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Everi General Terms and Conditions

Effective Date: May 1, 2020 (v.20.1)

  1. SERVICES; SCOPE. Each agreement between Everi and Customer for any cash access and other Everi products and services (each a “Service” or “Product”, as applicable and any one or more the “Services”, as applicable) shall be subject to these Everi General Terms and Conditions, together with the terms and conditions of the Service Order or Order (each, an “Ordering Document”). During the term of the Services provided in accordance with the applicable Ordering Document. Everi shall have the exclusive right to provide each contracted Service at the Premises (as defined and set forth on the applicable Ordering Document), and except as set forth on the applicable Ordering Document, no other party shall provide any substantially similar or competing service at the contracted Premises during the term of Services. Except for intellectual property provided to Everi by Customer for its use in connection with any of the Services, Everi shall retain on an exclusive basis, all right, title, and interest, in any and all intellectual property developed, delivered, licensed to and/or used by Everi in the performance of the Ordering Document and the provision of the Services. Capitalized terms used herein without definition shall have the meaning provided in the applicable Ordering Document.
  2. FEES, PAYMENTS AND TAXES. Except as otherwise set forth herein, the fees and any other charges or payments due to either party applicable to the Services are as set forth in the Ordering Document, and all amounts set forth in the Ordering Document or invoice pursuant to the Ordering Document are in U.S. dollars. Except as otherwise expressly stated in the Ordering Document, all amounts are exclusive of, and Customer shall be responsible for the payment of any applicable taxes, duties, and other charges associated with the Services (exclusive of federal and state taxes based on Everi’s net income, capital or gross receipts). Everi reserves the right to set-off any and all undisputed liability of Customer to Everi or any of Everi’s subsidiaries or affiliates, including, without limitation, any undisputed costs, expenses, fees, and chargebacks, from any amounts due and payable to Customer by Everi, and Customer agrees that Everi may deduct such liabilities provided that Everi shall provide written notice of any and all amounts deducted pursuant to this Section, together with the applicable calculations, and reasonable non-confidential supporting documentation setting forth the basis for such deduction.
  3. REIMBURSABLE EXPENSES. In the event an Everi representative is required to access and visit the Premises to provide (i) any customization or relocation of equipment requested by Customer which is outside the scope set forth in the Ordering Document, or (ii) any repair to Everi Property (as defined in Section 7) vandalized or otherwise damaged while in the possession or control of Customer, and which is not the fault of Everi, Customer shall reimburse Everi for all costs and expenses in connection therewith, including, without limitation, for reasonable travel, lodging, and food costs; provided that at Customer’s option, Customer may provide complimentary lodging and food credit in lieu of reimbursement for lodging and food expense (collectively, “Reimbursable Expenses”). Travel related Reimbursable Expenses which do not reasonably comply with Customer’s then current written reimbursable travel expense policy for the similar type of expense, may be subject to reduction by Everi, upon Customer’s written notice to Everi within thirty (30) days of receiving the invoice for such Reimbursable Expense, (i) only to the extent that such Reimbursable Expenses fail to comply with such policy, and (ii) provided that Customer provided Everi a current copy of such policy reasonably prior to Everi incurring such Reimbursable Expenses.
  4. NETWORK, CARD ASSOCIATION AND OTHER THIRD PARTY RATES, FEES AND COSTS. Customer acknowledges and agrees that Everi has no control over the rates, fees, or costs imposed by any payment network, card association, governmental authority, telecommunication provider or other third party vendor required for the provision of the Services, including without limitation, interchange rates, therefore fluctuations to any of the foregoing will affect the amounts otherwise payable to Customer under the Ordering Document to the extent necessary to pass through any such increased or new rates, fees or costs. Everi shall provide not less than thirty (30) days’ notice to Customer of any such change, and at Customer’s election, Customer shall have the right to submit a change order to Everi to increase the cardholder fees or surcharges otherwise chargeable to Customer patrons to absorb such increased or new rates, fees or costs. Pursuant to Customer written request, Everi shall provide Customer with non- confidential information and/or non-confidential third-party documentation evidencing such increased or new rates, fees or costs together with any non-confidential computations to reasonably support any such changes passed through by Everi.
