServices Functionality in future installations, and to instead install Financial Services Kiosksnot providing Advanced Financial Services Functionality.3.4 Lessor Consents and Franchisee Participation. Cardtronics expressly acknowledges thatcertain of the Stores may be leased by 7-Eleven or its Affiliates or operated by 7-Eleven’sfranchisees, or both. Any such Store existing on the Effective Date and not listed on ScheduleB shall also be subject to the Exclusive Rights and terms and conditions set forth inSection 3.1 unless (i) in the case of a leased Store, the lessor has not consented, ifnecessary under the terms of the lease, to the installation and operation of a Financial ServicesKiosk, and (ii) in the case of a franchised Store, the franchisee has not executed a franchiseeamendment providing for the installation and operation of a Financial Services Kiosk in such Store,in a form reasonably acceptable to 7-Eleven (a “Franchisee Amendment”). 7-Eleven shall request,and shall use good faith efforts to obtain, such consents and Franchisee Amendments, but 7-Eleven’sfailure to obtain any such consents or Franchisee Amendments despite such request and efforts shallnot constitute a default under this Agreement. Nothing in this Section 3.4 shall require7-Eleven to expend any out of pocket amounts, or incur any additional obligation or liability, forthe purpose of securing a lessor consent or a Franchisee Amendment. Other than the lessor orfranchisee consents, Cardtronics shall be responsible for obtaining any consents, licenses, permitsor approvals necessary to install and operate Financial Services Kiosks and provide FinancialServices, but Cardtronics shall have no obligation to obtain any of the consents, licenses, permitsand approvals necessary to build, alter, occupy, use or operate the Stores.3.5 Transition of ATM Services to Cardtronics. The Parties shall adhere to any procedures,schedules and requirements as may be mutually agreed in a transition plan executed by both partiesdescribing the transition of the Financial Services to Cardtronics (the “Transition Plan”).3.6 Installation of Financial Services Kiosks. Cardtronics shall minimize disturbances toStore operations during Cardtronics’ installation of any Financial Services Kiosks. Suchinstallation shall not take place during any period of peak operation of the Store as reasonablydesignated by 7-Eleven by prior notice to Cardtronics. Cardtronics and 7-Eleven shall mutuallyagree on the schedule for installation, removal, or movement of any Financial Service Kiosk.Cardtronics and 7-Eleven shall work together to allow 7-Eleven adequate time to addresscommunications, POP, advertising, etc. with respect to the applicable Functionality that exists onthe Financial Service Kiosk in each location.
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3.7 Store Commitment. 7-Eleven agrees that Cardtronics’ Exclusive Rights in this Agreementshall apply to at least **[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**Stores during the Term(“Minimum Store Commitment”). In the event that due to any Store closing, or any sale of a Storeto a purchaser who or which does not assume 7-Eleven’s obligations under this Agreement asapplicable to such Store, there are not sufficient Stores available to Cardtronics to meet theMinimum Store Commitment in accordance with this Agreement during the period after the EffectiveDate and prior to termination of Cardtronics’ rights as to such Store under this Agreement,7-Eleven shall pay Cardtronics the amount of **[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELYWITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**permonth for each Store below the Minimum Store Commitment which was not available to Cardtronics, foreach full month from and after such reduction below the Minimum Store Commitment until the date onwhich sufficient Stores are available to meet the Minimum Store Commitment again, as liquidateddamages for 7-Eleven’s failure to meet the Minimum Store Commitment. Further, the SouthwestConvenience Store locations shall at all times count towards the Minimum Store Commitment and inthe event that the Store count falls below **[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITHTHE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**after the**[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSIONPURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**year of the Term, all locations once Cardtronicshas declined to install a Financial Services Kiosk shall also count towards the Minimum StoreCommitment. The Minimum Store commitment shall be reduced by one for each Store at whichCardtronic’s Exclusive Rights are terminated pursuant to this Agreement. Further, the MinimumStore Commitment shall be temporarily reduced for each Store subject to payments of liquidateddamages under Section 3.9(b).3.8 Financial Services Kiosk Area. 7-Eleven shall designate the Financial Services KioskArea in each Store in its sole discretion, except that such location must be in the merchandisingarea and comply with the specifications as set forth on Schedule C. 7-Eleven hereby grantsCardtronics a limited license to use the Financial Services Kiosk Area solely to install andoperate the Financial Services Kiosks, and exercise and perform its other rights and obligationsunder this Agreement, during (and as and solely to the extent contemplated by this Agreement,after) the Term and for no other purpose.3.9 Remodeling Etc. (a) If Remodeling is required (due to the type of kiosk, the type of required surround or any otherCardtronics requirements) for the installation of any Financial Services Kiosk in any FinancialServices Kiosk Area, Cardtronics shall so notify 7-Eleven, and 7-Eleven shall, in coordination withCardtronics, (a) prepare all necessary building and construction plans and specifications, (b)obtain all necessary permits, licenses and/or approvals and (c) complete the Remodeling.Cardtronics shall promptly reimburse 7-Eleven for all necessary out of pocket costs incurred by7-Eleven in connection with Remodeling. 7-Eleven shall reasonably cooperate with
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Cardtronics in regards to any necessary removals, moves or reinstallations of Financial ServicesKiosks.(b) If 7-Eleven or any of its franchisees remodels, reconstructs, improves, alters or relocates(“Updates”) any Financial Services Kiosk Area, or any Store location that will impact any FinancialServices Kiosk Area, 7-Eleven shall so notify Cardtronics, and Cardtronics shall, in coordinationwith 7-Eleven, coordinate any necessary removals, moves, and/or reinstallations. In the event that7-Eleven chooses to Update a substantial number of stores (more than **[CONFIDENTIAL MATERIAL OMITTEDAND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITYTREATMENT REQUEST]**of the Stores) at the same time, and such remodeling is not due tocircumstances beyond 7-Eleven’s reasonable control, and such Updates require the Stores to beclosed for **[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGECOMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**or more consecutive days, then7-Eleven, as Cardtronics sole and exclusive remedy, shall pay Cardtronics liquidated damages in thesum of $**[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGECOMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**per Store per day.(c) In all other events, the party either requesting or causing the necessity for a removal, move,and/or reinstallation shall bear the costs, including costs of removal, shipment and storage.3.10 Store Closings. In the event that (a) 7-Eleven, in its sole discretion, permanentlyceases retail operation of a Store, (b) an applicable law or regulation prevents, prohibits ormaterially restricts a Store from operating a Financial Services Kiosk or (c) a FranchiseeAmendment terminates, then in each case 7-Eleven’s and Cardtronics’ obligations under thisAgreement with regard to such Store shall terminate as of the date of such cessation of operation,date of effectiveness of the law or termination, as applicable. 7-Eleven shall provide Cardtronicswith no fewer than ninety (90) days’ advance written notice of such cessation and shall notifyCardtronics in writing of any such termination within ten (10) days of its receipt of writtennotice thereof. Removal of the Financial Services Kiosk from the affected Store shall be madepursuant to Section 18.7. Cardtronics shall provide 7-Eleven at least three (3) dayswritten notice of the date it desires to remove the Financial Services Kiosk, and Cardtronics shallnot commence removal without 7-Eleven’s prior written consent, which consent shall not beunreasonably withheld, conditioned or delayed. Any such Store closings shall not reduce the MinimumStore Commitment as set forth in Section 3.7.3.11 Security and Access to Stores. Cardtronics shall at all times substantially complywith 7-Eleven’s and 7-Eleven’s franchisees’ security and access policies as such may be in effectand are identified or provided in writing to Cardtronics from time to time at each Store, within areasonable period of time (but in no event less than 30 days) after Cardtronics receives suchwritten notice of such policies or change thereto. Cardtronics shall abide by all 7-Eleven andfranchisee rules and regulations as such may be in effect from time to time and are identified orprovided in writing to Cardtronics while on Store premises, including, but not limited to (a)safety, health and hazardous material management rules, (b) rules prohibiting misconduct on Storepremises such as use of physical aggression against persons or property, harassment,
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security and theft and (c) any other standards and procedures adhered to by employees of 7-Elevenand its Affiliates and their respective subcontractors. Each Party shall take all reasonableprecautions to ensure safe working procedures and conditions during and in connection with suchParty’s operations while on Store premises. Any Cardtronics employees or subcontractors who accessStores or other facilities of 7-Eleven or its vendors may be required to sign a separate accessagreement prior to admittance to such facilities.3.12 Content Requirements and Restrictions. Cardtronics shall at all time comply with theprovisions set forth in Section 7.4, and any additional requirements that may be set forthin Schedule E.3.13 Network Agreements. Cardtronics has assumed certain interchange, financial networkand similar agreements relating to the operation of the Financial Services Kiosks which wereentered into by 7-Eleven prior to the date of this Agreement. All of the foregoing agreements arehereinafter collectively called “Network Agreements”. 7-Eleven agrees that it and its franchiseeswill perform any obligations identified in Schedule H which pertain solely to the operationor ownership of the Stores in such Network Agreements.3.14 Networks. Cardtronics shall throughout the Term maintain participation in a broadenough range of national and/or regional EFT networks such that cards are accepted by the FinancialServices Kiosk at a rate consistent with 7-Eleven’s historical experience.3.15 Quarterly Meetings. The Parties shall engage in quarterly meetings as set forth inSchedule G.**4. *Equipment.***4.1 Financial Services Kiosk Specifications. Cardtronics reserves the right to select themake and model of Financial Services Kiosks for installation or to hereafter substitute other makesand models Financial Service Kiosks installed in any Financial Services Kiosk Area, so long as anysuch substitute Financial Services Kiosk (a) has permitted functionality, (b) meets thespecifications set forth in Schedule C, as may be amended from time to time to conform tolegal requirements, or by mutual agreement, (c) does not place any additional burden on the Store’sstructural or utility systems, including without limitation electrical and telephone systems, and(d) has a similar appearance in color and design that is comparable to the existing 7-Eleven ATMbase. 7-Eleven shall provide or cause to be provided the Financial Services Kiosk Areas in theStores in accordance with this Agreement. Cardtronics shall inform 7-Eleven of the vendor andmodel number (or other means of equipment identification) and space requirements for normaloperation, maintenance and service of the Financial Services Kiosk, its immediate surrounds orfixtures, its signage required to be provided pursuant hereto and related equipment selected byCardtronics prior to the commencement of installation of any Financial Services Kiosk.Notwithstanding the foregoing, or any other provision of this Agreement to the contrary, however,the Financial Services Kiosks and equipment purchased from 7-Eleven shall be deemed to comply withthis Agreement in all respects, and for all purposes under this Agreement as of the Effective Date.
