SERVICE AGREEMENT
This Services Agreement (the "Agreement") is made as of December 14, 2004 (the
"Effective Date") by and between Asia Payment Systems, Inc., a Nevada
corporation, having a principal place of business at 000 0xx. Xxxxxx #0000
Xxxxxxx, XX 00000 XXX ("API") on the one hand, and Max to One, a Tokyo
corporation having its principal place of business at 0X, Xxxxxxxx Xxxxxxxx
Xxxx., 0-0-00, Xxxxxxxx, Xxxxxx-xx, Xxxxx, Xxxxx ("MTO"), on the other hand
(each a "party" and collectively the "parties"), as follows:
ARTICLE 1 PURPOSE.
The purpose of the Agreement is to realize the transmission of card transaction
data for both authorization and settlement between API and MTO merchants set
forth in the Statement of Work attached hereto as Exhibit "A" ("Services"). It
is the intent of both parties that MTO will provide Sales and Marketing
activities in Japan for the purpose of processing the transactions from MTO
Sales/Marketing efforts in Japan to Asia Pay for processing of credit card (and
debit card where applicable) transactions.
ARTICLE 2 RESPONSIBILITY.
Both Parties shall cooperate on a timely basis and perform activities to fulfill
its obligations and responsibilities under this Agreement. In addition, each
party shall be responsible for the following:
2.1. API's responsibility
a. Transmission of credit transaction data (authorization and
settlement) generated at the merchants utilizing POS system
authorized by API to the network operated by GP Net for data
transmission between merchants and card issuers/acquirers
("GPNET").
b. Other related services deemed necessary.
2.2. MTO's responsibility
a. "Acquisition" as an acquiring agent of merchant accounts via
Sales and Marketing efforts in Japan such that MTO merchants
will subsequently transmit sales transactions to Asia Pay for
processing and settlement.
b. MTO will further provide advice and support to MTO merchants on
an ongoing basis and will be the first line of contact for
issues or questions from MTO merchants as to processing
capabilities and applications.
c. Other related services deemed necessary.
ARTICLE 3 PRIVACY AND INFORMATION SECURITY.
The parties acknowledge and agree that transaction data includes information
that is subject to
applicable law related to the use of transaction data, including the Law
Concerning the Protection of Private Information and associated regulations.
Parties shall not use transaction data, nor shall it duplicate or incorporate
transaction data into its own records or databases, except to the extent
necessary to perform the services and its other obligations under the Agreement.
ARTICLE 4 CONFIDENTIALITY.
4.1. MTO shall not disclose any confidential information of API to any
third parties other than directors, executives, employees, agents, affiliates or
subsidiaries of MTO, or use any such information for any purpose other than for
the purpose of performing the Services. MTO shall maintain any such information
in confidence using the same degree of care as it takes to protect its own
confidential and proprietary information of similar type and value, but in no
event less than a reasonable degree of care.
4.2. "Confidential Information," as used herein shall mean any technical
and commercial information, patent, copyright, computer programs, trade secret,
business models, know-how and processes of the disclosing party which is
disclosed hereunder in tangible form and prominently marked "confidential" or
"proprietary" or disclosed orally, provided such disclosure is identified as
"confidential" or "proprietary" and subsequently described in writing and
delivered to the receiving party within thirty (30) days of oral disclosure.
4.3. API shall not disclose to any third parties Confidential Information
of MTO acquired through receiving the Services, or use such information for any
purpose other than the transaction contemplated hereunder, without its prior
written consent.
4.4. The obligations provided in this article shall not apply to the
information that (i) is owned or possessed by the receiving party without owing
any obligations to keep it in confidence, (ii) is legitimately acquired from a
third party without owing any obligations to keep it in confidence, (iii) is
independently developed without reference to information provided by the
disclosing party, (iv) is of public domain prior to the date of this Agreement
or subsequently becomes public domain through no fault of a receiving party or
(v) is provided without being marked or identified as confidential in accordance
with the second paragraph of this article.
