1
EXHIBIT 10.2
2/20/96
FRAME CONTRACT BANKOMAT 24/AT&T/1/96
This Frame Contract ("Contract") is concluded between
AT&T GLOBAL INFORMATION SOLUTIONS XXXXXX, XX.X.X.X
00-000 Xxxxxxxx
ul.Lektykarska 29
registration - District Court for the capital city of Warsaw
in the XVI Economic Department
under the number RHB 26954
REPRESENTED BY:
XXXXXXXXX XXXXX AND XXXXX XXXXX
hereinafter referred to as "AT&T GIS"
and
BANKOMAT 24, XX.XX.X
00-00 Xxxxxxxxxxxx Xxxxxx
00-000 Xxxxxx Xxxxxx
REPRESENTED BY:
................
hereinafter referred to as "BANKOMAT 24"
AT&T GIS and Bankomat 24 are sometimes referred to individually as a "Party"
and collectively as the "Parties."
2
THIS CONTRACT INCLUDES:
Article 1 Scope of this Contract
Article 2 Prices
Article 3 Payment terms
Article 4 Terms of equipment delivery and transfer of risk
Article 5 Ownership right/transfer of title
Article 6 Installation and transfer of equipment
Article 7 Acceptance of works
Article 8 Guarantee
Article 9 Force majeure
Article 10 Arbitration
Article 11 Non-Disclosure
Article 12 Summary
Exhibit 1 Delivery contract AT&T GIS/Bankomat 24/2/96
Exhibit 2 The agreed configuration and prices for the present contract
Enclosure 1 Reception Protocol
Enclosure 2 Installation Protocol
3
ARTICLE I
SCOPE OF THIS AGREEMENT
Section 1. This Contract covers delivery and installation of 400 Automatic
Teller Machines ("ATMs") in Central and Eastern Europe, together with software
and training supplied by AT&T GIS or it's legal succesors to Bankomat 24 or its
sister or parent company during the period 1996 to 1998. Bankomat 24 shall order
the ATMs during this period by execution of separate delivery contracts in the
form attached as Exhibit 1 ("Delivery Contracts").
Section 2. AT&T GIS acknowledges that the purchaser of ATM's under this
Contract may, at the option of Bankomat 24, be Bankomat 24, any affiliate of
Bankomat 24 or a financing or leasing company (the "Leasing Company") which has
granted financing to Bankomat 24 for the purpose of acquiring ATMs under this
Contract. AT&T GIS agrees to make amendments to the terms of this Contract and
the Delivery Contracts as necessary to comply with the terms required by any
such Leasing Company.
ARTICLE 2
PRICES
Section 1. AT&T GIS ensures Bankomat 24 that it shall apply its catalogue
prices, less a discount that is at least equal to the percentage discount
established for current catalogue prices, attached as Exhibit 2. The prices for
each order of ATMs shall be confirmed in each Delivery Contract. Prices are
established in US dollars.
Section 2. Bankomat 24 shall purchase at least 400 ATMs under this Contract
at the prices defined herein before the end of 1998, provided that the purchase
obligation shall not apply if AT&T GIS fails in fulfilling its contract
obligations or such failure occurs in the quality of the product(s) or delivery
of service(s) which causes a disruption in Bankomat 24 delivery consistent
quality services to its customers. Until Bankomat 24 has purchased 400 ATM's
hereunder or until
4
December 31, 1998, whichever is earlier, Bankomat 24 may not purchase for
installation in Poland any ATM's from another supplier, provided that it may
purchase used ATM's from financial institutions and from other customers of
Bankomat 24 when such customers are making such purchase a conditions of
Bankomat's rendering service to such customers. The restriction on Bankomat 24
from purchasing ATMs from another supplier as provided in the preceding
sentence shall be the sole sanction on Bankomat 24 for any failure of Bankomat
24 to purchase the defined quantity of ATMs hereunder. AT&T GIS acknowledges,
further, that Bankomat 24 may purchase ATMs from IBM under existing
arrangements with IBM or when the technical conditions at an Installation Site,
as hereinafter defined, are such that an AT&T GIS ATM cannot be used at such
Installation Site.