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4.2 Periodic Replacement. Cardtronics shall replace Financial Services Kiosks as mutuallydetermined necessary in the quarterly meeting with 7-Eleven described in Schedule G.4.3 Standards; Warranties. Cardtronics represents and warrants that it shall perform allits obligations hereunder with promptness and diligence, and in a good and workmanlike manner andin accordance with industry standards for well managed financial services operations.4.4 Removal of Money Order Functionality. 7-Eleven shall have caused to be executed a TaskOrder with NCR to remove all money order printers and other money order functionality equipment orsoftware, and take such other steps as are needed to terminate money order functionality, from theFinancial Services Kiosks offering such functionality as soon as reasonably possible, but in anyevent within one (1) year after the Effective Date. The costs associated with respect to the TaskOrder shall be the responsibility of 7-Eleven. 7-Eleven shall have no further responsibility withrespect to the money order printers or the Financial Services Kiosks associated with the removal ofmoney order functionality, and NCR shall be responsible for performing the Task Order. Any DownTime (as defined in Schedule D) of a Financial Services Kiosk caused by NCR in connection with theTask Order shall be excluded in calculating the “Availability” of said Financial Services Kiosk.**5. *Maintenance of Financial Services Kiosks.***5.1 Cardtronics to Provide Maintenance. Cardtronics shall provide, or cause to beprovided, at its own expense, maintenance of each Financial Services Kiosk. Cardtronics shall notunduly hinder the operations of the Stores while performing its maintenance duties. Cardtronicsshall supply 7-Eleven with the name, address and telephone number of its subcontractors responsiblefor maintenance for purposes of identification. Cardtronics or its designated service agents orsubcontractors shall have the right to enter a Store during such Store’s normal business hours toperform the maintenance required hereby.5.2 Definition of Maintenance.(a) Cardtronics. For purposes of this Agreement, the terms “maintain” and “maintenance” ofFinancial Services Kiosks shall include cleaning, repair (whether or not defects are covered bymanufacturer’s warranties), parts installation, parts replacement and replenishment of the supplyof Vault Cash (as that term is defined in Section 15.2), as well as all labor in connectionwith each of the foregoing. Cardtronics shall maintain adequate amounts of Vault Cash in eachFinancial Services Kiosk at all times. “Adequate amounts of Vault Cash” means that amount of cashrequired for each Financial Services Kiosk to satisfy customer withdrawals made betweenreplenishments of cash by Cardtronics in conformance with the service levels set forth inSchedule D. Cardtronics shall be responsible for required data communications lines fromthe Financial Services Kiosk to the Store router or switch, and all telephone hook-up, data lineand/or communications network charges.(b) 7-Eleven. 7-Eleven shall maintain the Store space surrounding the Financial ServicesKiosk Area in a reasonably neat and orderly condition and free of obstructions. 7-Eleven, at itssole expense, shall cause to be installed, maintained, and available for Cardtronics’ use from andafter the Install Date, on a plug in basis, required data communication lines installed to theStore
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router or switch, and electric lines necessary or appropriate for or in connection with theoperation of the Financial Services Kiosks. The cost of all utilities shall be borne by 7-Eleven.5.3 Failure to Maintain Financial Services Kiosks. Cardtronics agrees to be bound by theservice level provisions set forth in Schedule D.**6.*****Personnel.***6.1 Qualifications of Cardtronics Employees and Subcontractors. Cardtronics agrees thatthe employees and subcontractors it assigns to perform any services relating to the FinancialServices Kiosks in Stores (which may at Cardtronics’ option be Affiliates of Cardtronics) shall bepersonnel reasonably qualified for the services they are to perform.6.2 Replacement of Cardtronics Employees and Subcontractor Employees. 7-Eleven shall givewritten notice to Cardtronics if 7-Eleven (i) reasonably determines that any of Cardtronics’employee’s or subcontractor’s employee’s performance is materially deficient, or (ii) discoversthat there have been material misrepresentations by or concerning the employee or subcontractoremployee. Cardtronics shall then promptly investigate the situation and develop a plan to resolveany issues. If the issues are not resolved within a reasonable period (taking into account theharm or potential harm to 7-Eleven), then Cardtronics will replace the employee or subcontractoremployee with a person satisfying the criteria set forth in Section 6.1. Nothing in thisprovision shall be deemed to give 7-Eleven the right to require Cardtronics to terminate theemployment of any of Cardtronics’ employees or subcontractor’s employees; rather, it is intended togive 7-Eleven only the right to require that Cardtronics or such subcontractor discontinue using anemployee in the performance of the services relating to the Financial Services Kiosk Project.**7.*****Cardtronics Services.***7.1 Provision of Cardtronics Financial Services. Cardtronics shall provide the FinancialServices at the Stores, subject to the terms and conditions contained in this Agreement (includingwithout limitation the terms and conditions of Section 3.1 of this Agreement) and anyapplicable Schedules. Cardtronics shall provide and/or obtain all facilities, personnel and otherresources as are necessary to provide the Cardtronics Services, the costs of which shall be borneby Cardtronics, except as otherwise expressly provided in this Agreement.
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7.2 Financial Services Changes. After the Effective Date, the parties will meet quarterlyto discuss potential new product and/or service opportunities as Advanced Financial ServicesFunctionality. Cardtronics shall have no right to add new products or services to the FinancialServices Kiosks without 7-Eleven’s prior written consent, which may be withheld in 7-Eleven’s solediscretion. However, Cardtronics shall have the right to (i) discontinue or materially reduce anyFinancial Services on the Financial Services Kiosks deployed in the Stores, or (ii) materiallymodify or enhance any Financial Services on the Financial Services Kiosks deployed in the Stores(collectively “Financial Services Changes”), all in its good faith business judgment, and in eachcase without the prior written consent of 7-Eleven. 7-Eleven shall have no obligation to share inany development or implementation costs relating to any Financial Services Change proposed byCardtronics. Cardtronics may not implement any changes involving any Alternative Revenue Streams(or “ARS”) as described in Schedule E without 7-Eleven’s prior written approval whichapproval shall be in 7-Eleven’s sole discretion, except as may be otherwise provided inSchedule E with respect to adding BINs on existing agreements.7.3 Use of Subcontractors. Subject to Section 6 and all other terms of thisAgreement, Cardtronics may delegate or subcontract any of its obligations under this Agreementwithout the prior consent of 7-Eleven; provided however, that Cardtronics may not delegate orsubcontract any of its obligations hereunder to a Competitor of 7-Eleven without 7-Eleven’s priorwritten consent. With respect to any obligations of Cardtronics under this Agreement performed bysubcontractors, Cardtronics will remain responsible for such obligations to the same extentCardtronics would be responsible for Cardtronics’ employees. Cardtronics will not disclose to anysubcontractor any 7-Eleven Confidential Information unless and until such subcontractor has agreedin writing to protect the confidentiality of such information in a manner that is equivalent tothat required of Cardtronics hereunder.7.4 Cardtronics Service Warranty. Cardtronics represents and warrants to 7-Eleven thatCardtronics’ respective Marks, Financial Services Kiosk screens and all marketing materials shallnot (a) contain or permit to appear any defamatory or libelous material or material that disclosesprivate or personal matters concerning any person, without such person’s consent, (b) contain orpermit to appear any messages, data, images or programs that are illegal (including Internetgambling), contain nudity or sexually explicit content or are obscene or pornographic (c) containor permit to appear any messages, data, images or programs that would violate the intellectualproperty rights of others, including, but not limited to, unauthorized copyrighted text, images orprograms, trade secrets or other confidential proprietary information, or trademarks or servicemarks used in an infringing fashion. In the event Cardtronics breaches any of its warrantieshereunder, 7-Eleven may require Cardtronics to immediately remove any or all noncompliantCardtronics screens from the Financial Services Kiosk, at 7-Eleven’s sole discretion, untilCardtronics adequately demonstrates to 7-Eleven that Cardtronics is in full compliance with thewarranties set forth herein. Notwithstanding the foregoing, in any event, Cardtronics’ failure toremedy the breach after notice as provided in this Agreement shall be deemed a material breach ofthis Agreement. Cardtronics acknowledges and agrees that, as between Cardtronics and 7-Eleven,Cardtronics will be solely responsible for any claims or other losses associated with or resultingfrom the Financial Services, including, without limitation, any warranty, return or supportobligations related to the Financial Services or any regulatory, statutory, or legal compliance ornon-compliance issues related to the Financial Services. Cardtronics shall provide 7-Eleven withthe name and contact information of an individual who
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will act as a point of contact between 7-Eleven and Cardtronics on all customer service issues, andCardtronics will update such information from time to time as necessary.7.5 Cardtronics Renegotiations. Cardtronics may renegotiate the terms of any Cardtronicsthird party service provider agreement to change maintenance services provided by such third partyin connection with the Financial Services Kiosk Project as of the Effective Date, without therequirement of prior written consent of 7-Eleven, provided that Cardtronics remains in compliancewith the standards set forth in this Agreement.**8.*****Payments and Consideration.***8.1 Cardtronics Transaction Fees. In consideration for the rights granted to it under theAgreement, Cardtronics shall pay 7-Eleven the transaction fees (the “Transaction Fees”) inaccordance with Schedule E and the Alternate Revenue Stream payments in accordance withSchedule E-1.**9.*****Intellectual Property and Software.***9.1 General Knowledge of Parties. Subject to the confidentiality obligations containedherein, nothing contained in this Agreement shall prevent or preclude a Party from utilizing thegeneral knowledge, skill or experience acquired by the Party in the course of performing itsobligations under this Agreement.9.2 Third Party Notices. If a Party receives a notice of infringement, request fordisclosure, subpoena or other inquiry with respect to the other Party’s Intellectual PropertyRights or Confidential Information, it shall, as soon as practical, notify the other Party inwriting. The Party receiving the third party notice shall not respond to such notices, requests,subpoenas or inquiry without first so notifying the other Party in writing.9.3 Trademark Licenses.(a) Cardtronics hereby grants to 7-Eleven a non-exclusive, non-transferable (except as set forth inSection 19.3), royalty-free license, during the Term, to use, display, distribute, performand publish any trademarks, trade names, service marks and logos that may be delivered byCardtronics to 7-Eleven or otherwise authorized by Cardtronics for use by 7-Eleven (the“Cardtronics Marks”) for purposes related to this Agreement. Any use of the Cardtronics Marks by7-Eleven must be approved in advance in writing by Cardtronics and must also comply with thisAgreement and the then-most recent written usage guidelines, if any, that are delivered to 7-Elevenby Cardtronics. Whenever 7-Eleven makes use of any Cardtronics Marks, 7-Eleven shall apply anappropriate legend (where reasonable) acknowledging that such Cardtronics Marks are the property ofCardtronics.(b) 7-Eleven hereby grants to Cardtronics a non-exclusive, non-transferable, royalty-free license(with sublicensing rights to Branding Partners as provided for in Section 11.2), during theTerm, to use, display, distribute, perform and publish any trademarks, trade names, service marksand logos that may be delivered by 7-Eleven to Cardtronics or otherwise authorized by 7-Eleven foruse by Cardtronics (the “7-Eleven Marks”) but only at the Stores and only for purposes related tothis Agreement. Any use of 7-Eleven Marks by Cardtronics must be