4.5. Upon termination or expiration of this Agreement, the receiving party
shall, at the selection of the disclosing party, return all documents, materials
and any other media containing Confidential Information to the disclosing party
or destroy them.
ARTICLE 5 LIMITATION OF LIABILITY.
In no event shall either party hereto be liable to any other party hereto for
any special, indirect, consequential, punitive or incidental damages (including
but not limited to damages for loss of profits) arising out of or in connection
with this Agreement, regardless of forms of action, whether by contract, tort or
otherwise, even if it was or should have been aware or advised of the
possibility of such damages.
2
ARTICLE 6 FORCE MAJEURE.
6.1. Neither party shall be liable for any default or delay in the
performance of its obligations under this Agreement (i) if such default or delay
is caused, directly or indirectly, by fire, flood, earthquake, elements of
nature or acts of God or any other cause beyond the reasonable control of such
party; and (ii) provided the non-performing party is without material fault in
causing such default or delay and such default or delay could not have been
prevented by reasonable precautions. In such event, the non-performing party
shall be excused from further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such party continues to
use its best efforts to recommence performance or observance whenever and to
whatever extent possible without delay. Any party so delayed in its performance
shall immediately notify the party to whom performance is due by telephone (to
be confirmed in writing within two (2) business days of the inception of such
delay) and describe in reasonable detail the circumstances surrounding such
delay.
6.2. If any event under Section 7.1 substantially prevents, for more than
thirty (30) consecutive days, the performance of the Services necessary for the
conduct of those business functions, at its option, either party may elect, by a
written notice, to terminate this Agreement without liability to the other
party.
ARTICLE 7 TERM OF AGREEMENT.
The term of this Agreement shall become effective on December 14, 2004, and
shall remain in effect for a period of 3 (three) years from such date, and
thereafter shall be automatically extended for successive periods of 1 (one)
year each, unless either party shall have otherwise notified to the other party
in writing at least six (6) months prior to the expiry of this Agreement or any
extension thereof.
ARTICLE 8 TERMINATION.
8.1. Termination by Breach. In the event of any material breach by either
party hereto (the "defaulting party"), and if such breach is rectifiable, the
defaulting party's failure to rectify such breach within thirty (30) days after
the other party hereto (the "non-defaulting party") giving written notice to the
defaulting party, the non-defaulting party may immediately terminate this
Agreement by giving written notice to the defaulting party.
8.2. Upon written notice to the defaulting party, the non-defaulting party
may immediately terminate this Agreement at any time upon the occurrence of any
or more of the following events: (i) attachment, provisional attachment or
provisional disposition, or commencement of any proceedings for bankruptcy,
civil rehabilitation, corporate rehabilitation, corporate adjustment or special
liquidation; (ii) dishonor of notes or checks, or disposition to suspend
transactions with banks is announced by the clearing house; (iii) announcement
of default of tax payments due; (iv) suspension of payment, (v) suspension of
business or (vi) material change in the majority shareholders in or control over
one party.
3
ARTICLE 9 ASSIGNMENT AND DELEGATION.
Neither party shall assign or transfer this Agreement or its rights under this
Agreement without prior written consent by other party.
ARTICLE 10 INDEPENDENT CONTRACTOR.
The relationship established between the parties is and shall always be that of
an independent contractor, and nothing herein contained shall be construed to
give to either party any right as an employee, agent, partner or joint venture
for or with the other party or to entitle either party to control in any manner
the conduct of the other party's business.
ARTICLE 11 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto as to
the subject matter of this Agreement and shall supersede any written or oral
discussion or any other agreement between the parties concurrent with or prior
to the date of this Agreement.
ARTICLE 12 GOOD FAITH DISCUSSION.
Both parties shall discuss in good faith and exert best efforts to settle any
disputes amicably as to the matters not provided for herein or any doubt as to
interpretation of the provisions of this Agreement.
ARTICLE 13 DISPUTE RESOLUTION.
