10.10
Translation: PMH/14.02.1997
LEASING, SERVICING, PROCESSING, SOFTWARE
LICENSE AND SOFTWARE SERVICE CONTRACT
FOR AUTOMATIC TELLER MACHINES ("ATMs")
Between
Service Xxxx XxxX & Xx. XX
Xxxxxxx-Xxxxx-Xxxx 00-00
00000 Xxxxxxx
(hereinafter called "Bank")
and
Euronet Services GmbH, a limited liability company in formation
Xxxxxx-Xxxxxxxxx-Xxxxxxx-Xxx. 00
00000 Xxxxxxxxx
(hereinafter refereed to as the "Lessor")
THIS AGREEMENT is made on this 10th day of January, 1997
Translation: PMH/14.02.1997 2
Between
1. The Service GmbH & Co. KG, a German credit institution, organized as a
limited partnership, registered in the commercial register of the lower
court of Cologne under registration number HRA 13562, having its
headquarters at Xxxxxxx-Xxxxx-Xxxx 00-00, 00000 Xxxxxxx, Xxxxxxx
Xxxxxxxx of Germany (hereinafter referred to as the "Bank")
and
2. Euronet Services GmbH, a German limited liability company in formation,
having its headquarters at Xxxxxx-Xxxxxxxxx-Xxxxxxx-Xxx. 00, 00000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx of Germany (hereinafter referred to as the
"Lessor")
NOW, THEREFORE, the Parties hereto agree to conclude the following leasing,
servicing, processing, software license and software service agreement in
connection with automatic teller machines (hereinafter referred to as the
"Agreement"):
RECITALS
(A) The Bank is a credit institution and possesses a full banking license.
It has an extended network of branches and self-service centers,
through which it lends money (as defined in Article 1, paragraph 1,
subparagraph 2, line 2 of the law governing credit institutions
("KWG")) to its customers and customers of other credit institutions.
In addition to engaging in other forms of lending, the Bank lends money
by means of making cash payments through ATMs which accept ec, debit
and credit cards issued by the Bank or other credit institutions.
Translation: PMH/14.02.1997 3
(B) The Lessor operates a business in which it leases ATMs to credit
institutions and renders, as a technical service provider, data
processing services in connection with ATMs. The parties hereby
recognize that the Bank shall bear any credit risk arising out of the
distribution of cash to ATM's users. The bank is the operator of the
money machines. The Lessor is hereby prohibited from using or causing to
be used any and all advertising or labeling, whether it be on the ATMs
or elsewhere, which gives the impression that the Lessor is the operator
or co-cooperator of the ATMs.
(C) The Bank and the GRK Cooperative Computing Center Kassel GmbH entered
into a master agreement with on June 21, 1995, as well as subsequently
into additional understandings supplementing the master agreement. This
master agreement and the supplemental understandings shall continue to
apply to those ATMs which the Bank is operating on the date of this
Agreement. The Lessor shall perform the obligations required of it in
this Agreement only with respect to new ATMs installed after the date of
this Agreement.
Subject to the terms of the preceding recitals, the parties hereby enter
into the following leasing, servicing, processing, software license and
software service agreement:
Translation: PMH/14.02.1997 4
(S)1
Leasing of Automatic Teller machines to the Bank
(1) Purpose of this Agreement
(a) The Lessor shall lease to the Bank those automatic teller machines
set forth in the equipment list contained in Exhibit 1 hereto
(hereinafter referred to as the "ATMs"). The Lessor is obliged to
update on an ongoing basis Exhibit 1 hereto by specifying therein
for each ATM covered by this Agreement (including those ATMs newly
installed during the term of this Agreement) its type and serial
number as well as its location and the name of the company or
corporate group occupying the premises where the ATM is installed.
The Lessor shall delete from Exhibit 1 any and all ATMs which,
during the term hereof, should no longer come within the scope of
this Agreement. The Bank shall specify the type of ATMs which the
Lessor shall lease to the Bank under this Agreement. The product
types of leased ATMs will be decided by the Bank. Exhibit 1 shall
specify the ATMs' features and capacities.
(b) The Lessor hereby warrants that no third parties have contractual
or property rights as to the ATMs which would interfere with the
Bank's use of the ATMs in accordance with the terms of this
Agreement.
2. Delivery, Place of Installation
(a) The Lessor shall deliver the ATMs at the location indicated by the
Bank.
The Lessor shall, sufficiently in advance of the delivery date,
take those measures necessary to put the ATMs in operation,
including the procuring of space for the installation and the
performance of those technical tasks in connection with the
installation and hookup of the ATMs. The Lessor shall promptly
inform the Bank in writing when a given ATM has become
operational.