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approved in advance in writing by 7-Eleven and must also comply with this Agreement and thethen-most recent written usage guidelines, if any, that are delivered to Cardtronics by 7-Eleven.Whenever Cardtronics makes use of any 7-Eleven Marks, Cardtronics shall apply an appropriate legend(where reasonable) acknowledging that such 7-Eleven Marks are the property of 7-Eleven.(c) Each of 7-Eleven and Cardtronics represent and warrant to the other that its respective Marks,internet sites and marketing materials relating to the Financial Services Kiosk Project shall notcontain or permit to appear (a) any defamatory or libelous material or material that disclosesprivate or personal matters concerning any person, without such person’s consent, (b) any messages,data, images or programs that are illegal (including internet gambling), contain nudity or sexuallyexplicit content or content that is obscene or pornographic or (c) any messages, data, images orprograms that would violate the Intellectual Property Rights of others, including, but not limitedto, unauthorized copyrighted text, images or programs, trade secrets or other confidentialproprietary information, or trademarks or service marks used in an infringing fashion.(d) Cardtronics acknowledges that the 7-Eleven Marks are a symbol of 7-Eleven’s goodwill.Cardtronics agrees that it shall not use, register or attempt to register in the Territory, or anyother location world wide, any trademark, trade name, service mark, domain name or company namethat contains the word or letters “7-Eleven,” “Seven Eleven,” or “7-11” or that would cause alikelihood of confusion with the 7-Eleven Marks.(e) 7-Eleven acknowledges that the Cardtronics Marks are a symbol of Cardtronics’ goodwill.7-Eleven agrees that it shall not use, register or attempt to register in the Territory, or anyother location world wide, trademark, trade name, service mark, domain name or company name thatcontains the word or letters (e.g. “Cardtronics”) or that would cause a likelihood of confusionwith the Cardtronics Marks.(f) The Financial Services Kiosks may be primarily branded with a trade name subject to 7-Elevenwritten approval. Cardtronics may (i) brand the Financial Services Kiosks located outside theStores using a different mark in its discretion; (ii) place other service providers’ brands, logosand marks on the Financial Services Kiosks located inside or outside the Stores; and (iii) placethe brands, logos or marks of other significant Financial Services Kiosk Project suppliers onFinancial Services Kiosk monitors or other physical parts of the Financial Services Kiosks locatedinside or outside the Stores; provided, for each of the foregoing, the placement of additionalbrands or logos on the Financial Services Kiosks shall be selected and approved jointly by theParties. Notwithstanding the foregoing, in no event shall any brands or logos of Competitors of7-Eleven appear on the Financial Services Kiosks whether on the exterior surrounds, screens, orreceipts or coupons.(g) Nothing contained in this Agreement shall give either Party any right, title or interest in orto any Intellectual Property Rights of the other Party, except for the limited rights expresslygranted hereunder.
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**10.*****Confidentiality and Information Security.***10.1 Confidential Information. Each Party (the “Receiving Party”) acknowledges the claimof the other Party (the “Disclosing Party”) that the Receiving Party possesses and shall continueto possess information that has been developed or received by the Disclosing Party, has commercialvalue in the Disclosing Party’s business or that of its customers and is not in the public domain.“Confidential Information” of Cardtronics shall mean (a) all materials of Cardtronics or itsAffiliates, or their respective subcontractors, clearly marked as “Confidential,” and (b) CustomerData with respect to Cardtronics Services. “Confidential Information” of 7-Eleven shall mean allmaterials of 7-Eleven or its Affiliates or franchisees, or their respective subcontractors, clearlymarked “Confidential” and/or all other information of 7-Eleven or its Affiliates or franchisees ortheir respective agents and subcontractors, including information regarding the operations,facilities and consumer markets of such parties, all as provided to or obtained by Cardtronics fromsuch parties, including all media containing any such information (whether on paper, diskette,CD/ROM, or otherwise) subject to the exceptions in Section10.3.10.2 7-Eleven agrees that operating data (including without limitation transaction volumes,pricing, and historical trends) related to the Financial Services Kiosks at 7-Eleven locations(“7-Eleven Operating Data”) may be used by Cardtronics solely as set forth in this paragraph.Cardtronics may aggregate (with other operating data) and de-identify 7-Eleven Operating Data sothat it cannot be related to or otherwise identified with 7-Eleven (“De-identified Data”) and mayuse such De-identified Data for its business purposes. More specifically, Cardtronics will ensurethat the De-identified Data does not include any individual Store identifiers, addresses, zipcodes, DMA information, IP addresses, and any other information that can be used to identify aStore or 7-Eleven. Except as otherwise set forth in this Section, Client will not permit any7-Eleven Operating Data, in whole or in part, or a copy thereof to pass into the possession of anyCompetitor. Provided, however, for the purposes of raising funds or communications and orpresentations with respect to potential investors or the investment community, Cardtronics shall beable to identify 7-Eleven as the source of De-identified Data so long as such data does not includeany individual Store identifiers, addresses, zip codes, DMA information, IP addresses, and anyother information that can be used to identify a particular Store or DMA. Cardtronics agrees thatit shall not permit any Competitor to attempt, directly or indirectly, to re-identify theDe-identified Data.10.3 Exceptions. The confidentiality obligations of the Parties regarding the ConfidentialInformation of the other set forth below shall not apply to any material or information that (a) isor becomes a part of the public domain through no act or omission by the Receiving Party, (b) isindependently developed by the Receiving Party without use or reference to the ConfidentialInformation of the Disclosing Party, (c) is disclosed to the Receiving Party by a third party that,to the Receiving Party’s knowledge, was not bound by a confidentiality obligation to the DisclosingParty, (d) is required by law (including disclosure necessary or appropriate in filings with theU.S. Securities Exchange Commission) or generally accepted accounting principles, or (e) isdemanded by a valid order by a court or other governmental body, as required by law; provided,however, that except to the extent such order results in such Confidential Information becomingpart of the public domain, the confidentiality obligations of the Parties shall continue to applyto such Confidential Information. Each Receiving Party agrees to notify the Disclosing Partypromptly of the receipt of any such order and to promptly provide the Disclosing Party
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with a copy of such order. If a Receiving Party is required to disclose Confidential Informationin response to a valid order by a court or other governmental body, as required by law, theReceiving Party may disclose such Confidential Information only to the extent legally compelled.The Receiving Party shall give the Disclosing Party an opportunity to oppose any such order and toseek a protective order that protects the Confidential Information at issue before the ReceivingParty complies with any such court or governmental order.10.4 Obligations. Subject to Section 10.7, each Receiving Party shall keepconfidential the Disclosing Party’s Confidential Information; provided, however, that a ReceivingParty may disclose such information of the Disclosing Party to persons performing services relatingto the Financial Services Kiosk Project where (a) such disclosure is necessary to perform theReceiving Party’s obligations hereunder or otherwise authorized by this Agreement and (b) suchpersons agree in writing to assume the confidentiality obligations contained herein or areotherwise obligated to maintain the confidentiality of such information on terms substantiallysimilar to the terms of this Section 10. Furthermore, no Receiving Party may (a) make anyuse or copies of the Disclosing Party’s Confidential Information except in performing under thisAgreement, (b) acquire any right in or assert any lien against the Disclosing Party’s ConfidentialInformation, or (c) refuse for any reason (including a default or breach of this Agreement by theDisclosing Party) to promptly provide the other’s Confidential Information (including copiesthereof) to the other if requested to do so.10.5 Disclosure. In the event of any Party becoming aware of any unauthorized disclosureor loss of, or inability to account for, any of the other’s Confidential Information, such Partyshall notify the other Party as soon as reasonably practicable under the circumstances.10.6 Return.(a) 7-Eleven shall transfer possession of all Confidential Information of Cardtronics (includingall existing copies thereof) to Cardtronics upon the termination of this Agreement, whether or notdue to a breach by Cardtronics, or, if 7-Eleven so elects in writing, such materials shall beerased or destroyed from files maintained by 7-Eleven and 7-Eleven shall certify in writing toCardtronics that the same has been erased or destroyed.(b) Cardtronics shall transfer possession of all Confidential Information of 7-Eleven (includingall existing copies thereof) to 7-Eleven upon the termination of this Agreement whether or not dueto a breach by 7-Eleven, or, if Cardtronics so elects in writing, such materials shall be erased ordestroyed from files maintained by Cardtronics and Cardtronics shall certify in writing to 7-Eleventhat the same has been erased or destroyed.10.7 Information and System Security. Cardtronics hereby assumes responsibility formaintaining the security and integrity of the Financial Services Kiosks, but shall not haveresponsibility for maintaining the security and integrity of the Stores, or the merchandise orother assets or employees of 7-Eleven or its franchisees. Subject as aforesaid, Cardtronics shalldevelop and implement a comprehensive security program for the Financial Services Kiosks in orderto comply with Cardtronics’ security and privacy obligations hereunder. As a part of such securityprogram, to the extent commercially reasonable, Cardtronics shall conduct the regular applicationof Cardtronics Software upgrades as necessary to reduce or limit vulnerabilities to
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Viruses and the implementation of vendor recommended security features available on eachCardtronics Service. In the event that Cardtronics is utilizing any aspect of a 7-Eleven networkor telecommunications lines, Cardtronics shall comply with any security obligations in respect ofCardtronics’ use of such lines set forth in any Network Agreement that may exist between 7-Elevenand Cardtronics.10.8 No Other Rights. Nothing contained in this Section 10 shall be construed asgranting to or conferring on a Party, expressly or implicitly, any rights or license to theConfidential Information of the other Party.10.9 Injunctive Relief. The Parties acknowledge and agree that a breach of Sections 10or 11 will give rise to irreparable injury that is not adequately compensable in damages.Accordingly, either Party may seek injunctive relief against the breach or threatened breach ofSections 9 or 10 in addition to any such legal and equitable remedies available.10.10 Business Continuity. Cardtronics shall be responsible for implementing and keepingcurrent disaster recovery and business continuity plans that reasonably anticipate events ordisasters of varying types affecting the delivery of the Cardtronics or 7-Eleven Services. Suchplans shall be subject to 7-Eleven’s approval. Cardtronics will provide 7-Eleven written notice asto any material change in Cardtronics’ disaster recovery and business continuity plan. Anyamendments or updates thereto are also subject to 7-Eleven’s approval under this Agreement.7-Eleven shall further have the right to audit Cardtronics’ disaster recovery and businesscontinuity plans and operations in accordance with Section 17, at 7-Eleven’s sole cost andexpense. Cardtronics shall provide for secure back-up of all data provided by 7-Eleven and for allprocessed data hereunder in accordance with commercially reasonable standards. 7-Eleven’sapprovals under this Section 10.10 shall not be unreasonably withheld, conditioned ordelayed.10.11 System Compromise. If Cardtronics discovers that an unauthorized use, violation,compromise or breach of security (electronic or physical) involving or related to any CardtronicsCustomer Data or the Financial Services Kiosks or the network has occurred, whether the incidentoriginates within Cardtronics or externally (“Security Incident”), Cardtronics will (a) as soon asreasonably possible, but in any event within twelve (12) hours after discovery notify both the**[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSIONPURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**(with written e-mail or facsimile confirmation);(b) use continuous, commercially reasonable efforts to correct the problem within that period, or,if that is not feasible, within a reasonable time period as determined by 7-Eleven; (c) provide7-Eleven with interim and final written reports as 7-Eleven requires; (d) document the securityincident in a detailed incident response log; and (e) cooperate with 7-Eleven in drafting anypublic statements and obtain 7-Eleven’s prior approval of any public statements related to suchbreach before releasing or making such statements. In the event of any Security Incident,7-Eleven, at its option, may immediately conduct a security assessment and/or audit in accordancewith Section 17.
