CREDIT CARD TRANSACTION PROCESSING
AND SETTLEMENT SERVICES AGREEMENT
================================================================================
This "Agreement" is entered into by and between:
1. ASIA PAYMENTS, INC. ("API" or "Company") a United States corporation
incorporated in the State of Delaware with its' principal office
located at: 000 X. Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx,
X.X.X., and
2. E-CHARGE USA ("e-Charge" or "Company"), a United States corporation
with its' principle office located at: 000 Xxx Xxxxxx, Xxxxxxxx, XX,
X.X.X.
API and Customer are referred to individually as the "party" or collectively as
the "parties."
The "Effective Date" of this Agreement is ____________________________,
2004.
RECITALS
A. API is in the business of developing computer system and software
applications that enable acceptance, processing, clearing, and settlement
of credit card payment transactions (the "Payment Processing System"). API
provides Payment Processing Systems to merchants and financial institutions
throughout Asia.
B. API is a wholly owned subsidiary of Asia Payment Systems, Inc., (a public
company in good standing with and reporting to the Securities Exchange
Commission in New York, New York under the NASDAQ OTC Bulletin Board market
trading symbol "APYM").
C. Customer is a merchant whose business is in good standing.
D. Customer desires to enter into an agreement with API for API to provide
Payment Processing Services to Customer. This Agreement sets out the terms
and conditions of the agreements of the parties.
CONSIDERATION.
In consideration of the mutual covenants and conditions contained in the
Agreement, the Parties agree as follows:
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Credit Card Transaction Processing and Settlement Services Agreement Page 1
SECTION 1: DEFINITIONS
"Acquiring Bank" means Chase Merchant Services acquiring account # 451222652997.
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"API Hub" means a physical location established by API in Honolulu, Hawaii,
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U.S.A. that will comprise premises, equipment, software and other necessary
elements for the sole purpose of performing Customer Transactions and related
obligations under this Agreement.
"Business Day" means Monday (0900 to 1700) to Saturday (0900 to 1300) but
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excluding bank holidays, public holidays, and typhoon affected days (where the
official signal number 8 is hoisted prior to 0900) in Hong Kong.
"API System" means API's proprietary operating systems and databases which
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enable acceptance and settlement of transactions involving Credit Cards and
provide a range of customer report data including, but not limited to, customer
and merchant transaction histories.
"Charge Back" means any refund (whether charge amounts, penalties, or fees) made
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to a customer of an Acquiring Bank after due inquiry.
"Charge Back Fees" The cost of processing a Charge Back as set out in SCHEDULE
----------------
1-FEES.
"Credit Cards" means any Visa, MasterCard, AMEX, JCB, Domestic China UnionPay,
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Diner's Club, Discover, or local proprietary Private Label card.
"Credit Card Issuers" means any bank or other financial institution that issues
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the Credit Cards.
"Credit Card Transaction" means any transaction which generates Credit Card
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Transaction Data, and includes any transaction in which one party uses a credit
card to purchase goods or services as described on the printed or handwritten
sales record.
"Credit CardTransaction Data" means all sales capture and related transaction
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data, including each Authorization, "Authorization Only," Authorization and
Sales Capture, Sales Capture, Disbursement, Refund, Credit, Charge Back, or Void
transaction
"Customer Account" means one or more accounts established and maintained between
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Customer and Acquiring Bank for the settlement of Credit Card Transactions, in
such currencies as Customer may specify in writing.
"Customer Network" means the telecommunications and data network used by
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Customer to transport Credit Card Transaction Data to the API Hub.
"Services" means the services identified in this Agreement that API is obligated
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to perform for Customer.
"Service Fees" means the fees to be paid to API by Customer as set out in
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SCHEDULE 1-FEES.
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Credit Card Transaction Processing and Settlement Services Agreement Page 2
"Third Party Transaction Fees" means the customer processing fee and all fees
----------------------------
associated with processing U.S. Dollars, YEN, or other currency transactions
that Customer would otherwise be liable to pay to third parties, including but
not limited to, Acquiring Banks.