  5. NOTICE OF DISPUTE. Customer may dispute a fee, commission, or other charge arising under the Ordering Document and set forth in any invoice, statement or other written document provided by Everi, by providing written notice of such dispute to Everi (a “Notice of Dispute”). The Notice of Dispute shall include a detailed description of the exact items and amounts disputed and the nature of the dispute. Any such Notice of Dispute must be received by Everi no later than ninety (90) days after the date of the applicable invoice, statement or other written document provided by Everi. Except with respect to any invoice, statement or other written document that is subject to a Notice of Dispute, all invoices, statements or other written documents shall not be subject to further dispute or other adjustment by Customer after expiration of such ninety (90) day period. The parties shall negotiate in good faith any items or matters set forth in a Notice of Dispute, and any such items or matters that are not settled pursuant to this Section, shall be settled pursuant to Section 24 hereof.
  6. NONPAYMENT. Everi reserves the right to charge a late penalty of one and a half percent (1.5%) per month against any amounts overdue in excess of thirty (30) days, including chargebacks, or the maximum rate permitted by law, whichever is less, and/or seek collection of all amounts due, including all attorneys’ fees and costs of collections. In addition, unless the outstanding payment is subject to a pending Notice of Dispute that the parties are seeking to resolve pursuant to Section 5 or Section 24 hereof, and without waiving any other rights or remedies to which it may be entitled, for any amounts more than sixty (60) days overdue, Everi, shall have the right to suspend its provision of the applicable Service until such payment is received.
  7. EQUIPMENT AND SUPPLIES. Customer agrees that where Everi provides any hardware, software, equipment, cash, and/or supplies for use in connection with the Services (excluding any equipment purchased from Everi by Customer), such items shall remain the sole property of and title shall at all times vest in Everi (“Everi Property”). Customer shall not permit any encumbrance to exist on any Everi Property nor shall Customer permit any other use of such Everi Property without the prior written consent of Everi. Customer shall maintain “all risks” or “special causes of loss” (including theft) property insurance on Everi Property while it is on Customer’s Premises, at their full replacement cost, and shall name “Everi Payments Inc.” as a loss payee with respect to such Everi Property and, upon Everi’s request, Customer shall provide to Everi a certificate evidencing such insurance with an insurance carrier rated at least “A-VII” by the current edition of Best’s Key Rating Guide. To the extent required, Customer consents to Everi’s filing or recordation of any paperwork Everi deems reasonably required to maintain its rights in any such Everi Property. Upon the expiration or earlier termination of any applicable Ordering Document, Customer shall fully cooperate, without delay, with Everi’s retrieval of any and all Everi Property provided for use in connection with such Services. Everi and its agents, representatives, employees, and contractors shall have the right to access any devices and equipment related to the Services to perform maintenance and updates thereon and to enter the Premises to exercise its rights and perform its obligations under the Ordering Document, provided that Everi shall provide reasonable notice under the circumstances to Customer and/or any applicable gaming regulatory authorities, and shall schedule such during times mutually agreeable by the parties where practicable.
  8. FACILITIES AND UTILITIES. Customer will provide at its own expense, all facilities, utilities and similar services at the Premises that are necessary and appropriate for the comfortable use and operation of any equipment required for the provision of the Services. These costs and expenses include, but are not limited to, dedicated electrical, lighting, air conditioning, heating, and/or any structural reinforcement required for the placement of any equipment and/or the provision of the Services. Customer shall provide reasonable lighting and physical security for any equipment, maintain the exterior, clean the surrounding area, and remove any trash in order to maintain a safe and functional area for the use and operation of any equipment. Customer shall pay any and all real property taxes pertaining to its property and the Premises, to the extent applicable to Customer. Customer shall obtain appropriate signage, building and construction permits for the installation of the equipment in accordance with applicable law and/or regulation.