Section 3. For a period of two years commencing on the date of the delivery
of each AT&T GIS ATM hereunder, Bankomat 24 shall not resell such AT&T GIS ATM
at a price which is less than the purchase price of such ATMs purchased by
Bankomat 24 without the prior written approval of AT&T GIS. This provision
shall not restrict Bankomat 24 from reselling ATMs to its affiliates or from
reselling any used non AT&T GIS ATMs.
Section 4. The price of the equipment and software includes delivery to the
site which has been designated by Bankomat 24 as the place of installation of
the ATM (the "Installation Site") not later than two weeks before the planned
delivery, together with packaging, unpacking assembly, short training
regarding the start up of the ATM, testing and insurance up to the time of
transfer of risk as provided in Article 4, Section 5. The price of the
equipment and software does not include any construction or preparation work
required at the Installation Site related to installation of the ATM.
Section 5. Prices for ATMs purchased under this Contract may be revised if
AT&T GIS discontinues manufacture of a model and replaces it with another,
provided that the percentage discount against the list price granted to
Bankomat 24 shall not be less than the percentage applied to the corresponding
model at the time of this contract, as reflected in Exhibit 2.
5
Section 6. The given prices do not include customs duties and VAT tax, which
will be paid by Bankomat 24. AT&T GIS will customs clear ATMs on behalf of
Bankomat 24, under powers of attorney granted by Bankomat 24 to AT&T GIS. The
base of customs and duty fees' calculation will be the contract prices.
Section 7. AT&T GIS may revise its prices if an unforeseeable change occurs
in the legislation of Poland which substantially increases the cost to AT&T GIS
of manufacture of the ATMs. In the event AT&T GIS increases its prices under
this Contract, Bankomat 24 will have the option of either accepting such price
increase or terminating this Contract.
ARTICLE 3
PAYMENT TERMS
Section 1. Bankomat 24 shall pay AT&T GIS as follows:
Section 1.1. Fees for training ordered by Bankomat 24 in addition to start up
training shall be paid in full within 14 days after receiving the commercial
invoice or the completion of the training, whichever is later.
Section 1.2. Twenty per cent (20%) of the purchase price of equipment and
software covered by a Delivery Contract shall be paid within 14 days after the
date on which such Delivery Contract is confirmed, by transfer to the account
identified by AT&T GIS.
Section 1.3. Seventy per cent (70%) of the purchase price of equipment and
software covered by a Delivery Contract shall be paid within 14 days after AT&T
GIS submits to Bankomat 24 the VAT invoice for installed ATMs, which shall occur
after both parties have executed the Reception Protocol for such ATMs, as
hereinafter defined, but not later than six weeks after AT&T GIS has given
Bankomat 24 notice that the ATMs concerned are ready for delivery to their
designated Installation Sites (the "Delivery Notice"). Partial shipments and
payments under a Delivery Contract are permissible.
Section 1.4. The remaining ten per cent (10%) of the purchase price for the
equipment and software shall be paid within 14 days after signing the
Installation Protocol (Enclosure 2) in accordance with Article 7, but not later
than 2 months
6
after the Delivery Notice has been given. This installment shall be payable
within such 2 month period if technical acceptance of the ATM cannot be
completed due to Bankomat 24's fault.
Section 1.5. Amounts due under this Contract shall be paid to the account
identified by AT&T GIS in USD.
Section 2. The parties may, by mutual agreement, notify the payment terms
provided herein.
Section 3. If Bankomat 24 fails to make payment when due, it shall pay a
penalty in the amount of 0,1% of costs of amount unpaid for each day payment is
late.
Section 4. The penalties provided in this Contract are not the exclusive
remedies for default, and the Parties may pursue any other remedies permitted
under general rules of law.
ARTICLE 4
TERMS OF EQUIPMENT DELIVERY AND TRANSFER OF RISK
Section 1. Responsibility for, and the cost of, packaging and marking the
ATMs sold hereunder shall be borne by AT&T GIS.