SECTION 2: OBLIGATIONS OF API
During the Term of this Agreement and any period of renewal or extension to this
Agreement, API agrees to perform the following:
2.01 Services. API shall perform the following Services:
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a. Maintain and administer the Chase Merchant Services account
(#451222652997) which is currently owned by e-Charge USA for Customer.
b. Inform Customer in writing (which may include by facsimile or email)
the locations to which Credit Card Transaction Data must be
transmitted, any necessary passwords, the format of the data and
giving Customer such information as it may require or reasonably
request to process Credit Card Transactions.
c. Process the Customer's Credit Card Transactions in the following
manner:
1. API shall review the accuracy of the Credit Card Transaction
Data.
2. API shall timely process all Credit Card Transaction Data in such
currencies as agreed between the parties.
3. API shall forward all Credit Card Transaction Data to the
Acquiring Bank(s) established by API for customer or designated
by Customer for settlement and payment.
d. Remit all transactions to Customer within five (5) business days after
receipt by API of the first settlement notices from the Acquiring Bank
for Customer Transactions, after deducting any Service Fees, Third
Party Transaction Fees, and Charge Back Fees.
e. Periodically provide customer reports. Reports may include:
1. Customer and merchant transaction histories.
2. Reports issued by an Acquiring Bank including, but not limited
to: (a) Credit Card Accounts; and (b) Charge Backs.
f. In relation to Charge Backs, API shall provide to Customer written
notice (which may include by facsimile or email) of any Charge Backs,
the reason for the Charge Back and details of all corresponding
suspense accounts and other relevant information (as they become
available) from an Acquiring Bank. API
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Credit Card Transaction Processing and Settlement Services Agreement Page 3
may require a chargeback reserve should the Acquiring Bank providing
such services so require or should the number of charge backs become
unreasonably excessive and shall in such case provide copies of
correspondence from the Acquiring Banks that request such a reserve.
g. Periodically (at least once per year) negotiate in good faith to
minimize Third Party Transaction Fees for the benefit of Customer.
2.02 Service Level Commitment. API Services shall, during any calendar month,
------------------------
shall be available be no less than ninety-eight percent (98%) of the time
(based on 24 hours per calendar day), save for scheduled maintenance or
scheduled downtime ("Maintenance"), or failure of any of Customer's
equipment that is not due to any intentional or negligent act or omission.
Notice of any Maintenance will be provided in writing (which may include
facsimile or email) to Customer, at least seven (7) calendar days prior to
the contemplated event. Maintenance will be carried out and completed using
all reasonable haste.
2.03 Pay Own Costs to Comply With this Agreement. Company will be liable for all
-------------------------------------------
of its own costs and expenses as may be necessary to incur from time to
time in order to comply with its obligations in this Agreement.
SECTION 3: OBLIGATIONS OF CUSTOMER
During the Term of this Agreement and any period of renewal or extension to this
Agreement, Customer agrees to do the following:
3.01 Customer Network. With respect to the Customer Network, Customer agrees to:
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a. Install a fully functional Customer Network.
b. Maintain the Customer Network to provide API with all Credit Card
Transaction Data related to all Customer's Credit Card Transactions.
3.02 Communicate Transaction Data. Customer agrees to transmit all Credit Card
----------------------------
Transaction Data to the API Hub in a form acceptable to API by way of the
Customer Network in a timely manner.
3.03 Processing Instructions. Customer will provide written instructions to API
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as to which Credit Card Transactions are to be processed by API and in
which currencies and in which jurisdictions as Customer may require.
3.04 Payment of all Fees. Customer agrees to pay:
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a. All Implementation Fees, Service Fees, Charge Back Fees, Other Service
Fees, and Taxes (as set out in SCHEDULE 1-FEES) when due.
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Credit Card Transaction Processing and Settlement Services Agreement Page 4
b. Customer agrees that API may deduct such fees from any amounts due to
Customer. Further, interest of twelve percent (12%) shall accrue on
all unpaid fees not paid on or before the due date.
3.05 Payment of all Charge Backs. Customer agrees to pay:
---------------------------
a. all Charge Backs when due.
b. all other fees or expenses imposed by any bank or other third party
related to any Charge Back.