  9. TELECOMMUNICATIONS AND NETWORK CONNECTIVITY. Except as otherwise set forth in the Ordering Document, Customer shall install and provide all telecommunications and network connectivity, equipment and services, including, but not limited to, telephone, internet and other data lines used in connection with the Services (“Telecom”); provided that Customer may, at any time, request Everi to install or provide all or a portion of the Telecom, subject to Customer’s reimbursement to Everi for costs and expenses incurred by Everi in connection with the provision of such Telecom to Customer, and any other fees as set forth on the Ordering Document. For any time during which Customer elects to provide the Telecom, then Everi shall have no liability for service issues, network failures, system up-time, or Everi’s failure to meet Customer’s expectations with respect to the network availability of the Services.
  10. PCI-DSS. Each party acknowledges and agrees that, in connection with the provision of the Services, each party has access to and the ability to transmit, store or process cardholder account and/or transaction information (collectively, “Cardholder Data”). At all times that each party has access to, or possession of, Cardholder Data, each party will comply with and adhere to the payment card industry (“PCI”) data security standard (“DSS”) in effect from time to time and shall implement and maintain appropriate measures designed to meet the objectives of PCI DSS. Upon the request of one party, the other party will provide updated copies of their attestation of compliance. In the event a PCI representative or PCI authorized third-party seeks to conduct a security audit or review of such party at any time, including, without limitation, after an alleged or actual security intrusion, for the purpose of such party’s status, effectiveness or compliance with the PCI DSS, each party will fully cooperate with such audit or review. Each party (a) is responsible for, and will ensure, the integrity, security and confidentiality of Cardholder Data, (b) will protect against any anticipated unauthorized access, threats or hazards to the integrity, security or confidentiality of Cardholder Data; and (c) except as otherwise permitted herein, will only disclose or use the Cardholder Data for those permitted purposes required for the performance of its covenants and obligations under the Ordering Document and, in any event, only in accordance with applicable law. Each party will maintain and implement an incident response plan which meets minimum PCI DSS requirements. If either party suspects or becomes aware of any unauthorized access to any Cardholder Data by any unauthorized person or third party, or becomes aware of any potential security incident relating to Cardholder Data held or stored by such party in connection with the performance of the Services under the Ordering Document (“Security Breach”), such party shall provide to the other party written notice of any Security Breach promptly and in no event later than one (1) business day following the discovery of such Security Breach.
  11. ADVERTISING AND DISPLAY. Neither party shall use the other party’s trademarks, name or any other proprietary designation without the prior consent of that party, which consent may be withheld in their sole and absolute discretion. Customer shall obtain Everi’s prior approval on any and all advertising or other promotional information or materials related to any Services. Customer shall allow the display at the Premises of materials provided by Everi which are required to be displayed, or that are reasonably necessary or advisable to be displayed, under applicable state or federal law or regulation, including but not limited to as required by any card association or card network; provided that the display of any other materials that do not meet such criteria, shall be as mutually agreed between the parties, consent not to be unreasonably withheld.
  12. ADDITIONAL REQUIREMENTS. Customer acknowledges and agrees that Everi, as a non-financial institution, is required to utilize a financial institution to obtain sponsorship into card associations and networks. Everi’s ability to provide certain Services to Customer may be subject to Customer’s execution of documents required by such third party financial institution, or any applicable regulatory authority, card association and/or card network to ensure compliance with all applicable regulatory, card association and network rules and regulations, and Customer shall not unreasonably withhold its consent to any such documentation. Furthermore, Customer acknowledges and agrees that Everi may contract with a third party services provider (“Provider”), to provide on behalf of Everi part or all of the Services under or pursuant to the Ordering Document. Customer hereby acknowledges and agrees that Everi’s ability to provide such Services to Customer may be subject to Customer’s execution of certain documents required by a Provider or one of its affiliates and Customer shall not unreasonably withhold its consent to any such documentation. Customer acknowledges and agrees in connection with the equipment, software and Telecom or otherwise that is required for Everi’s provision of the Services, Customer will not unreasonably withhold assistance to Everi to allow for such Services to be compliant with all applicable laws, rules and regulations. Such Customer assistance may include but is not limited to network segmentation and mitigating of system component and/or software vulnerabilities, as appropriate. Notwithstanding the foregoing, Customer will be solely responsible to comply with and implement financial sector industry cybersecurity standards as it relates to Customer’s system and network (“System Security Management”) which includes but is not limited to timely installation of applicable security patches, firewalls, and antivirus software. Everi shall not be responsible for the System Security Management of Customer’s system or network. Customer acknowledges and agrees it shall also comply with the “Data Access and Security Requirements” which are updated from time to time and can be found online on the Terms and Conditions site or successor site.