Section 2. AT&T GIS shall be responsible for insuring the ATMs during the
period up to and including the time of Risk Transfer (as hereinafter defined).
All costs for such insurance costs shall be borne by AT&T.
Section 3. AT&T GIS supervises the correct unloading of goods. Unloading
costs are borne by Bankomat 24.
Section 4. AT&T GIS shall prepare the ATMs for delivery to each
Installation Site (including unpacking, assembly and testing) at its own
assembly platform (the "AT&T GIS Platform"). It shall give a Delivery Notice to
Bankomat 24 when each ATM is ready for delivery to the Installation Site for
which such ATM has been ordered. Bankomat 24 shall then notify AT&T GIS that
the Installation Site is ready and the Parties shall coordinate installation as
described in Article 6. Installation (and final delivery of Bankomat 24) shall
be complete when the ATM has been connected to the Bankomat 24 network, is "on
line," the tests described in Article 6 have been successfully completed and
the Installation
7
Protocol has been executed. In the event that Bankomat 24 has not successfully
installed its communication system prior to completion to that what is described
above and all the necessary tests had been completed, the ATM installation will
have then been named complete after 24 hours of completion of the Installation
Protocol.
Section 5. Transfer of risk of loss of the ATMs to Bankomat 24 ("Risk
Transfer") shall occur after delivery.
ARTICLE 5
OWNERSHIP RIGHT/TRANSFER OF TITLE
SECTION 1. The ATMs shall remain in the ownership of AT&T GIS until full
payment of the purchase price has been made. Upon completion of payment,
ownership will be transferred to Bankomat 24.
SECTION 2. Until the transfer of ownership to AT&T GIS, Bankomat 24 will
treat the ATMs with due care and shall not take any actions which are
inconsistent with AT&T's ownership.
SECTION 3. Know-how connected with the ATMs constitute the intellectual
property of AT&T GIS. This provision shall not affect Bankomat 24's know-how
associated with its ATM network.
ARTICLE 6
INSTALLATION AND TRANSFER OF EQUIPMENT
SECTION 1. Bankomat 24 is responsible for the technical preparation of the
Installation Sites in order to permit scheduled installation, in accordance with
the requirements of AT&T.
SECTION 2. AT&T shall notify Bankomat of its requirements regarding the
Installation Sites immediately after execution of this Contract. The cost of
preparation of the Installation Site shall be borne by Bankomat 24.
8
Section 3. AT&T shall carry out the installation of the equipment within
eight work days from the time Bankomat 24 notifies AT&T GIS that the
Installation Site is ready, provided such sites are, in fact, ready.
Upon completion of the preliminary installation, a test corresponding to AT&T's
standard test program shall be conducted in order to check the technical and
operational functioning of the ATM, and an actual cash withdrawal transaction
will be attempted. The first 10 ATMs must meet this provision. There after an
actual cash withdrawal is not required unless AT&T has a greater than 2
failures with an actual cash withdrawal. With the exception of the first 5 ATMs
Bankomat 24 commits itself to loading the cash for an ATM cash withdrawal test
within 4 hours of completion of installation, provided AT&T meets its
installation deadline. If the results of such tests are not successful, AT&T
GIS shall take actions aiming at correcting the operation of the ATM, and the
tests shall be repeated. When the results of the tests are successful, a
protocol in the form attached as Exhibit 2 (the "Installation Protocol") shall
be and signed by AT&T GIS and Bankomat 24.
Section 4. Completeness of the delivery shall be checked by AT&T GIS and
Bankomat 24.
Section 5. In the event the ATMs do not correspond in any fashion to the
specifications of a Delivery Contract and such failure does not impair the
temporary use of the ATM by Bankomat 24 (such as when components of the ATM do
not correspond to specifications), AT&T GIS will rectify such failure within
four weeks from the date of notification by Bankomat 24 of such failure.
Section 6. Damaged encryption modules shall be repaired, and those
incompatible with the contract specification exchanged by AT&T GIS, within four
weeks from the date Bankomat notifies AT&T GIS of the damage.