3.06 Preservation of Records. Customer must securely preserve for not less than
-----------------------
one year: (a) an original paper copy or microfilm copy of each and every
credit card sales transaction recording customer signature and authorizing
Customer to process a corresponding Credit Card Transaction; and (b) copies
of any original documents provided by Customer to API pursuant to a Credit
Card Transaction.
3.07 Pay Own Costs to Comply With this Agreement. Customer will be liable for
-------------------------------------------
all of its own costs and expenses as may be necessary to incur from time to
time in order to comply with its obligations in this Agreement.
SECTION 4: TERM AND TERMINATION
4.01 Initial Term of this Agreement. The term of this Agreement shall be for a
------------------------------
period of One (1) YEAR (the "Initial Term") from the Effective Date, unless
terminated sooner for a reason of Default, as described below, or by
agreement of the Parties.
4.02 Automatic Renewal. After the Initial Term, the term of this Agreement will
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be automatically extended and continue for continuous successive terms of
one (1) year (individually referred to as "Successive Term"), until either
Party gives the other written notice of termination.
a. Unless otherwise agreed by the Parties in writing, the terms of the
Agreement shall remain the same in each Successive Term.
b. Any notice of termination must be provided at least ninety (90) days
prior to the end of the Initial Term or then current Successive Term.
4.03 Termination By Agreement. The Parties agree that this Agreement may be
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terminated at any time by mutual written agreement.
4.04 Termination for Default. In the event of a breach of any obligation of
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either Party under this Agreement (an event of "Default"), the Non
Defaulting party shall notify the Defaulting party in writing of the
specific nature of the Default and shall request that the Default be cured.
If Defaulting party does not cure the Default within Thirty (30) days of
the notice, the Non Defaulting party may immediately terminate this
Agreement.
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Credit Card Transaction Processing and Settlement Services Agreement Page 5
a. During any period of default related to payment of Fees by Customer,
API reserves the right to terminate Services until the Default is
cured to the API's satisfaction.
4.05 Automatic Termination. This Agreement will automatically be terminated on
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any of the following conditions:
a. Bankruptcy. In the event that either party becomes insolvent or is
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declared bankrupt, or makes an assignment for the benefit of
creditors, or in the event that a receiver is appointed or any
proceeding is demanded by, for or against either party under any
provisions of the federal Bankruptcy Code.
4.06 Effect of Termination. Should the Agreement terminate for any reason,
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Customer agrees to immediately discontinue using API's Services and return
any of API's property to API. Further, Customer agrees to pay API all
amounts still due for Services provided Customer.
SECTION 5: INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
5.01 Intellectual Property. For the purposes of the Agreement, "Intellectual
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Property" of the parties includes all patents, trademarks, service marks,
copyrights, and other proprietary technical information associated with the
party or its products or services, whether now existing or created in the
future.
5.02 Ownership of Intellectual Property. All Intellectual Property of either
-----------------------------------
party which is provided to the other party in the course of performing any
obligations under this Agreement shall continue to belong to the disclosing
party.
5.03 Confidential Information. For the purposes of the Agreement, "Confidential
------------------------
Information" means all proprietary, secret, confidential information, or
data relating to Company, its operations, employees, services or customers
that is disclosed in writing, orally, or by drawing or other form.
a. Terms of Nondisclosure. Customer acknowledges that Customer may
----------------------
receive Confidential Information in connection with the Agreement and
the performance of Services. Customer agrees:
1. to maintain Confidential Information in strict confidence and not
to disclose any Confidential Information to any third party
during the term of this Agreement or anytime after the
termination of this Agreement.
2. Customer will not use any Confidential Information for any
purpose other than for the performance of the rights and
obligations under this Agreement during the term of this
Agreement, without the prior written consent of the Company.
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Credit Card Transaction Processing and Settlement Services Agreement Page 6
3. that Confidential Information shall remain the sole property of
Company and that it will take all reasonable precautions to
prevent any unauthorized disclosure of Confidential Information
by its employees. No license shall be granted by the disclosing
party to the receiving party with respect to Confidential
Information disclosed unless otherwise expressly provided in this
Agreement.
4. to return copies, notes or other materials in other tangible
forms containing any portion of the Confidential Information upon
request by the Company.