  13. RESOLUTION REQUEST. Immediately following the electronic or written request of Everi, Customer covenants and agrees that it shall diligently and fully cooperate with all requests by Everi for the disclosure of information reasonably required with respect to Everi’s investigation and resolution of any error involving an electronic funds transfer, as required by applicable law. In the event Customer fails to comply with the foregoing, without limiting the indemnification obligations of Customer set forth in Section 19 hereof, Customer shall be obligated to Everi for the aggregate of all amounts Everi is required by applicable law to credit to the patron arising from or related to any delay by Customer in response to such request.
  14. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and warrants to the other party that it has all right, power and authority to grant the rights granted herein and to perform all of its obligations hereunder; and that the execution of the Ordering Document, delivery and performance by it of its obligations hereunder or under any Ordering Document made a part hereof do not conflict with and will not result in a breach or default by it of any of its obligations under any other contract, agreement or understanding. Additionally, Customer represents and warrants to Everi that it owns or controls each of the legal entities which control and/or operate, or itself has the right to operate any locations at which the Services are being provided. Each party hereto represents and warrants that it has, or will have, at the time of performance, all necessary and appropriate licensing, approvals and other equivalent authority to perform its obligations under each applicable Ordering Document.
  15. COMPLIANCE WITH LAW. Each party hereto shall comply with all applicable federal, state, and local laws, and the rules and regulations of all applicable networks and card associations required of it, including, without limitation, those applicable to the operation of ATMs. Each party shall be responsible for obtaining and maintaining all necessary licenses, authorizations, permits and approvals required by the regulatory agencies to which they are subject. In the event of a lapse or delay of the requirements of the preceding sentence by either party, the parties shall agree to resolve the delay pursuant to Section 24 hereof.
  16. REGULATORY COMPLIANCE. The parties hereby acknowledge and agree that the Ordering Document may be contingent on obtaining certain licensing, approvals, and/or certifications, including but not limited to, approval by Everi’s Gaming Regulatory Compliance Committee (collectively, “Approvals”), and if either party fails to obtain or maintain any such Approvals, then the other party, in its sole and absolute discretion, may terminate the Ordering Document, in whole or in affected part, without incurring further liability, and such termination, when made in good faith, shall not constitute a default, breach or unexcused delay of performance.
  17. PRIVILEGED LICENSES. Each party and its affiliates may be subject to and exist because of privileged licenses issued by governmental authorities responsible for or involved in the regulation of gaming activities and/or any other regulatory authority having jurisdiction over the applicable party or its affiliates (each a “Authority” and collectively “Authorities”).
    1. Information and Cooperation. Upon request by a party to the Ordering Document (the “Requesting Party”), the other party to the Ordering Document (the “Requested Party”) shall, at its sole cost and expense, provide all requested information and obtain any Approvals requested or required of the Requested Party by any Authority. If the Requested Party fails to satisfy any requirements of this subsection (a) or if an Authority directs the Requesting Party or any of its affiliates to cease business with the Requested Party, notwithstanding any other provision hereof, the Requesting Party shall have the right to terminate the Ordering Document upon written notice and without incurring liability or further obligation.
    2. Problematic Associations or Activities. If the Requesting Party shall in good faith determine, in its reasonable judgment, that the Requested Party, or any of its officers, directors, employees, agents, representatives, or material shareholder, or any lender or financial participant (i) has, is or is reasonably likely to engage in any activity or activities, or (ii) has, is or is reasonably likely to be involved in any relationship, either of which could or does jeopardize any privileged license of the Requesting Party or any of its affiliates’ or if any such license is or is likely to be threatened, denied, curtailed, suspended or revoked as a result of (i) or (ii) above, then notwithstanding any other provision hereof, the Requesting Party shall have the right to terminate the Ordering Document and its relationship with the Requested Party without incurring further obligation or liability.