9
ARTICLE 7
ACCEPTANCE OF WORKS
Section 1. The Installation Protocol signed by AT&T GIS and Bankomat 24
shall be the basis for stating that the order was fulfilled.
Section 2. The following protocols shall be executed:
- 1 protocol concerning the delivery of the equipment in
accordance with the specification (the "Reception Protocol")
presented in enclosure No. 1.
- 1 protocol concerning the installation of the equipment and
standard software, together with documentation (the
"Installation Protocol").
ARTICLE 8
WARRANTY
AT&T GIS is responsible for delivering the ATMs and software provided by AT&T
in a faultless condition and their proper installation. AT&T GIS grants a
warranty on the ATMs, all ATM sub-assemblies together with software, for a
period of 12 months as provided in this Article. AT&T GIS warrants the proper
operation of the whole system in accordance with conditions and configuration
presented in the orders.
Section 1. The warranty for the purchased equipment is valid from the date
of completion of installation of the ATM, as confirmed in the Installation
Protocol, provided that the guarantee period shall begin not later than two
months after a Delivery Notice was given, if the delay of installation is the
fault of Bankomat 24.
Section 2. If there are defects in the products sold hereunder during the
warranty period, AT&T GIS is obliged to repair or, if required, replace the
products or parts of the products. The warranty also covers replaced parts
during the warranty period. The original parts which have been replaced shall
be returned to AT&T GIS at AT&T GIS's expense.
Section 3. The time for repairing a fault shall not exceed 48 hours from
the moment AT&T GIS is informed of such fault. At the moment of Bankomat 24
having a total of 100 ATMs located in Poland the time for repairing a fault
shall not
10
exceed 24 hours. Four hours after the notification, AT&T GIS shall present
Bankomat 24 information on the nature of the fault, the action that will be
taken to repair the fault and the amount of time necessary for the repair (so
called reaction time). Notice of any fault shall be submitted in a written form
(fax) by the ATM system operator in the Head Office of Bankomat 24, as
identified to AT&T GIS from time to time. Notifications concerning faults shall
be accepted from 8:00 AM to 22:00 PM. Notifications given after 22:00 shall be
treated as a notification accepted at 8:00 AM on the following day. Confirmation
of the acceptance of the given notification shall be sent to the Head Office of
Bankomat 24 no later than 1 hour after notification is sent by Bankomat 24. A
response concerning notification regarding an error in Bankomat 24's systems
software shall be given within one week of receipt of notification. Such
response shall contain an indication of the amount of time which will be
necessary to rectify the problem.
Section 4. The warranty does not cover faults resulting from improper use
or maintenance of ATMs.
Section 5. The warranty shall not cover faults that are caused by the use
of materials that are not in conformity with AT&T GIS standards. Use of AT&T
GIS materials is recommended, but are not required, as long as the materials
used comply with AT&T GIS standards. AT&T GIS shall deliver a list of
recommended exploitation materials when this Contract is signed.
Section 6. AT&T GIS does not bear responsibility if improper or faulty
commands are sent to the ATM from Bankomat 24 including: state tables, FIT
tables, screens and configuration data. AT&T GIS does not bear responsibility
for interference with and modification of the ATM S4 system and communication
software carried out by Bankomat 24 in a fashion that is not in conformity with
procedures described in AT&T documentation, including the following:
* modification of graphic screens (PCX standard)
* adding new graphic screens
* change/ introduction of new sets of marks or letters
* change in the communication protocol
* change in parameters of the communication protocol
11
The preceding provision will supply when changes in the base application were
conducted by Bankomat 24.
Section 7. Notifications concerning guarantee repairs should be submitted by
telex or fax to the following address:
AT&T GIS Polska Sp. z.o.o.
Warsaw, ul Lektykarska 29
tel. 330449, fax 335871
Section 8. AT&T GIS is obliged to keep a reserve of spare parts and necessary
materials for maintenance and repair of the ATMs, for a period of seven years
from the date of delivery (such sale to be made according to catalogue prices).
Article 9
FORCE MAJEURE
Section 1. In the case of occurrence of force majeure, the time for performance
provided under this Contract shall be extended by the duration of the force
majeure condition.