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**11.*****Advertising and Marketing***11.1 Financial Services Kiosk Signage. 7-Eleven owns and shall maintain in good conditionat all times all signage at a Store of any kind, and whether on interior or exterior walls, windowsor doors (“Store Signage”) other than signage which is attached to and part of the FinancialServices Kiosk (“Kiosk Signage”), related to each Financial Services Kiosk, including withoutlimitation, any exterior, back-lit sign (a “Can Sign”) for such a Financial Services Kiosk, notingthe existence of the Financial Services Kiosk therein. The particular site, content and placementof all Store Signage shall be reasonably determined by 7-Eleven, subject to any necessary consentfrom 7-Eleven’s lessors and franchisees (which consents 7-Eleven shall use good faith efforts toobtain). 7-Eleven shall designate a unique, uniform Can Sign indicating the availability ofFinancial Services within Stores, and Cardtronics shall provide each Store with such a Can Sign,and shall install it at Cardtronics’ expense which shall not exceed an average of **[CONFIDENTIALMATERIAL OMITTED AND FILED SEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO ACONFIDENTIALITY TREATMENT REQUEST]**per such Store; provided however, if the costs of the Can Signsat any point exceed the average of **[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPERATELY WITH THESECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENT REQUEST]**per such Storeand Cardtronics elects not to purchase any further Can Signs, 7-Eleven shall not be required toprovide and maintain a Can Sign with respect to any such location. 7-Eleven shall then maintain andexclusively own any such Can Sign. Cardtronics shall own and maintain in good condition at alltimes all Kiosk Signage, at Cardtronics’ expense. Nothing contained herein shall require, however,that 7-Eleven or Cardtronics alter any signage (except for maintenance purposes) currently existingat any Store. 7-Eleven shall ensure that all Store Signage (including without limitation all CanSigns) complies with applicable local, state and federal rules, regulations and /or ordinances, andremains in compliance after the date of this Agreement. Cardtronics shall ensure that all KioskSignage complies with applicable local, state and federal rules, regulations and/or ordinances,including applicable customer notices regarding Transaction fees and surcharges after the date ofthis Agreement.11.2 Marketing Coordination. Although both Parties are free to advertise the FinancialServices Kiosks’ availability in the manner provided in this Section 11, the Parties shallmake commercially reasonable efforts to coordinate their marketing efforts in order to maximizecustomer usage of the Financial Services Kiosks.(a) Cardtronics and/or Branding Partners in connection with Cardtronics’ Financial Servicesbusiness may, at its expense, advertise the existence and location of the Financial ServicesKiosks within each Store and the services offered thereby in such media and in such a manner as toeffectively promote the Financial Services Kiosk Project. Such advertising may identify thelocation of the Store and may feature the name “7-Eleven,” along with the following: “7-Eleven is aregistered trademark of 7-Eleven Inc., all rights reserved”. 7-Eleven grants to Cardtronicsand/or Branding Partners a limited non-exclusive non-transferable royalty-free license to use the7-Eleven Marks solely in accordance with 7-Eleven trademark usage guidelines (a copy of which willbe provided to Cardtronics upon request). Any other advertising or promotion using the 7-ElevenMarks shall be subject to the prior express written consent of 7-Eleven, which shall not beunreasonably withheld, conditioned or delayed. With the exception of the 7-Eleven
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Marks, any promotion, advertising or publicity developed solely by Cardtronics shall be theproperty of and belong exclusively to Cardtronics. All promotion, advertising or publicity of theFinancial Services Kiosks by a Party (or such Branding Partners) shall be subject to the approvalof the other Party, which shall not be unreasonably withheld, conditioned or delayed. Except asotherwise expressly allowed or required by this Agreement, Cardtronics and such Branding Partnersshall not have any right to conduct promotion, advertising or publicity in Stores, or place anysignage in Stores, without the prior written consent of 7-Eleven, which shall not be unreasonablywithheld, conditioned or delayed. Cardtronics shall not be required to spend any specific amounttoward advertising and promotion of the Financial Services Kiosks. For the avoidance of doubt,Cardtronics is permitted to refer to the address of each Financial Services Kiosk inadvertisements, and in listings of Financial Services Kiosk locations in brochures and onCardtronics’ web site, together with a descriptive identifier relating to the location, however,Cardtronics understands and agrees that it does not have the authority to otherwise use any logo,trademark, or other identifying mark of 7-Eleven without the prior consent of as set forth in thisSection 11.2(a) except as provided herein.(b) 7-Eleven shall have the right to advertise the existence of the Financial Services Kiosks atits Stores. 7-Eleven may incorporate the Financial Services Kiosk Project in 7-Eleven’straditional regional advertising and/or national advertising as 7-Eleven deems appropriate in itssole discretion. 7-Eleven may use the Cardtronics Marks in advertising and promoting the FinancialServices Kiosk Project, provided that such advertising shall be restricted to the promotion of theFinancial Services Kiosk Project and (notwithstanding any provision of this Agreement to thecontrary) any such advertising or promotion using the Cardtronics Marks shall be subject to theprior express written consent of Cardtronics, which shall not be unreasonably withheld, conditionedor delayed. Any promotion, advertising or publicity developed solely by 7-Eleven shall be theproperty of and belong exclusively to 7-Eleven. 7-Eleven shall not be required to spend anyspecific amount toward advertising and promotion of the Financial Services Kiosks. Cardtronicsshall use reasonable efforts to procure for 7-Eleven all trademark licenses and other rights fromCardtronics Service vendors or other third parties that 7-Eleven may need or request in order topromote, advertise and/or publicize the Financial Services Kiosk Project as well as the CardtronicsServices offered on Financial Services Kiosks in the Stores, if such licenses and other rights canbe obtained on commercially reasonable terms.**12.*****POS Non-Exclusivity and Non-Solicitation.***12.1 No Point of Sale Exclusivity. Notwithstanding anything to the contrary herein,7-Eleven and its subcontractors shall have the right to install and operate within any Store anypoint of sale or similar devices for the sale of money orders, or for the accessing of bankaccounts, credit cards, debit cards or government benefits in payment of a then current sale ofgoods sold or service rendered by 7-Eleven in the normal course of its convenience store businessor for Cash-Back. Cash-Back shall in no event exceed **[CONFIDENTIAL MATERIAL OMITTED AND FILEDSEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIALITY TREATMENTREQUEST]**per transaction, and in no event shall such amount increase in the first year after theEffective Date. 7-Eleven shall notify Cardtronics of any increase in the Cash Back amount and shallprovide the competitive rationale for such increase. In addition, 7-Eleven can offer AdvancedFinancial Services Functionality (as defined on the Effective Date) in part or in whole over thecounter in Stores
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where the Financial Services Kiosk does not offer the applicable functionality. If Cardtronicsdesires to install the Advanced Financial Services Functionality at issue on a Financial ServicesKiosk in any of these Stores in which it retains Exclusive Rights it shall provide 7-Eleven ninety(90) days written notice and 7-Eleven shall cease such over the counter sales of the applicableAdvanced Financial Services Functionality provided that Cardtronics makes such functionalityavailable in the ninety (90) day period. 7-Eleven and its subcontractors shall also have the rightto install and operate within any Store any other type of kiosk offering any type of service thatdoes not compete with any of the Financial Services offered on the Financial Services Kioskslocated in the Stores.12.2 Right to Hire Employees of the Other Party. Neither Party shall have the right tosolicit the employment of or employ the employees of the other Party with whom they come in contactin connection with the Financial Services Kiosk Project until one year after termination of thisAgreement; provided, however, that the restrictions set forth in this Section shall not prohibitany Party from advertising employment opportunities in publications of wide circulation and fromhiring any employee of the other Party who responds to such advertisements.**13.*****Contract and Project Management.***13.1 Contract Executives. Each Party shall designate a Contract Executive (herein socalled) to be responsible for arranging all meetings, visits and consultations between the Partiesrelating to the performance of this Agreement. The Contract Executives shall also oversee alladministrative matters relating to this Agreement, including invoices, payments and amendments;provided however, that each Contract Executive is authorized only to discharge his or herrespective Party’s obligations set forth herein. The following individuals are hereby designatedby 7-Eleven and Cardtronics, respectively, to be their respective Contract Executives:   7-Eleven Contract Executive: Kevin Elliott   Cardtronics Contract Executive: Michael H. ClinardEach Party may designate a new Contract Executive from time to time by providing notice to theother Party of such designation.13.2 Periodic Reports. Cardtronics shall provide 7-Eleven with the written reportsdescribed in Schedule F, and at the intervals and in the format(s) described inSchedule F.13.3 Periodic Meetings. Cardtronics or 7-Eleven may reasonably request of the other Partythat the Parties schedule and hold at reasonable intervals:(a) meetings of the Contract Executives of the Parties to determine the priorities for maintenanceof the Financial Services Kiosks and the development of new Financial Services;(b) meetings of 7-Eleven and Cardtronics management representatives to review their respectiveperformance reports and to discuss planned or anticipated activities and changes that might affectperformance and such other matters as appropriate;