  18. FOREIGN CORRUPT PRACTICES ACT.Certain laws prohibit the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist a party in obtaining or retaining business. Each party hereby represents, covenants and warrants that: (a) it shall not violate any laws in regards to anti-corruption, anti-bribery and money laundering such as the United States Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act of 2010, and other similar laws as applicable to Customer or to Everi in the jurisdiction; (b) it shall notify the other party in accordance with law in the event it knows, or has reasonable belief that a breach of any such laws has occurred; and (c) that except for the contractual benefits expressly set forth herein or in the Ordering Document, or in another written agreement between the parties, it has not been offered any payments or benefits to enter into the Ordering Document with the other that would constitute a violation of this Section.
  19. MUTUAL INDEMNIFICATION. Each party hereto shall indemnify and hold the other party hereto, its members, directors, agents, employees, contractors and representatives harmless from and against all third party claims, liabilities, causes of actions, demands, and expenses (including attorney’s fees and disbursements) by reason of, based upon, relating to, or arising out of a breach of any of the representations, warranties or covenants contained herein or in the Ordering Document by such indemnifying party, or that are caused by the negligent, wanton or willful errors, acts, or omissions of such indemnifying party, its agents, employees, contractors, representatives, patrons or invitees, or the failure of such indemnifying party to comply with any applicable law, ordinance or regulation. The party entitled to be indemnified hereunder shall promptly notify the indemnifying party of any claim, demand, suit, or proceeding with respect to which it seeks indemnification and the indemnifying party shall at all times have the right to defend, settle, or compromise such claims, demand, suit, or proceeding with counsel of its own choosing and in such manner as it may deem advisable.
  21. LIMITATION OF LIABILITY. Each party’s aggregate liability to the other and its affiliates, employees and representatives under the Ordering Document, whether for breach of contract, breach of warranty or in tort, including negligence, shall not exceed an amount equal to the total fees Everi received under from Customer under the Ordering Document under which such liability arose, less the total commissions paid to Customer, interchange fees, and any unreimbursed chargebacks with respect to the applicable Services giving rise to the alleged breach, act or omission, during the twelve (12) month period immediately preceding such event (or partial period thereof) during the term under the Ordering Document giving rise to such claim. No action or claim arising out of the Ordering Document or the provision of any service regardless of the type of action or claim being made may be brought by either party more than one year after the earliest date upon which the circumstances, acts and/or omissions giving rise to such claim or action first occurred. Liability for damages will be limited and excluded even if any exclusive remedy provided for in the Ordering Document fails of its essential purpose. Notwithstanding the foregoing, each party will be responsible for the full extent of its own liability arising from, and the foregoing limitation of liability shall not apply, with respect to: (a) death or personal injury resulting from negligent acts, omissions, or willful misconduct; (b) rightful claims for non-payment; (c) breach of confidentiality and data protection obligations; (d) indemnification obligations; or (e) the non-excludable statutory rights of consumers (for example, under laws providing for strict product liability).
  23. FORCE MAJEURE. Neither party hereto shall be liable for any failure to perform due to acts of God, acts of any government authorities, or any payment network or card associations, war, fires, floods, explosions, or other natural catastrophes, civil disturbances, strikes (not caused by Everi), riots, unusually severe weather such as tornadoes, or failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment that significantly restrict or prohibit the Services contemplated in the Ordering Document (“Event of Force Majeure”). Upon the occurrence of an Event of Force Majeure, and so long as no other breach of the Ordering Document by such party has occurred and is continuing, the performance of each party’s obligations shall be suspended during the period of the Event of Force Majeure and the period thereafter reasonably required to recommence performance of its obligations (the “Suspension Period”). The Term of the Ordering Document shall be automatically extended by a period equal to the Suspension Period; provided, however, in the event such Event of Force Majeure continues and exists for a period in excess of twelve (12) months, the party not relying on such Event of Force Majeure may forthwith terminate the Ordering Document and/or any applicable Ordering Document with notice to the other. The parties shall use their commercially reasonable efforts to minimize the consequences of any Event of Force Majeure.