Section 2. If the force majeure condition continues for a period longer than
six months, either Party may terminate this Contract. The Parties may, by mutual
agreement, extend or modify this Contract.
Section 3. The Parties shall immediately inform each other by telex or in a
written form about the occurrence of a force majeure condition.
Section 4. All events that are impossible to foresee or, if foreseeable, which
are beyond their influence, and which in full or part make fulfillment of
Contract terms impossible or unduly burdensome shall be treated as force
majeure. Examples of force majeure include, but are not limited to natural
disasters, fire, flood, explosions, strikes, disturbances or war.
12
ARTICLE 10
ARBITRATION COURT
Section 1. If any disputes arise in connection with this Contract, the
Parties shall attempt to settle the dispute out of court. If resolution of the
dispute is not possible, the dispute shall be submitted to and finally settled
by the Polish Arbitration Court of the National Chamber of Commerce.
Section 2. If either of the Parties makes a demand for arbitration, such
Party shall inform the other Party of such demand by registered letter,
notifying the other Party of the identity of the arbitrator chosen by it. The
other party shall within two weeks from the date of receipt of such letter,
appoint an arbitrator on its part. The Arbitrators of both Parties shall, in a
term of one month from the date of choosing the second arbitrator, appoint a
third arbitrator, who shall be the chairman of the arbitration panel.
Section 3. If Parties do not fulfil their obligation to appoint
arbitrators as provided above or if the appointed arbitrators are not to agree
on the chairman in the required period, the Chairman of the Arbitration Court
of the National Chamber of Commerce shall appoint, at the demand of one of the
Parties, the arbitrator and/or Chairman. The arbitration shall be conducted in
accordance with the Arbitration Rules and Regulations of the Commission of the
International Commerce Law of the United Nations from December 15, 1976
(UNCITRAL).
Section 4. The application to the Arbitration Court and the decision of
the Arbitration Court shall be in the Polish language.
Section 5. The arbitration take place in Warsaw and Polish law shall be
used in the interpretation of this Contract and the settlement of disputes. The
decision of the Arbitration Court is final and binding on both Parties and is
not subject to appeal.
ARTICLE 11
NON-DISCLOSURE
Bankomat 24 and AT&T GIS agree not to disclose to third parties any information
relating to the content of their negotiations and present Contract.
13
ARTICLE 12
MISCELLANEOUS
Section 1. In order to be valid, changes, supplements and modifications of
the Contract shall be in written form and signed by authorized representatives
of both parties.
Section 2. This Contract has been prepared in two identical copies.
Section 3. The term of this Contract can be extended by mutual agreement of
the Parties.
AT&T GIS Polska Sp. z o. o. Bankomat 24
Date: 96.02.20 Date: 96.02.20
/s/ Xxxxxxxxx Xxxxx /s/ Xxxxxx X. Depenbush
----------------------- --------------------------
Xxxxxxxxx Xxxxx Xxxxxx X. Depenbush
General Manager, Operations Director
AT&T GIS Polska Sp. z o. o. Bankomat 24 Sp z o. o.
Bankomat 24 Sp z o. o.
Al, Xxxxxxxxxxxxxx 00/00
XXX xxxxx 0000
00-000 Xxxxxxxx
Tel.: 000-00-00/71
N-P, 000-00-00-000
/s/ Xxxxx Xxxxx
------------------
Xxxxx Xxxxx
Sales Director
AT&T GIS Polska Sp. z o. o. /.............../
14
EXHIBIT NO 1 TO THE FRAME CONTRACT BANKOMAT 24/AT&T GIS/1/96
THE DELIVERY CONTRACT BANKOMAT 24/AT&T GIS 2/96
15
DELIVERY CONTRACT BANKOMAT 24/AT&T GIS/2/96
concluded between
the company
AT&T GLOBAL INFORMATION SOLUTIONS POLSKA, Sp. z o.o.
01-687 Xxxxxxxx
xx. Xxxxxxxxxxx 00
registration - District Court for the capital city of Warsaw
in the XVI Economic Department
under the number RHB 26954
represented by:
XXXXXXXXX XXXXX AND XXXXX XXXXX
later called ,,AT&T GIS''
and
BANKOMAT 24..