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(c) meetings of the senior management of the Parties to review relevant contract and performanceissues, which meeting shall occur at least annually; and(d) meetings of other 7-Eleven and Cardtronics personnel, as reasonably necessary to provideinformation regarding each Party’s performance under the Agreement.Any of the meetings referred to herein may, at either Party’s option, be held by telephoneconference call. All such meetings shall have a published agenda issued sufficiently in advance ofthe meeting to allow meeting participants a reasonable opportunity to prepare for the meeting. Theagenda for, as well as minutes of each such meeting shall be the responsibility of the Partycalling the meeting.13.4 Project Management. Cardtronics shall provide Financial Services Kiosk Projectmanagement as the overall project integrator (to the extent necessary), including but not limitedto hardware, surround, network and software integration, installation coordination and marketing.7-Eleven, as an independent contractor, shall reasonably support the development and implementationof the Financial Services on the Financial Services Kiosks. Cardtronics shall establish andmaintain project-wide processes for consolidated issue tracking change control, scheduling,documentation control and signoff control as necessary.**14.*****Regulatory Compliance.***     7-Eleven shall maintain each Financial Services Kiosk Area and Accessway in compliance withall applicable laws, codes, ordinances, rules and regulations (including without limitation theAmericans with Disabilities Act and all related laws, ordinances and regulations, whether federal,state and local) (“Applicable Laws”) throughout the term of this Agreement. Cardtronics shall, atits sole cost and expense, ensure that the operation and security of each Financial Services Kioskand Cardtronics Software and all Cardtronics Services are in compliance with all Applicable Laws,throughout the term of this Agreement. Each Party shall give the other Party timely notice of anynon-compliance under the terms of this provision of which it becomes aware, whether the Partybecomes aware of such non-compliance from a governmental or third-party allegation or otherwise.As a part of each Party’s regulatory compliance obligations hereunder, Cardtronics shall timelyundertake any changes relating to the Financial Services Kiosks, Cardtronics Services, andCardtronics Software as may be required by Applicable Laws; and 7-Eleven shall timely undertake anychanges relating to the Financial Services Kiosk Areas and Accessways as may be required byApplicable Laws. Each Party shall cooperate with the other Party in making any changes requiredunder this provision. Each Party shall indemnify, protect, defend, pay and hold harmless the otherParty, its Affiliates and their respective directors, officers, employees, agents, partners andassigns from and against any and all amounts, demands, claims, suits, causes of action,liabilities, costs, expenses, damages, settlements and judgments (including, without limitation,all claim losses) relating to a breach of that Party’s duties undertaken in this provision and theunderlying non-compliance with any Applicable Laws, or a claim by a government or private party ofsuch non-compliance. In addition, 7-Eleven shall indemnify, protect, defend, pay and hold harmlessCardtonics, its Affiliates and their respective directors, officers, employees, agents, partnersand assigns from and against any and all amounts, demands, claims, suits, causes of action,liabilities, costs, expenses, damages, settlements and judgments (including, without limitation,all claim losses)
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relating to a third party claim against Cardtronics based upon non-compliance by a Store withany Applicable Laws (but excluding any claims to the extent arising in whole or in part from theFinancial Services or the Financial Services Kiosk). Each party shall provide to the other Partyevidence that the Party has complied with such regulatory requirement or law within 30 days (orwhere compliance cannot be achieved with reasonable diligence within 30 days, such longer period asmay be reasonably necessary to achieve compliance, provided that efforts to comply begin withinsaid 30 day period and are continued to completion with reasonable diligence), from the date ofreceipt of the notice of non-compliance or alleged non-compliance from the Other Party. In theevent a Party fails to provide the other Party with evidence of compliance satisfactory to thatParty within such applicable period, then such Party shall be deemed to be in material breach ofthis Agreement.**15.*****Title; Risk of Loss; Taxes***15.1 Ownership of Financial Services Kiosks. Each Financial Services Kiosk shall remainthe property of Cardtronics or any third party from whom Cardtronics leases such Financial ServicesKiosk. Cardtronics shall bear the entire risk of loss to the Financial Services Kiosk or damagedone to it, whether caused by fire, the elements, unavoidable accident or other damage or casualty.If damage to the Store is caused by the Financial Services Kiosk, or by Cardtronics’ negligence orintentional misconduct, then Cardtronics shall reimburse 7-Eleven for any cost or expenses incurredby 7-Eleven, its Affiliates or franchisees or their respective subcontractors as a result of suchdamage.15.2 Financial Services Kiosk Vault Cash.(a) Except as hereinafter otherwise provided, Cardtronics shall be responsible for and shall bearthe entire risk of loss associated with Vault Cash in each Financial Services Kiosk. Cardtronicswaives any right of subrogation it may have against 7-Eleven, its Affiliates and franchisees andtheir respective directors, officers, employees, agents, partners and assigns for any loss ordestruction of the Financial Services Kiosk Vault Cash. As noted in Section 5.2,Cardtronics is responsible for loading cash into all of the ATMs covered hereunder.  In order tofulfill this obligation, Cardtronics has (or will) enter into one or more agreements with one ormore banks (herein the “Cash Provider”) to provide such Vault Cash.  7-Eleven expresslyacknowledges that all Vault Cash placed into any of the Financial Services Kiosks covered by thisAgreement is and, at all times prior to being dispensed to a customer through a valid cashwithdrawal shall, remain the property of the Cash Provider.  Additionally, any cash inserted orplaced into any Financial Services Kiosk by a customer in connection with any Advanced FinancialServices Functionality shall also be considered “Vault Cash”. Neither 7-Eleven, nor any of itscreditors shall have any lien, security interest, right of offset or any other right in or to theVault Cash.  If requested by the Cash Provider to execute a separate document (a “Lien Waiver”)acknowledging Cash Provider’s ownership of any and all Vault Cash placed into the FinancialServices Kiosks, 7-Eleven agrees to do so within three (3) business days of receipt of suchrequest.(b) 7-Eleven and Cardtronics agree to provide reasonable assistance and cooperation to each otherupon request relative to any claim with respect to a Vault Cash Loss. Cardtronics agrees at alltimes to exercise reasonable care in order to discover and investigate any Vault Cash Loss. As
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set forth below, upon discovering a Vault Cash Loss, Cardtronics agrees to furnish to NCR orCardtronics’ other current maintenance provider (the “Maintenance Provider”) and 7-Elevenreasonably satisfactory proof of such loss upon request. The accepting of such information shallnot be an admission of liability on behalf of 7-Eleven. Each Party agrees, upon request of theother, to make available during regular business hours its books, records and accounts which relateto the alleged loss, and each Party will provide reasonable cooperation to the other upon requestin the investigation of such loss, including, but not limited to, sharing all information in itspossession concerning the loss and the circumstances surrounding the same. The Parties furtheragree to provide reasonable cooperation and make all such records available to the MaintenanceProvider with respect to any such investigation upon request. The parties further agree to providereasonable cooperation to Cardtronics’ current armored courier in any such investigation uponrequest. Nothing in this Section 15.2 is intended or shall be construed to requireCardtronics to provide any information or documentation to 7-Eleven, the Maintenance Provider, oranyone else, if such information is available only from the Financial Services Kiosk if theFinancial Services Kiosk has been stolen or destroyed, or has been damaged to such extent as tomake such information unavailable.(c) Given the necessity for the prompt investigation of any claim relating to an alleged Vault CashLoss, Cardtronics agrees that it must present any loss claim to both the Maintenance Provider and7-Eleven in writing within a reasonable time following the discovery of the Vault Cash Loss byCardtronics. 7-Eleven hereby agrees that Cardtronics’ failure to give such notice shall notrelieve 7-Eleven of its obligations hereunder except to the extent the failure materiallyprejudices 7-Eleven’s ability to investigate or prosecute the claim. Such claim must be deliveredby express mail, same-day or overnight courier.(d) If a claimed loss is a Vault Cash Loss, specific types of supporting documentation arenecessary for the Maintenance Provider and/or 7-Eleven to process and investigate the claim.Satisfactory proof of a Vault Cash Loss includes, at a minimum, the following records:Financial Services Kiosk settlement documentation and settlement receipts (network andFinancial Services Kiosk unit counters) for the settlement period during which the lossoccurred together with the settlement report(s) for the previous and following settlementperiods.Copies of Cardtronics’ Financial Services Kiosk network reports indicating theFinancial Services Kiosk’s beginning, ending and dispensed totals for the settlement periodduring which the loss occurred.Copies of the Financial Services Kiosk call log history for the settlement periodduring which the loss occurred, indicating any Financial Services Kiosk status messages andsuspect transactions.Copies of the electronic journal record for the settlement period during which the lossoccurred.Detailed documentation to support Cardtronics’ calculation of the claimed loss.The provisions of this Section govern 7-Eleven’s liability for any claim of lost, missing or stolen
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Vault Cash and other valuables (but excluding the Financial Services Kiosk itself) associated witha Financial Services Kiosk and, with respect to such losses, supersede any inconsistent provisionin this Agreement. In no event (i) will 7-Eleven be responsible for the amount of the Vault Cashtaken by any of its or its franchisee’s employees or agents with respect to each Financial ServicesKiosk that is involved in the incident and in a Store unless such employee or agent of 7-Eleven orof its franchisee is determined by criminal conviction, or a final civil judgment (excluding alldefault judgments except default judgments against 7-Eleven in which 7-Eleven received adequatenotice and service of process) issued by a state or federal court, or clear and convincing evidenceto have directly caused a Vault Cash Loss through his or her gross negligence, intentional act oromission, or criminal act; and (ii) shall 7-Eleven’s liability exceed the Vault Cash LossLiability Limit (per Vault Cash Loss). Cardtronics will cause 7-Eleven to be notified in writingof the institution by Cardtronics of any civil suit against a 7-Eleven or franchisee employeealleging the occurrence of an event which Cardtronics believes may constitute a Vault Cash losshereunder, promptly after such suit is filed. Upon payment of any loss hereunder, 7-Eleven shall besubrogated to all of Cardtronics’ rights and remedies therefore, but only after Cardtronics isfully reimbursed for its loss. OTHER THAN AS SPECIFIED IN THIS SECTION, IN NO EVENT WILL 7-ELEVENBE LIABLE FOR ANY LOSS OF SUCH VAULT CASH OR VALUABLES FROM BURGLARY, ROBBERY, FIRE, FLOOD OR OTHEREXTERNAL CAUSE.15.3 Taxes. Cardtronics shall be responsible for the collection and payment to theapplicable taxing authority of any Taxes. Cardtronics agrees to indemnify, protect, defend, payand hold harmless 7-Eleven, its Affiliates and franchisees and their respective directors officers,employees, agents, partners and assigns from and against any and all such Taxes. Notwithstandingthe foregoing, the provisions of this Section 15.3 shall be inapplicable as to Taxes whichare the responsibility of 7-Eleven under the Purchase Agreement.**16.*****Insurance and Indemnity.***16.1 Cardtronics Insurance. During the complete term of this Agreement (and any period inwhich Cardtronics continues to have a Financial Services Kiosk at any Store) and at its ownexpense, Cardtronics shall provide and maintain insurance as set forth in this Section 16.Cardtronics also agrees to: (i) include in its subcontract with each subcontractor provisionsrequiring that each of its subcontractors authorized to perform Cardtronics’ obligations under thisAgreement purchase and maintain the insurance set forth in this Section 16 for the durationof that subcontractor’s contract with Cardtronics; (ii) use good faith efforts to enforce suchrequirements (except Cardtronics shall not be required to institute litigation to enforce suchrequirements); and (iii) include in its subcontract with each subcontractor provisions requiringeach such subcontractor provide a certificate of insurance to 7-Eleven upon request. The foregoingrequirements shall not apply with respect to contracts assigned to Cardtronics in conjunction withacquisitions. The required insurance is as follows:(a) Workers’ compensation insurance, including occupational disease coverage, if required byapplicable law, with statutory limits in all jurisdictions in which a Financial Services Kiosk islocated or Financial Services are supported under this Agreement, and employer’s liability withlimits of at least $1,000,000 bodily injury each accident, $1,000,000 bodily injury by disease peremployee, and $1,000,000 bodily injury by disease in the aggregate.