  24. DISPUTE RESOLUTION. Any claim or controversy arising out of the Ordering Document or a breach hereof shall be settled by final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association in Clark County, Nevada by three arbitrators, one of whom shall be selected by Everi, one of whom shall be selected by Customer, and the third of whom shall be selected by the mutual agreement of the other two arbitrators. Judgment on any award rendered by the arbitrators may be entered in any court located in such county and state. The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, the right to collect from the other party all costs and fees incurred by such prevailing party in connection with the arbitration, including without limitation administrative fees, arbitrator fees, travel expenses, out-of-pocket expenses such as copying, telephone and facsimile charges, witness fees and attorneys’ fees. The provisions of this Section shall survive any termination or expiration of the Ordering Document.
  25. TERMINATION; EFFECT OF TERMINATION. In the event of a material breach of the Ordering Document by either party, the non- breaching party shall provide the breaching party with notice of the nature of the breach, and except as otherwise provided herein, the breaching party shall have thirty (30) days from the date of receipt of such notice to cure such breach. In the event any such breach is not cured within such thirty (30) day period, the non-breaching party may thereafter terminate the Ordering Document upon thirty (30) days prior notice to the breaching party. Without prejudice to any other rights or remedies, Everi may terminate the Ordering Document without liability if (a) Customer or one of its representatives participates in any activities that are in violation of card association or card brand rules, (b) if any regulatory authority, applicable law or regulation or card association or network rules and/or regulations abolish, prohibit or materially limit Everi’s provision of Services, surcharging of particular Services, or installation, placement and maintenance of the equipment required for the applicable Services, or (c) Customer’s chargebacks during any ninety (90) day period exceed three percent (3%) of the aggregate monetary volume of transactions completed by Customer during such ninety (90) day period. In addition to any other obligations that either expressly, or by their nature, survive the expiration or termination of the Ordering Document, Everi shall continue to invoice Customer for any chargebacks and or other amounts, and Customer shall continue to be liable for same until all such amounts are fully and finally settled. Upon the expiration or earlier termination of the Ordering Document, upon Customer’s request, and subject to all of Customer’s duties and obligations with respect to such Services set forth hereunder, Everi may at its discretion continue the provision of Services, but such Services shall be as an accommodation only, and Everi shall not be obligated to provide such Services or provide consideration to Customer for Services provided after expiration or termination of the applicable Ordering Document.
  26. RIGHT OF FIRST REFUSAL. With respect to Services provided pursuant to an Ordering Document, Customer agrees to provide Everi the right of first refusal to provide such Services to Customer and the applicable Premises upon the expiration or termination (“End of Service”).of such Ordering Document (“Right of First Refusal”), subject to the following: (a) Everi must agree to provide the applicable Services upon Material Financial Terms and Conditions (as defined herein) no less favorable than those offered to Customer by an alternate provider; and (b) Everi’s uncured material breach is not the cause for End of Service under such Ordering Document. Customer agrees to provide Everi timely written notice of the Material Financial Terms and Conditions offered it by alternate providers for substantially similar services, products or equipment as those provided by Everi pursuant to a Ordering Document, prior to the anticipated End of Service for such services, products or equipment Everi shall notify Customer in writing without delay, of its intent to exercise or waive such Right of First Refusal, but in no event later than thirty (30) days’ after Everi’s receipt of such notice. “Material Financial Terms and Conditions” means the aggregate amount payable to Customer in respect of ATM, credit, debit, or quasi-cash transaction services, as applicable, regardless of whether such amount is structured as a buy rate, commission or otherwise. With respect to each Ordering Document, Everi’s Right of First Refusal shall survive until Everi first declines to exercise such right when given the opportunity to do so.