5. if requested, to secure a signed confidentiality agreement from
any person under Customer's control who comes in contact with
such Confidential Information.
b. Exclusions. Customer shall have no obligation concerning any portion
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of Confidential Information that:
1. was known to Customer before the receipt of such Confidential
Information from the Company;
2. was lawfully obtained by Customer from sources other than Company
under no obligation of confidentiality;
3. lawfully was or becomes publicly known or available prior to
disclosure other than as a result of an act or failure to act by
Customer; or
4. is required to be disclosed by Customer by applicable law or
legal process, provided however, that Customer shall give Company
prior notice of any such disclosures sufficiently in advance to
enable Company to obtain a protective order and shall limit
disclosure to only the information required to be disclosed by
law.
c. Publicity. Neither party shall disclose any of the specific terms of
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this Agreement to any third party without the prior written consent of
the other party, which consent shall not be withheld unreasonably
5.04 Information Remains the Property of Company. Any specifications, drawings,
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sketches, models, samples, tools, computer or other apparatus programs or
codes, technical or business information or data, field trial results
and/or reports, written, oral or otherwise (collectively "Information")
furnished to Customer under the Agreement or in contemplation of the
Agreement, shall remain the property of Company. All copies of the
Information, in written, graphic or other tangible form, shall be returned
to Company at Company's request.
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Credit Card Transaction Processing and Settlement Services Agreement Page 7
5.05 Preservation of Marks. Nothing in this Agreement creates in a party any
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intellectual property rights in the Marks of the other party. For purposes
of this Agreement, the capitalized term "Marks" means corporate or trade
names, logos, trademarks, patents, copyrights, service marks, or other
symbols that serve to identify and distinguish a party or its products from
its competitors.
SECTION 6: LIMITATION OF LIABILITY, DISPUTE RESOLUTION, & GOVERNING LAW
6.01 Indemnification. Each party ("First Party") shall indemnify and hold the
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other party ("Second Party") harmless from: any (1) claims by, and (2)
damages awarded to, any third party for any alleged acts, omission, or
breach of the First Party, including any claim for infringement on the
third party's intellectual property rights. The First Party also agrees to
pay all costs (including without limitation attorneys fees, court costs,
and costs of investigation) reasonably incurred by the Second Party in
defending such claim.
6.02 Limitation of Liability. The liability of Company shall be limited to, at
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the option of Company, performance of any Services which were not performed
or the refunding of any money paid to Company for performance of such
Services. If Company is liable to Customer for any matter arising out of or
relating to the negotiation, formation, performance or non-performance of
this Agreement, whether based on an action or claim in contract, equity,
negligence, tort, or otherwise, Company shall not be liable for any damages
sustained by Customer exceeding the total amounts paid to Company by
Customer for Services under this Agreement.
6.03 Dispute Resolution. Each party will make reasonable best efforts to
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amicably resolve any disputes or claims under this Agreement among the
parties. The parties shall attempt in good faith to resolve any dispute
between them promptly by negotiation between the parties' executives.
Either party may send the other a request to negotiate.
a. If negotiation does not result in resolution within thirty (30) days
from the request to negotiate, the parties agree to submit the dispute
to nonbinding mediation. Either party may make a request for
mediation. The mediation must occur within ninety (90) days of the
request for mediation.
b. Should any dispute not be resolved by mediation within the time period
set out for mediation (whether a mediation occurs or not), then either
party may file a petition for arbitration. The arbitration must occur
within one hundred eighty (180) days of the request for mediation.
Arbitration shall be conducted by a single arbitrator and be binding
on all parties to the arbitration. The rules for arbitration shall be
governed by the procedures set out by the American Arbitration
Association. Judgment upon any award rendered by the arbitrator may be
entered by any court having jurisdiction over the parties.
c. Any mediator or arbitrator shall be selected by mutual agreement of
the parties, and the cost charged by any mediator or arbitrator shall
be divided equally among the parties. Any arbitrator must be a member
of the American Arbitration
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Credit Card Transaction Processing and Settlement Services Agreement Page 8
Association. Any mediation or arbitration shall take place in the
State of Hawaii, U.S.A. and shall be conducted in English.
d. These procedures will apply to any and all disputes that may arise
between the parties or between their respective principals, officers,
directors, employees, agents, subsidiaries, parents, predecessors,
successors, assigns, heirs or related entities.