Any dispute arising out of or in connection with this Agreement shall be settled
by arbitration, unless such dispute is not resolved in good-faith discussion as
provided in the preceding article. The arbitration shall be held in Tokyo,
Japan, in accordance with the laws of Japan. The award of such arbitration
shall be final and binding upon the parties hereto.
4
EXHIBIT
Statement of Work
MTO Service
-----------
1. Sales and Marketing.
MTO will provide all sales and marketing activities necessary in Japan to
provide merchant acquiring agreements such that all credit card sales
transactions from such merchants will be processed by Asia Pay.
2. Merchant Support.
MTO will provide all MTO merchants with customer service and support on an
ongoing basis to ensure MTO merchants continue to use and upgrade the services
offered by current and future credit card transaction applications provided by
Asia Pay.
3. Minimum Volume Commitment.
MTO will commit to provide a sales volume per month which will be processed in
Japan by Asia Pay. Both parties are to agree upon a volume commitment from MTO
which will be committed to as part of a follow on agreement.
API Service
-----------
Transmit card transaction data for authorization and settlement to GPNet in
accordance with the format provided in GPNet Document.
API will provide MTO with an exclusive merchant sales opportunity for a period
of 12 months which will begin March 1, 2005. During this 12 month period, other
than enquiries received by GP Net and e-Lux Corporation of Japan, API will not
cooperate with and will not accept sales or marketing arrangements for future
credit card transaction processing business on an agency basis from any firm in
Japan other than MTO.
5
IN WITNESS WHEREOF, the parties have executed this Agreement.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
XXXX XXXXX KATSUYA HAYASHI
____________________________________ ____________________________________
Authorized Signature Authorized Signature
Xxxx Xxxxx Katsuya Hayashi
____________________________________ ____________________________________
Name (Typed or Printed) Name (Typed or Printed)
President & CEO President & CEO
____________________________________ ____________________________________
Title Title
6
ADDENDUM
Further to the Agreement entered on August 28, 2004, between Asia-Payment
Systems, Inc. (hereafter "API") and GP Network Corporation (hereafter "GPN"),
both parties hereby agree as follows:
1. API and GPN share the common goal, i.e. to increase volume of
transactions delivered from merchants to acquirers/issuers through
connections established between API and GPN.
2. API shall transmit card transaction data for authorization and
settlement to GPN through an IP gateway connection utilizing the TCP/IP
Link Software Package (hereafter referred to as "CAPS" developed in
accordance with the message format specified by GPN.
3. Both parties acknowledge that:
(a) API is committed to expand the customer base deploying IP
solutions developed by API in Japan, and that API shall transmit card
transaction data to GPN from multiple merchants through the existing
CAPS connection;
(b) GPN shall work closely with API to ensure such card transaction
data is delivered to appropriate card issuers/acquirers in accordance
with local rules and practices.
4. In order to achieve the common goal, GPN shall operate and maintain 1
(one) set of CAPS for exclusive use by API. In addition, GPN shall take
full responsibility of all maintenance and updating of CAPS.
5. In lieu of performing the services associated with CAPS, GPN shall
charge API a monthly service fee as described in the attached fee schedule.
6. GPN shall reserve its rights to negotiate with API for data
transmission fees on the transactions generated by CAPS users that API may
bring in.
7. Expenses related to the use of telecommunication lines, regardless of
type of lines, which access GPN's backbone network shall not be borne by
GPN. The market practice in Japan is that the parties transmitting to a
payment network company's backbone will incur such telecommunication
expenses.
8. Both parties shall resolve any technical issues before the intended
service launch when API brings new merchants who are deploying the API IP
solution. The transaction data from each merchant through API must be
formatted as required by GPN in order for GPN to identify from which
merchant each transaction has originated.
In witness whereof, the parties have executed this addendum.
7
Date:
January 27, 2005
Signed:
Asia Payment Systems Inc.
____________________________________
Xxxx Xxxxx
GP Network Corporation
____________________________________
Xxxxxxx Xxxxx
8