  27. ACQUIRED PROPERTIES. Everi shall have the right of first refusal to provide the Services to any newly constructed or developed or acquired gaming establishment which Customer, or any entity that is controlled, owned by, or is under common control or ownership with Customer opens for operations or takes over operations, after the Effective Date of the applicable Ordering Document (“Acquired Property”); provided that Everi is not in material breach of the Ordering Document at the time such acquired Property is acquired. Everi may exercise such right of first refusal by notifying Customer in writing of its intent to do so within thirty (30) days after receiving notice of the opening or acquisition of such Acquired Property and after receiving notice of the terms and conditions proposed by alternate providers. If Everi exercises its right of first refusal for any such Acquired Property, then such Acquired Property shall automatically be added as a location that will receive Services that is in effect upon the commencement or takeover of operations at such establishment and shall be added to the list of Premises of each Ordering Document (as such term is defined in each applicable Ordering Document). Customer agrees that where an Acquired Property is subject to an existing third party Ordering Document for a substantially similar service, product or equipment as those provided by Everi pursuant to the Ordering Document (“Existing Third Party Agreement”), it shall not renew or attempt to renew such Existing Third Party Agreement to the extent possible without breach of such agreement. If Everi exercises its Right of First Refusal with respect to an Acquired Property, such location shall be added to the list of Premises on each applicable Ordering Document (a) upon the expiration or termination of such Acquired Property’s then existing agreement with Everi for the Services, if Everi already provides Service to the Acquired Property at the time of its acquisition; or (b) upon Customer’s commencement or takeover of operations at such Acquired Property, except where the Acquired Property is subject to an Existing Third Party Agreement for such services; otherwise (c) upon the first date such Acquired Property is able to receive the applicable Service from Everi without breach of its obligations under such Existing Third Party Agreement. For purposes of this Section, the acquisition of all or substantially all of the assets of a gaming establishment or any transaction or series of transactions pursuant to which Customer acquires beneficial control or ownership of the equity securities of an establishment or any entity directly or indirectly controlling such establishment shall be deemed to be any acquisition of such establishment.
  28. CONFIDENTIALITY. Neither party shall disclose the terms of the Ordering Document to any third party without the prior consent of the other party, except as (i) required by law; and (ii) requested or required pursuant to comply with law or the order of a court with competent jurisdiction, or an applicable regulatory authority.
  29. INDEPENDENT CONTRACTOR. The parties to the Ordering Document are acting as independent contractors and independent employers. Nothing contained in the Ordering Document shall create or be construed as creating a partnership, joint venture or agency relationship between the parties. Neither party shall have the authority to bind the other party in any respect. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.
  30. ASSIGNMENT. Subject to Section 17 hereof, either party may assign the Ordering Document without the other party’s prior written consent, provided (a) such assignee agrees in writing to be bound by the terms and conditions hereof and (b) with respect to any assignment by Customer, such assignee is not a competitor of Everi or any of its affiliates. Without limiting the foregoing, in the event that Customer’s assignee is a gaming establishment at which Everi provides Services at the time such gaming establishment becomes Customer’s assignee, Everi shall select, in its sole discretion, whether such gaming establishment’s then existing agreement with Everi or the Ordering Document shall govern the provision of Services to such assignee. Nothing in the Ordering Document, express or implied, is intended to confer on any person other than the parties hereto, and their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of the Ordering Document, including third party beneficiary rights.
  31. NOTICES. Any notice required by the Ordering Document or given in connection with it, must be in writing and (i) personally delivered to any party hereto, or sent to such party by (ii) by recognized overnight delivery services with charges prepaid, (iii) United States certified mail, postage prepaid, or (iv) facsimile with written confirmation of transmission. Notice shall be sent to a party’s registered address or the designated address set forth in the Ordering Document, and will be deemed to have been duly given to such party: (a) upon receipt, if delivered by personal delivery, (b) the following business day after sending by facsimile or by recognized overnight delivery services, and (c) five (5) business days after mailing by certified mail as set forth above. Either party may designate a different address to which notices are to be sent by notifying the other party of such different address in accordance with the Ordering Document.
  32. CHOICE OF LAW. The Ordering Document shall be governed by, construed, and enforceable in accordance with Nevada law, without regard to any choice or conflicts of laws rules which would result in the application of any laws other than the internal laws of the state of Nevada..