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(b) Commercial General Liability insurance written on an “occurrence” basis (excluding automobileliability) with a combined single limit of at least $2,000,000 per occurrence and a generalaggregate of at least $4,000,000 for bodily injury and property damage in forms providing coveragenot less than a standard commercial general liability policy including personal injury, broad formproperty damage liability coverage, products/completed operations coverage and broad formcontractual coverage for liability, for liabilities assumed under this Agreement. Contractualliability coverage limits shall be equal to the above limits. Such policy shall name 7-Eleven asan additional insured.(c) Automobile liability insurance protecting automobiles and trucks owned or operated byCardtronics or its Affiliates or subcontractors, either on or away from the Stores with a combinedsingle limit of $1,000,000 per occurrence for bodily injury and property damage. Such policy shallinclude coverage for all hired, owned and non-owned automobiles and trucks.(d) Excess liability policy with limits of not less than $10,000,000 per occurrence in excess ofthe primary underlying policy limits; provided however that this requirement shall not apply toCardtronics’ subcontractors. The policy must provide coverage at least as broad as the underlyingcomprehensive general liability and automobile liability policies**.**(e) All risk property insurance covering physical damage to the Financial Services Kiosks placed ina Store under this Agreement, and other property owned by or leased to Cardtronics in connectionwith such Financial Services Kiosks.16.2 7-Eleven Insurance. During the complete term of this Agreement (and any period inwhich Cardtronics continues to have a Financial Services Kiosk at any Store) and at its ownexpense, 7-Eleven shall provide and maintain insurance as set forth in this Section 16.2.(a) Commercial General Liability insurance written on an “occurrence” basis (excluding automobileliability) with a combined single limit of at least $2,000,000 per occurrence and a generalaggregate of at least $4,000,000 for bodily injury and property damage in forms providing coveragenot less than a standard commercial general liability policy including personal injury, broad formproperty damage liability coverage, products/completed operations coverage and broad formcontractual coverage for liability, for liabilities assumed under this Agreement. Contractualliability coverage limits shall be equal to the above limits.(b) Excess liability policy with limits of not less than $10,000,000 per occurrence in excess ofthe primary underlying policy limits. The policy must provide coverage at least as broad as theunderlying comprehensive general liability and automobile liability policies**.**(c) The parties agree that 7-Eleven may self-insure in whole or in part for any of the foregoingrisks.16.3 General Requirements. The following general requirements shall apply to all insurancepolicies required to be obtained under this Section 16, and the Parties agree to thefollowing:(a) They shall maintain the foregoing insurance coverage in force at all times during theperformance of any services under the Agreement. As to Cardtronics’ subcontractors, the
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insurance requested or required shall be maintained at all times during the term of the subcontractor franchise agreement, whichever applies.(b) Cardtronics will furnish 7-Eleven satisfactory certificates of insurance evidencing theinsurance required by this Agreement prior to the commencement of the Agreement and annually fromthe date of the Agreement or as policies are renewed, replaced, or modified. 7-Eleven shall no morethan once annually provide satisfactory certificates of insurance evidencing the insurance requiredby this Agreement upon request by Cardtronics. Failure to provide the certificates will constitutea material breach of this Agreement which, if not cured pursuant to Section 18.3, shallentitle the non-breaching party to terminate the Agreement.(c) All policies shall be written by insurance companies that are (a) lawfully authorized to dobusiness in the jurisdiction(s) where work is being performed or services are provided and (b)carry an A.M. Best rating of “A” or better and financial category of “X” or higher.(d) Each policy shall include a provision requiring that at least 30 days prior written notice begiven to 7-Eleven, in the event of cancellation, non-renewal, lowering of policy limits orexhaustion of aggregates. Cardtronics shall provide 7-Eleven with 30 days prior written notice ofany material change in any policy.(e) Cardtronics (or its subcontractors, if applicable) shall pay the premiums on all insurancepolicies it is required to obtain under this Section 16, and the cost for such premiumsshall be included in the compensation (if any) payable to Cardtronics for services pursuant to theterms of this Agreement. 7-Eleven shall pay the premiums on all insurance policies it is requiredto obtain under this Section 16.(f) As to each required insurance policy, except for Workers’ Compensation, to the extent permittedby applicable law, Cardtronics shall name 7-Eleven, its Affiliates and their respective directorsofficers, employees, agents, partners and assigns as “additional insureds.” Cardtronics shallobtain, as to required General Liability and Excess Liability policies, ISO endorsement form CG2010(11/85) ***Additional Insured – Owners, Lessees, or Contractors****(Form B)*or equivalent endorsementthat names 7-Eleven, its Affiliates and their respective directors officers, employees, agents,partners and assigns as additional insureds for both ongoing operations of the company andcompleted operations of the company.(g) Except where prohibited by law, all insurance policies required by this Agreement shall includea Waiver of Subrogation in favor of the other Party, and its Affiliates and their respectivedirectors, officers, employees, agents, partners and assigns.(h) Each of Cardtronics’ insurance policies shall be written so as to provide primary coverage andto be non-contributing with respect to any other insurance or self insurance which may bemaintained by 7-Eleven.(i) The insurance requirements set forth herein shall in no way limit the liability of the Partiesarising under this Agreement.(j) As to insurance it is required to procure and maintain under this Section 16,Cardtronics (or its subcontractors, if applicable) shall be responsible for the payment of any andall
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deductibles or SIR (“Self Insurance Retention”) applicable under its insurance policies. Thedeductible or SIR shall be approved in writing by 7-Eleven.16.4 7-Eleven Indemnification For Third Party Claims. Except for claims that are basedupon the infringement of Intellectual Property Rights, 7-Eleven agrees to indemnify, protect,defend, pay and hold harmless Cardtronics, its Affiliates, and their respective directors,officers, employees, agents, partners and assigns from and against any and all demands, claims,suits, causes of action, liabilities, costs, expenses, settlements and judgments (including,without limitation, all claim losses), whether arising in equity, at common law or by statute,including any deceptive trade practices act, or under the law of contracts, torts (including,without limitation, negligence and strict liability without regard to fault) or property, of everykind or character (collectively, “Claims”), arising in favor of or brought by any of 7-Eleven’s orits Affiliates’ employees, agents, subcontractors or representatives, or by any governmental agencyor any other third party, based upon, in connection with, relating to or arising out of (a) thirdparty claims arising from 7-Eleven’s breach of this Agreement, or (b) damage to property of thirdparties or bodily injury to third parties to the extent caused by the negligent acts or omissionsor intentional wrongdoing of 7-Eleven’s employees or agents (but not for Vault Cash Losses); or(c) for Vault Cash Losses to the extent that 7-Eleven is liable for such as set forth inSection 15.2.16.5 Cardtronics’ Indemnification For Third Party Claims. Except for claims that are basedupon the infringement of Intellectual Property Rights, Cardtronics agrees to indemnify, protect,defend, pay and hold harmless 7-Eleven, its Affiliates and their respective directors, officers,employees, agents, partners and assigns from and against any and all Claims arising in favor of orbrought by any of Cardtronics’ or its Affiliates’ employees, agents, subcontractors orrepresentatives, or by any governmental agency or any other third party, based upon, in connectionwith, relating to or arising out of (a) Cardtronics’ failure to comply with any law, rule orregulation applicable to its performance of Cardtronics Services under this Agreement, (b) thirdparty claims arising from Cardtronics’ breach of this Agreement, (c) damage to property or bodilyinjury to the extent caused by the negligent acts or omissions or intentional wrongdoing ofCardtronics’ or its Affiliates’ employees or agents, (d) customer claims arising out ofCardtronics’ provision of Cardtronics Services, or (e) claims brought by any other vendor providingservices or software to Cardtronics in connection with the Financial Services Kiosks, (f) claimsbrought by any other subcontractor or agent engaged by Cardtronics, (g) the Americans withDisabilities Act, or (h) any Security Incident (as defined in Section 10.11) or any othersecurity breach related to any Financial Services Kiosks.16.6 Cardtronics Intellectual Property Indemnity. In addition to the indemnificationobligations above, Cardtronics agrees to indemnify, protect, defend, pay and hold harmless7-Eleven, its Franchisee’s Affiliates and their respective directors, officers, employees, agents,partners and assigns from and against any and all Claims brought by any third party based upon, inconnection with, relating to or arising out of any claims that the Financial Services Kiosks, orany component thereof, the Financial Services Kiosk software or the Financial Services infringe anyIntellectual Property Right of any third party. In the event that the third party prevails in itsinfringement claim by obtaining a final judgment from which no further appeal is taken, and suchfinal judgment includes an injunction against the further use of Cardtronics Software (which shallbe referred to as the “Infringing Material”), then in addition to its indemnification
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obligations, Cardtronics’ shall be obligated to (1) purchase from the third party the right for7-Eleven to continue using the Infringing Material; or (2) replace the Infringing Material withmaterial which provides substantially equivalent functionality that does not infringe on the thirdparty’s Intellectual Property Rights.16.7 General Provisions Relating to Indemnities. A person entitled to indemnificationunder this Agreement (an “Indemnified Person”) shall give prompt written notice to any person whois obligated to provide indemnification under this Agreement (an “Indemnifying Party”) of thecommencement or assertion of any Claim by a third party (collectively, a “third-party action”) inrespect of which such Indemnified Person shall seek indemnification hereunder. Any failure so tonotify an Indemnifying Party shall not relieve such Indemnifying Party from any liability that suchIndemnifying Party may have to such Indemnified Person under this Section 16 unless thefailure to give such notice materially and adversely prejudices such Indemnifying Party. TheIndemnifying Party shall have the right to assume control of the defense of, settle, or otherwisedispose of such third-party action on such terms as it deems appropriate; provided, however, that:(a) The Indemnified Person shall be entitled, at its own expense, to participate in the defense ofsuch third-party action (provided, however, that the Indemnifying Party shall be required to paythe attorneys’ fees of the Indemnified Person only if (i) the employment of separate counsel shallhave been authorized in writing by any Indemnifying Party in connection with the defense of suchthird-party action, (ii) the Indemnifying Party shall not have employed counsel reasonablysatisfactory to the Indemnified Person to have charge of such third-party action, (iii) theIndemnified Person shall have reasonably concluded that there may be defenses available to suchIndemnified Person that are different from or in addition to those available to the IndemnifyingParty, or (iv) the Indemnified Person’s counsel shall have advised the Indemnified Person inwriting, with a copy delivered to the Indemnifying Party, that there is a material conflict ofinterest that could violate applicable standards of professional conduct to have common counsel;(b) The Indemnifying Party shall obtain the prior written approval of the Indemnified Person beforeentering into or making any settlement, compromise, admission or acknowledgment of the validity ofsuch third-party action or any liability in respect thereof if, pursuant to or as a result of suchsettlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would beimposed against the Indemnified Person or if, in the opinion of the Indemnified Person, suchsettlement, compromise, admission or acknowledgment could have a material adverse effect on itsbusiness, operations, assets or financial condition;(c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlementthat does not include as an unconditional term thereof the giving by each claimant or plaintiff toeach Indemnified Person of a release from all liability in respect of such third-party action; and(d) The Indemnifying Party shall not be entitled to control (but shall be entitled to participateat its own expense in the defense of), and the Indemnified Person shall be entitled to have solecontrol over, the defense or settlement, compromise, admission or acknowledgment of any third-partyaction (i) as to which the Indemnifying Party fails to assume the defense within a reasonablelength of time or (ii) to the extent the third-party action seeks an order, injunction or