00-00 Xxxxxxxxxxxxx Xxxxxx
00-000 Xxxxxx Xxxxxx
represented by:
later called ,,BANKOMAT 24''
2
16
The contract includes:
Article 1 Scope of the contract
Article 2 Prices
Article 3 Time and place of delivery
Article 4 Documentation
Article 5 Non-Disclosure
Article 6 Summary
Enclosures:
Enclosure No. 1 Order Specification.
Enclosure No. 2 List of Documentation.
17
ARTICLE 1
SCOPE OF THE CONTRACT
The present contract covers delivery and installation of 50 Automated Teller
Machines (ATM), together with software and training supplied by the firm AT&T
GIS for Bankomat 24, in accordance with orders being integral part of the
present contract. This contract is a part of the Frame Contract Bankomat
24/AT&T GIS/1/96 between the parties.
ARTICLE 2
PRICES
section 1. AT&T GIS ensures Bankomat 24 that it shall only use prices from the
Exhibit 2 to the Frame Contract. Prices are defined in USD (USA dollars).
section 2. The present contract covers the delivery of 50 AT&T GIS ATMs,
together with documentation, software and training. The total value of the
contract amounts to: 1 175 670,- USD (SAY: ONE MILLION ONE HUNDRED SEVENTY FIVE
THOUSAND SIX HUNDRED SEVENTY DOLLARS)
section 3. Prices, with each configuration given separately, are shown in the
Exhibit 2 to the Frame Contract.
section 4. The model mix and the description of other services for the above
stated price is given in the Enclosure No 1 to the present Contract. Bankomat
24 has the right to change the model mix, which will have an influence on
Contract Price in a term of not later than two months before planned delivery
(except the change to AT&T 5688).
section 5. The 20% prepayment for the present contract shall be paid not later
than 30 days after signature. All other payment terms and conditions written in
the frame contract remain valid for this contract.
4
18
ARTICLE 3
TIME AND PLACE OF DELIVERY
Section 1. AT&T GIS commits itself to start deliveries to Bankomat 24 ATMs
mentioned in article 1, in a term of 3 months from the day of signing the
present contract.
Section 2. The equipment and software specified in the present order shall
be delivered to places presented by Bankomat 24. Bankomat 24 shall present
addresses where the ATMs shall be installed not later than 2 weeks before the
planned delivery.
ARTICLE 4
DOCUMENTATION
Section 1. AT&T GIS shall deliver 2 sets of the necessary equipment and
software documentation to Bankomat 24. The list of documentation is included
in the Enclosure No 2
Section 2. The system documentation should be delivered not later than
with the equipment.
ARTICLE 5
NON-DISCLOSURE
Bankomat 24 and AT&T GIS agree not to disclose to third parties any information
relating to the content of their negotiations and present contract.
19
ARTICLE 6
SUMMARY
Section 1. In order to be valid, changes, supplementations and
modifications of the contract require a written form and signatures by
authorised representatives of both parties.
Section 2. The contract has been prepared in two identical copies.
Section 3. The validity of the contract can be prolonged on the basis of
an agreement between the agreeing parties.
AT&T GIS Polska Sp. z o.o. Bankomat 24
Date: 96.02.20 Date: 96.02.20
/s/ XXXXXXXXX XXXXX /s/ XXXXXX X. DEPENBUSH
--------------------------- -------------------------
Xxxxxxxxx Xxxxx Xxxxxx X. Depenbush
General Manager, Operations Director
AT&T GIS Polska Sp. z o.o. Bankomat 24 Sp. z o.o.
BANKOMAT 24 Sp. z o.o.
/s/ XXXXX XXXXX Al. Jerozolimskle 65/79
--------------------------- LIM suite 1218
Xxxxx Xxxxx 00-000 Xxxxxxxx
Tel.: 000-00-00/71
Sales Director NIP: 000-00-00-000
AT&T GIS Polska Sp. z o.o. / /
-----------------------