6.04 Governing Law. This Agreement will be interpreted and enforced in
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accordance with the laws of the United States of America. Venue for any
claims shall be the State of Hawaii, U.S.A.
SECTION 7: NOTICES
7.01 Notices. Any notice or request required or permitted to be given to any
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party shall be given in writing and shall be: (a) hand delivered or (b)
conveyed by courier, such as DHL, Federal Express, or United Parcel
Service, or to the party. The address for delivery of any notice shall be
the address for the party in this Agreement, or at such other address as
such party may designate by written notice to the other party to this
Agreement given in conformity with this paragraph. Notice shall be
effective the date it is deposited in the mail or given to a third party to
deliver to the recipient, whether or not the recipient signs for or accepts
such notice.
SECTION 8: GENERAL PROVISIONS
8.01 Independent Relationship Between the Parties. The relationship created
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under this Agreement is strictly limited to the relationship of buyer and
seller for the sale of services. This Agreement does not create any agency,
franchise, joint venture, partnership or other similar legal relationship
between the parties.
8.02 Authorization. The individuals executing this Agreement warrant that they
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have the authority to execute this Agreement as authorized agents and with
full authority of any entity which such individual represents, and that the
execution of this Agreement does not violate any applicable bylaws,
regulations, operating agreement, rules or other resolution of such entity.
8.03 Incorporation of Related Documents. All exhibits, schedules, attachments
----------------------------------
(including legal descriptions), and other instruments referred to in this
Agreement are incorporated into this Agreement as completely as if they
were copied verbatim into the body of it.
8.04 Complete Agreement. This instrument contains all of the agreements,
------------------
representations, and conditions made between the parties. No
representation, promise, inducement, or statement of intention has been
made by or on behalf of either party which is not set forth in this
Agreement. Neither this Agreement nor any of its provisions may be amended
or modified other than by an instrument in writing signed by the parties.
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Credit Card Transaction Processing and Settlement Services Agreement Page 9
8.05 Further Assurances. Each party to this Agreement agrees to perform any
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further acts and to execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
8.06 Assignment,Binding Effect on Successors And Assigns. The parties shall not
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assign or transfer this Agreement, in whole or in part, or any right or
obligation under this Agreement to any third party without the prior
written consent of the other party. Subject to the foregoing, this
Agreement and the parties' rights and obligations shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns.
8.07 Divisible Agreement. If any section or clause is found invalid or
--------------------
unenforceable, the remainder of this Agreement shall be enforceable.
8.08 Binding Effect - Successors And Assigns. Each and every one of the terms,
---------------------------------------
conditions, and covenants contained in this Agreement shall extend to, be
binding upon, and inure to the benefit of the parties and their respective,
successors, and assigns.
8.09 No Third Party Beneficiaries. Neither this Agreement nor any other
----------------------------
agreement contemplated in this Agreement shall be deemed to confer upon any
person not a party to this Agreement any rights or remedies contained in
this Agreement.
8.10 Limitation of Liability. Neither party shall be responsible for any debt,
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loss, contract, or other obligation of the other party (including any
obligation to any taxing authority), except as provided in this Agreement.
8.11 Force Majeure. Either party shall not be liable to the other for failure to
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perform any part of this Agreement, except for any due payment obligation,
when such failure is due to fire, flood, strikes, labour troubles or other
industrial disturbances, inevitable accidents, war (declared or
undeclared), embargoes, blockages, legal restrictions, governmental
regulations or orders, riots, insurrections, or any cause beyond the
control of such party ("Event"). The party so prevented from performance
shall, however, use diligent efforts to resume performance.
If any Event lasts for more than thirty (30) calendar days from the date of
its occurrence, and that event prevents either party from performing all or
part of its material obligations during that period, either party may
terminate this Agreement by giving not less than fourteen (14) days notice
to the other party.
8.12 Failure to Enforce Not Waiver. The failure of a party at any time or from
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time to time to require performance of any of another party's obligations
under this Agreement shall in no manner affect the party's right to enforce
any provision of this Agreement at a subsequent time, or constitute a
waiver by the party of any right arising out of any subsequent breach.