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other equitable relief against the Indemnified Person which, if successful, would materiallyadversely affect the business, operations, assets or financial condition of the Indemnified Person;provided, however, that the Indemnified Person shall make no settlement, compromise, admission oracknowledgment that would give rise to liability on the part of any Indemnifying Party without theprior written consent of such Indemnifying Party.(e) The parties hereto shall extend reasonable cooperation in connection with the defense of anythird-party action pursuant to this Section 16 and, in connection therewith, shall furnishsuch records, information and testimony and attend such conferences, discovery proceedings,hearings, trials and appeals as may be reasonably requested.**17.*****Reporting and Audit Rights.***The Parties shall agree upon types and formats of reports that will be provided by Cardtronicshereunder. Unless otherwise agreed by the Parties, Cardtronics will submit to 7-Eleven on a timelybasis reports that reflect (i) the types of Financial Services available on the Financial ServicesKiosks, the types and number of Transactions conducted via the Financial Services Kiosks, and thedollar value of each type of Transaction conducted via the Financial Services Kiosks; and (ii)meeting of service levels and other matters, as utilized by 7-Eleven prior to the Effective Date(containing at least the level of detail utilized by 7-Eleven). Cardtronics shall provide to7-Eleven and 7-Eleven’s auditors (including internal audit staff), inspectors, regulators,consultants, subcontractors and other representatives as 7-Eleven may from time to time designatein writing, access with no fewer than three days’ notice to the part of any facility used byCardtronics and its Affiliates and subcontractors in connection with the Financial Services KioskProject, to personnel of Cardtronics and its Affiliates and subcontractors working on the FinancialServices Kiosk Project, and to data and records relating to the Financial Services Kiosk Projectfor the purpose of performing audits and inspections of Cardtronics and its Affiliates andsubcontractors and their respective businesses to the extent related to the Financial ServicesKiosk Project, to verify the integrity of the Customer Data, to examine the systems that supportand transmit that data, and to allow 7-Eleven to conduct audits of Cardtronics’ compliance with itsobligations hereunder, including (a) the practices and procedures of Cardtronics and its Affiliatesand subcontractors, (b) general controls and security practices and procedures of Cardtronics andits Affiliates and subcontractors, (c) disaster recovery and backup procedures of Cardtronics andits Affiliates and subcontractors, (d) compliance with applicable legal or regulatory requirementsby Cardtronics and its Affiliates and subcontractors and (e) payment or non-payment of amounts dueto 7-Eleven pursuant to this Agreement. 7-Eleven shall in no event conduct any such audithereunder more frequently than once per calendar year unless either (y) 7-Eleven has reasonablecause to believe Cardtronics has breached this Agreement or (z) 7-Eleven must conduct such audit toenable 7-Eleven to meet applicable legal or regulatory requirements. Cardtronics shall provide tosuch auditors, inspectors, regulators, consultants, subcontractors and representatives suchassistance as they reasonably require, including installing and operating audit software (providedthat any such audit software will not adversely affect the privacy, security or integrity ofCardtronics’ data). Cardtronics shall cooperate fully with 7-Eleven and such auditors, inspectors,regulators, consultants, subcontractors and representatives in connection with any audit conductedpursuant to this Section 17. The audit rights contained in this Section 17 shallsurvive termination or expiration of this Agreement.
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**18.*****Term and Termination.***18.1 Term. The term of this Agreement shall end at 11:59 p.m. (Dallas, Texas time) on thetenth anniversary of the Effective Date unless earlier terminated or extended as provided herein.18.2 Renewal Terms. 7-Eleven and Cardtronics agree to begin discussing and negotiating anextension of this Agreement, which extension shall be on terms and conditions acceptable to both7-Eleven and Cardtronics, on March 1, 2014. If no agreement to extend this Agreement is reachedprior to June 1, 2014, or as otherwise mutually agreed, (i) this Agreement will expire at the endof the Term; and (ii) beginning on June 1, 2016, the parties will begin negotiating in good faith aplan for removal of the Financial Services Kiosks from the Stores.18.3 Termination for Cause.(a) Generally. Except as otherwise provided in this Section 18.3, either Party mayterminate this Agreement for cause if the other Party (the “Breaching Party”) breaches any of itsmaterial duties or obligations under this Agreement and does not cure such breach within areasonable period during which the breaching party works diligently and in good faith to cure suchbreach, of at least 30 but not to exceed sixty 60 days after written notice thereof from theterminating Party.(b) Termination for Non-Payment. 7-Eleven may terminate this Agreement upon written noticeto Cardtronics if Cardtronics does not pay any amount due hereunder after receipt of thirty (30)days written notice of such failure.(c) Termination for SLA Breach. 7-Eleven may terminate this Agreement upon thirty (30) dayswritten notice to Cardtronics if Cardtronics commits any breach specified in, and subject to theterms and conditions of, Schedule D. In addition, if Cardtronics either: (a) refuses orfails to timely install or operate a Financial Services Kiosk in a Store when required to do so inaccordance with the terms of this Agreement, or (b) fails to provide the maintenance services asset forth in Schedule D herein as to a Financial Services Kiosk in a Store, then 7-Elevenmay terminate Cardtronics’ Exclusive Rights and all other rights and obligations hereunder withrespect to such Store upon thirty (30) days written notice in the same manner and with the sameeffect as if such date were the expiration date of this Agreement as to such Store.(d) Termination for Change of Control.7-Eleven may terminate this Agreement in the event that (i) a Competitor acquires 10% ormore of the outstanding voting securities of Cardtronics, Inc. or any of its successorentities (“Cardtronics, Inc.”); (ii) Cardtronics, Inc. or any of its subsidiaries acquires10% or more of the outstanding voting securities of a Competitor; or (iii) there is anappointment of a director to the board or similar governing body of Cardtronics, Inc. or anyof its subsidiaries or an employment by Cardtronics, Inc. or any of its subsidiaries of anyperson who is also a director, officer or employee of, or holds an equivalent position with,a Competitor or an entity who or which controls a Competitor. Cardtronics shall give promptwritten notice to 7-Eleven upon the occurrence of any of the events set forth in theprevious sentence or if any Competitor becomes an Affiliate of Cardtronics, Inc. or any ofits subsidiaries. In the event 7-Eleven desires to terminate this Agreement as
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provided in this subsection (d), 7-Eleven shall first provide written notice to Cardtronics(a “Competitor Termination Notice”). Cardtronics shall then have a period of sixty (60)days from the date of its receipt of the Competitor Termination Notice (the “CompetitorTermination Cure Period”) to unwind the transaction(s) that gave 7-Eleven the terminationright under this subsection (d). If Cardtronics is able to unwind such transaction(s)during the Competitor Termination Cure Period, then any right of 7-Eleven to terminate thisAgreement based on, and all other rights and remedies of 7-Eleven in respect of, suchtransaction(s) shall automatically expire as of the date such transaction(s) are unwound.If, however, Cardtronics is unable to unwind such transaction(s) during the CompetitorTermination Cure Period, then 7-Eleven may immediately terminate this Agreement upon writtennotice to Cardtronics. For purposes of this Agreement, the term “control” (including theuse of any of the terms “controlling,” “controlled by” and “under common control with”)means the possession, direct or indirect of the power to direct or cause the direction ofthe management and policies of a person, whether through the ownership of voting securities,by contract, or otherwise.18.4 Internal Dispute Escalation. Except as otherwise provided in this Agreement, alldisputes, claims and controversies between the Parties arising out of or related to this Agreement,including without limitation any claim of misrepresentation, breach or non-performance(collectively, “Disputes”), shall be determined in the following manner:(a) The Dispute shall be referred by each Party to its respective Contract Executive.(b) If the Contract Executives do not, within 20 days from the date of referral, resolve theDispute, the Dispute shall be referred to 7-Eleven’s Chief Financial Officer or his/her designeeand Cardtronics’ Chief Financial Officer or equivalent for resolution. If such individuals cannotresolve the Dispute within twenty (20) business days, then the Parties may exercise their rights atlaw or in equity to resolve the Dispute.(c) If one of the individuals designated in (a) or (b) above is ill or unavailable during sixtypercent (60%) of the time specified for resolving the Dispute, his or her immediate subordinateshall serve instead. Referral of a Dispute shall be made in a written notice sent by certifiedmail, return receipt requested, setting forth the nature of the Dispute, and the period specifiedin (b) shall commence on receipt of such notice.(d) Notwithstanding anything in the foregoing to the contrary, the internal dispute escalationprocedures set forth in this Section 18.4 shall not extend the applicable cure periodspecified in Section 18.3 nor derogate a Party’s right to terminate this Agreement, or toterminate Cardtronics’ rights and obligations as to a particular Store, upon expiration of suchcure period. If any Party fails to follow the internal dispute escalation procedures set forthherein, such Party shall be in material breach of this Agreement. The internal dispute escalationprocedures set forth herein shall not limit a Party’s rights to obtain injunctive or otherequitable relief as permitted herein.18.5 Change of Control. [Intentionally Omitted].