  33. CONSTRUCTION AND INTERPRETATION. The headings contained in the Ordering Document are for ease of reference only and shall not affect the meaning or interpretation of the Ordering Document. The Terms and Conditions of the Ordering Document shall be construed as a whole according to their fair meaning and not strictly for or against any party. The parties acknowledge that any rule of construction that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of the Ordering Document. No course of dealing, usage, custom of trade or communication between the parties shall modify or alter any of the rights or obligations of the parties hereunder. As used herein, (a) the term “include”, or any derivative thereof, shall not mean that the items following such term are the only types of such items, (b) the term “shall” indicates a mandatory obligation, and (c) the term “may” indicates a permissive election and does not imply any duty to exercise such election.
  34. MODIFICATION AND WAIVER. The Ordering Document may be modified only by a further writing that is duly executed by both parties. Notwithstanding the foregoing, no terms contained in any Customer issued purchase order shall be deemed to modify the terms hereof, regardless of whether or not such are in a writing, and whether or not such purchase order has been accepted by Everi. Notwithstanding the foregoing sentences, Everi reserves the right to modify any of the terms and conditions of the Ordering Document including any aspect of the Services in its sole discretion at any time with or without notice. No waiver by either party of any rights hereunder and no waiver by either party of any provision of the Ordering Document, shall be deemed effective unless in writing executed by the waiving party. A waiver by either party of a breach of any provision of the Ordering Document shall not constitute a waiver of any prior or subsequent breach of the same or any other provision of the Ordering Document. The failure or delay by either party to exercise any right shall not operate as a waiver of such right. The exercise by either party of any of its rights shall not preclude that party’s further exercise of such right or of any other right, nor be construed as a waiver of any that party’s other rights, powers and remedies.
  35. SEVERABILITY. If a court of competent jurisdiction finds any provision of the Ordering Document to be invalid or unenforceable as to any person or circumstances, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances, and if feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity, provided, however, that if the offending provision cannot be so modified, it shall be stricken and all other provisions of the Ordering Document in all other respects shall remain valid and enforceable.
  36. ADDITIONAL TERMS FOR THE STATE OF WASHINGTON. In addition to the foregoing, for Premises located in the State of Washington, Customer:
    1. shall operate in full compliance with Chapter 19.230 RCW and the rules adopted under this Chapter; and
    2. is prohibited from using sub-delegates or conducting business from locations not authorized by the department in connection with performing its obligations under the Ordering Document. A description of the specific money services Everi has permitted Customer to perform on behalf of Everi is set forth in the Ordering Document.
  37. ADDITIONAL TERMS FOR THE STATE OF KENTUCKY. In addition to the foregoing, for Premises located in the State of Kentucky, in accordance with Kentucky Regulation KRS 286.11-035, for any cash access Services provided by Everi:
    1. Everi authorizes Customer to operate pursuant to an express written contract as set forth in the Ordering Document;
    2. Everi designates Customer as its agent with authority to engage in money transmission on behalf of Everi as authorized under KRS 286.11-035 and pursuant to the Ordering Document;
    3. Customer hereby agrees it shall operate in full compliance with KRS 286.11-035, and rules promulgated under this subtitle, and any order issued by the commission pursuant to this subtitle;
    4. Neither Everi nor Customer may authorize subagents for money transmission;
    5. Customer shall timely remit all money legally due to Everi in accordance with the terms of the Ordering Document;
    6. Everi and Customer are subject to regulation by the commissioner; and
    7. Everi and Customer shall comply with all applicable federal and state law.
  38. TRIBAL RIDER. In the event that Customer is a Native American owned or operated entity, or a branch of a Native American tribe, the terms of that certain document entitled “Tribal Rider” are hereby incorporated in their entirety into the Ordering Document.
  39. CONFLICT OF TERMS. If the Ordering Document contains provisions that are inconsistent with these Everi General Terms and Conditions, the terms of the Ordering Document shall prevail only with respect to the Service provided pursuant to such Ordering Document, however no contrary terms contained in any Ordering Document shall in any way modify or alter these Everi General Terms and Conditions with respect to any other Ordering Document except as may be expressly agreed between the parties in a mutually signed writing.