8.13 Drafting. The normal rule of construction to the effect that any
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ambiguities are to be
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Credit Card Transaction Processing and Settlement Services Agreement Page 10
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any exhibits or amendments to the
Agreement.
8.14 Counterparts / Acceptance By Electronic Delivery. This Agreement may be
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executed in multiple counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument. The parties agree that original signatures will not be required
to effectuate the terms of this Agreement. This Agreement may be executed
and the terms of which fully accepted by either party by delivering an
electronic form of this Agreement to the other party and indicating in the
body (e.g. by signing) of the electronic delivery format that the enclosed
Agreement has been accepted by the delivering party. Examples of electronic
delivery include but are not limited to: facsimile transmission (but do not
include e-mail delivery). A copy of this Agreement has the same force and
effect as the original.
SIGNED on ___________________________________________, 2004.
________________________________
e-Charge USA Asia Payments, Inc.
By: By:
________________________________ ____________________________________
Name: Name: Xxxx Xxxxx
Title: Title: President & CEO
Address: Address:
e-Charge USA Asia Payment Systems, Inc.
000 Xxx Xxxxxx 000 0xx Xxxxxx #0000
Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Fax: Fax: 0-000-000-0000
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Credit Card Transaction Processing and Settlement Services Agreement Page 11
SCHEDULE 1-SERVICE FEES
During the Term of this Agreement and any period of renewal or extension to this
Agreement, Customer agrees to pay API, in U.S. Dollars ("USD") unless otherwise
specified, the following:
1. Initial Implementation Fee. Customer agrees to pay API USD $ 0.00
-------------------------- ---------------
to establish an API Hub for Customer's benefit. This fee shall be
deemed earned if the system has been successfully tested by procession
Credit Card Transaction Data at one or more locations.
2. Service Fees. The following which are collectively referred to as "Service
------------
Fees:"
a. Per Transaction Fee. Customer agrees to pay API USD $0.50 cents per
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transaction for each Credit Card Transaction sent to API by or related
to Customer.
b. Percentage of Gross Sales. Customer agrees to pay API half of one
-------------------------
percent (0.50%) of daily gross credit card sales processed by API for
Customer into the Chase Merchant Services credit card merchant account
(#451222652997).
3. Charge Back Fees. The greater of the actual cost to API or USD $25.00 per
----------------
occurrence, plus any related Credit Card Transaction fees.
4. Other Service Fees. Customer agrees to pay API for all other services
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provided by API, apart from the Services set out in this Agreement. All
other services will be charged at the rate of USD $150.00 per hour. In
addition, the other services fees include all out of pocket expenses
incurred by API.
a. Out of Pocket Expenses. Additionally, Customer agrees to reimburse API
----------------------
for any travel and out of pocket expenses reasonably incurred by API
or API personnel, unless otherwise agreed in writing by the parties.
Other services include: hosting, customisation or additional
development work, ongoing maintenance and training. In API will:
1. obtain Customer's prior written approval for all individual
travel expenses exceeding USD $2,000.00 and individual out of
pocket expenses exceeding USD $150.00;
2. incur such expenses in good faith in the course of API performing
its obligations under this Agreement; and
3. furnish original documentary evidence, such as receipts, with any
corresponding invoice.
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Credit Card Transaction Processing and Settlement Services Agreement Page 12
Upon receiving a written request for "Other Services" from Customer,
Company will return an estimate of charges along with relevant information.
Customer will agree to "Other Services estimate and will sign such estimate
and return to Company prior to Company undertaking any such services.
5. Taxes. Additionally, Customer agrees to pay all sales taxes, value added
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taxes and goods and services taxes assessed by any governmental entity for
charges related to API's services.
6. Application of Services Fees. The Service Fees will apply equally for
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Yen-to-Yen transactions as well as Yen-to-USD transactions or any other
currency-to-currency transaction.
SIGNED on ___________________________________________, 2004.
________________________________ _______________________________
e-Charge USA Asia Payments, Inc.
By: By:
________________________________ ____________________________________
Name: ______________________ Name: ________________________
Title: ______________________ Title: ________________________
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Credit Card Transaction Processing and Settlement Services Agreement Page 13