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18.6 Termination for Insolvency. In the event that either Party (a) files for bankruptcy,(b) becomes or is declared insolvent, or is the subject of any proceedings related to itsliquidation, insolvency or the appointment of a receiver or similar officer for it, (c) makes anassignment for the benefit of all or substantially all of its creditors or (d) enters into anagreement for the composition, extension or readjustment of substantially all of its obligations,then the other Party may, by giving written notice to the first Party, terminate this Agreement asof a date specified in such notice of termination; provided, however, that either Party shall nothave the right to exercise such termination so long as the other continues to perform withoutinterruption or a noticeable diminution in its performance hereunder.18.7 Removal of Financial Services Kiosks. Within 30 days after expiration or terminationof this Agreement, Cardtronics shall commence on a schedule mutually agreed by the parties, atCardtronics sole cost and expense, the Removal of all Financial Services Kiosks from all Stores andin no event shall Removal exceed one hundred eighty (180) days from the expiration or terminationof this Agreement, unless (i) both parties agree to mutually extend in writing, or (ii) thisAgreement is terminated by Cardtronics due to a default or breach by 7-Eleven in which case thetime period shall be extended to one (1) year. Cardtronics shall use commercially reasonableefforts to minimize disturbances to Store operations during Cardtronics’ Removal of any FinancialServices Kiosks. Removal of each Financial Services Kiosk shall include obtaining all necessarypermits, and taking the Financial Services Kiosk from the Store. Except in the case of (1) damageto the Financial Services Kiosk Area caused by Cardtronics’ negligence in removing the FinancialServices Kiosk, (2) any other damage to the Store (excluding the Financial Services Kiosk) or tomerchandise or equipment of 7-Eleven or its franchisees therein, or to customers, patrons,employees and invitees of 7-Eleven or such franchisees while therein, caused by Cardtronics inremoving the Financial Services Kiosk and (3) the repair of any damage to the floor of the Storecaused by Cardtronics’ bolting Financial Services Kiosks to the floor of the Store (“ExceptedDamages”), Cardtronics shall not be obligated to restore the Financial Services Kiosk Area (such asbut not limited to the walls, flooring and utility service) to its original or any subsequentappearance and condition, nor to otherwise improve, modify, or (except for Excepted Damages) repairthe Financial Services Kiosk Area, unless otherwise agreed by Cardtronics and 7-Eleven, whichagreement may be conditioned by Cardtronics upon (among other things) payment by 7-Eleven of allcosts associated with such restoration, improvement, modification, or (except for ExceptedDamages)) repair. Except as set forth herein, restoration of the Financial Services Kiosk Area, if7-Eleven chooses to do so, shall be done by 7-Eleven at its sole option, expense and risk,according to plans and specifications and by a subcontractor chosen by 7-Eleven. Once Vault Cashhas been removed from the Financial Services Kiosk at a Store, Removal of such Financial ServicesKiosk must be completed within five (5) business days. If Cardtronics has not commenced orcompleted the Removal within such period, 7-Eleven may complete the Removal itself or arrange forthe Removal to be accomplished by subcontractors chosen by 7-Eleven. Cardtronics shall promptlypay all reasonable costs incurred by 7-Eleven arising from the Removal upon presentation ofinvoices to Cardtronics. If Cardtronics fails to remove the Financial Services Kiosk as set forthherein, such Financial Services Kiosk shall be deemed to be abandoned, and all right, title andinterest in such Financial Services Kiosk shall automatically revert to, and become the propertyof, 7-Eleven; provided that 7-Eleven shall not be entitled to the Vault Cash. Notwithstanding theforegoing, however, Cardtronics shall not be obligated to remove signage which is included in thedefinition of “Financial Services Kiosk” in this Agreement, but which is not owned by Cardtronics,in connection with the expiration or
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termination of this Agreement. Cardtronics shall remain liable for and shall reimburse 7-Elevenfor any reasonable expenses it incurs in removing abandoned Financial Services Kiosks not timelyremoved by Cardtronics when required to do so in accordance with this Agreement.18.8 Transitional Operation. Upon 7-Eleven’s request, Cardtronics shall continue tooperate the Financial Services Kiosks after expiration or termination of this Agreement upon thesame terms and conditions as are in this Agreement until such time as the Removal of the FinancialServices Kiosk is complete. In any event, Removal of all Financial Services Kiosks shall becompleted no later than one hundred eighty (180) days after the expiration or termination of thisAgreement, unless both parties agree to mutually extend in writing. Notwithstanding anything tothe contrary, Cardtronics shall continue to pay 7-Eleven all Transaction Fees and any AlternativeRevenue Stream payments or other amount payable to 7-Eleven hereunder as to any Financial ServicesKiosk during any period in which a Financial Services Kiosk is operating in a Store. Further, inthe event Cardtronics stops offering the Financial Services prior to the completion of Removal,Cardtronics shall pay 7-Eleven all Transaction Based Fees for each day exceeding thirty (30) untilremoval of the Financial Services Kiosk is complete based on average Transactions over the lasttwelve (12) months in which Cardtronics met all service levels (annualizing the available months iftwelve months are not available).18.9 Termination/Expiration Assistance. Commencing 180 days prior to expiration, orcommencing upon any notice of termination (including any notice based upon breach or default by7-Eleven) for up to 180 days from the effective date of termination of this Agreement, Cardtronicsshall provide to 7-Eleven, or at 7-Eleven’s request to 7-Eleven’s designees (including one or morethird parties), any and all reasonable assistance requested by 7-Eleven to (i) allow the FinancialServices to continue with minimal disruption and to facilitate the orderly transfer of the 7-ElevenServices to 7-Eleven or its designees; and (ii) ensure the continuity and availability of theFinancial Services Kiosks and Financial Services at each Store (provided that Cardtronics isreimbursed by 7-Eleven for all reasonable and necessary out of pocket costs incurred by Cardtronicsto extent that any such services are above the normal scope of services in providing suchassistance).(a) During any transitional period, Cardtronics shall provide to 7-Eleven, or to 7-Eleven’sdesignees at 7-Eleven’s request, any and all reasonable assistance requested by 7-Eleven so tofacilitate the orderly transfer of the 7-Eleven Services to 7-Eleven’s designee18.10 Disclaimer of Consequential Damages. Except for indemnification obligations andbreaches of confidentiality obligations, in no event will either Party will be liable to the otherfor any special, incidental, punitive, exemplary or consequential damages.**19.*****General.***19.1 Relationship of the Parties. 7-Eleven and Cardtronics agree that Cardtronics, infurnishing the Financial Services, is acting as an independent contractor. Each Party is actingfor its own account and neither is authorized to make any commitment or representation, express orimplied, on the other’s behalf. In all matters relating to this Agreement, neither Party nor suchParty’s employees or agents are, or will act as, employees of the other Party within the meaning orapplication of any federal or state laws.
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19.2 Entire Agreement. This Agreement, including any Schedules referred to herein, each ofwhich is incorporated herein for all purposes, together constitute the entire agreement between theParties with respect to the subject matter hereof and supersedes all prior agreements, whetherwritten or oral, with respect to the subject matter contained in this Agreement. No amendment,change, waiver or discharge hereof shall be valid unless expressly set forth in writing and signedby an authorized representative of the Party (which in the case of 7-Eleven shall be a VicePresident) against which such amendment, change, waiver or discharge is sought to be enforced.19.3 Assignment. This Agreement may not be assigned or transferred by either Party to anythird party, either voluntarily, involuntarily, or by operation of law, without the prior writtenconsent of the other Party, which consent shall not be unreasonably withheld, conditioned ordelayed. Notwithstanding the foregoing, a Party may assign this Agreement, without the consent ofthe other Party, (a) in its entirety to any Affiliate controlling, controlled by or under commoncontrol with the assigning Party, (b) to any person resulting from the merger or consolidation ofthe assigning Party, (c) to any person that acquires more than 50% of the assigning Party’s commonstock or other voting securities, or (d) to any person that acquires all or substantially all ofthe assigning Party’s assets. Notwithstanding anything to the contrary in this provision,Cardtronics may not assign this Agreement to any entity that (directly or indirectly) owns orcontrols or is a convenience store operator. The term “control” (including the terms“controlling,” “controlled by” and “under common control with”) means the possession, direct orindirect, of the power to direct or cause the direction of the management and policies of a person,whether through the ownership of voting securities, by contract, or otherwise. Subject to theforegoing, the rights and liabilities of the Parties under this Agreement shall bind and inure tothe benefit of their respective successors and assigns. Any attempted assignment in violation ofthis Section 19.3 shall be null and void.19.4 Notices. All notices, requests, demands and determinations under this Agreement(other than routine operational communications) shall be in writing and shall be deemed dulydelivered (a) when delivered by hand, (b) one day after being given to a nationally recognizedover-night delivery service with a reliable system for tracking delivery, (c) when sent byconfirmed facsimile with a copy sent by another means specified in this Section 19.4, or(d) six days after the day of mailing, when mailed by United States mail, registered or certifiedmail, return receipt requested, postage prepaid, and addressed as follows:In the case of Cardtronics:3110 Hayes Road, Suite 300****