Translation: PMH/14.02.1997 5
The Lessor shall bear any and all costs incurred in connection
with the procurement and the installation of the ATMs.
(b) The Bank's right to use the ATMs applies with respect to each of
those site locations specified in Exhibit 1 hereto. The Bank,
however, is entitled to relocate, when it so chooses, one or more
of the ATMs to other locations. The Bank shall give the Lessor six
months prior notice with respect to the relocation of an ATM. The
Lessor shall bear any and all transport and installation costs
incurred in connection with the relocation of ATMs. The Lessor's
obligations set forth in Article 1, paragraph 1, subparagraph a,
line 2 also apply to ATMs which have been relocated in accordance
with the terms of this subparagraph.
(c) Both the Bank and the Lessor are interested in increasing the
number of ATM sites. Only the Bank shall open new ATM sites. The
bank may, however, in individual cases, request that the Lessor
act in the Bank's name or on its behalf in connection with the
opening of new ATM sites and as to the entering into contracts for
the installation of the respective ATMs.
Any and all contracts in connection with the installation of ATMs
shall be entered into in the Bank's name or on its behalf. In
concluding contracts with third parties in connection with the
installation of ATMs, the Lessor is obliged to make known to such
third parties that the Bank is the operator of the respective
ATMs.
In the event that the Bank authorizes the Lessor to engage in the
opening of new ATM sites on the Bank's behalf, the Lessor shall
not contact, without the Bank's prior approval, those companies or
corporate groups designated in Exhibit 2 hereto on whose premises
the Bank then operates ATMs.
Translation: PMH/14.02.1997 6
(3) Additional Obligations Assumed by the Lessor
(a) The Lessor bears the operational and servicing costs in connection
with the ATMs. The Lessor shall carry out, or have carried out,
the maintenance and washing of the ATMs. The Lessor warrants that
the ATMs shall have an uniformed appearance which corresponds with
the Bank's expectations.
(b) The Lessor hereby warrants that the ATMs will conform with the
specifications and the performance criteria set forth in Exhibit 1
hereto.
(c) The Lessor shall immediately remedy any and all defects upon
discovery or notice thereof. The Lessor shall perform on work
days, during normal business hours, all services necessary to meet
its warranty obligations.
(d) The Lessor shall display the Bank's name and logo, and not its
own, on the ATMs' screens and display boards. The labeling
appearing on the ATMs must conform with the specimens worked up by
the Bank in conformance with those then current guidelines
applying to the German ec automated teller machine system. The
Bank shall supply the Lessor with that material necessary for the
labeling of the ATMs. The Lessor shall not attach or display third
party advertising on the ATMs without the Bank's prior consent.
Any and all compensation received in connection with third party
advertising appearing on the ATMs or components thereof shall be
paid to the Bank.
(S)2
Lessor's Servicing of the Automated Teller Machines
(1) Lessor's Obligation to Service the ATMs
Translation: PMH/14.02.1997 7
(a) The Lessor undertakes to service and maintain the ATMs listed in
Exhibit 1 hereto.
(b) Servicing shall include routine inspection of the ATMs
("preventative maintenance") as well as reparation ("repairs").
Exhibit 1 sets forth the number of ATMs, as well as their model
designation, specifications, and place and date of installation.
(2) Scope of the Lessor's Servicing Obligations
During the term of this Agreement, the Lessor shall keep the ATMs in
operating condition and shall carry out those maintenance services
necessary to do so.
(a) The Lessor's servicing obligations include the carrying out of
routine diagnostic inspections. During such routine inspections,
the Lessor shall clean the ATMs as well as check and, if
necessary, adjust and repair the ATM's distribution mechanisms,
card scanning devices, and screens.
In connection with its servicing obligations, the Lessor shall, at
the Bank's request, make those technical modifications to the ATMs
specified in Exhibit 1 necessary to assure their proper
functioning and to maintain sufficient levels of safety.
To the extent necessary, the Lessor shall, in the performance of
its service obligations, replace worn parts with new or new like
equivalents.
(b) Preventative Maintenance and Repairs also include:
- The repair of malfunctions or damages caused by force
majeure or by the Bank's employees or its independent
contractors as a result of (a) improper handling or use of
the ATMs, (b) violation of manufacturers' operating
Translation: PMH/14.02.1997 8
instructions, (c) the connection of the ATMs to an
electricity supply or to other equipment, (d) the use of
nonconforming computer equipment or other accessories or
(e) interventions or repairs carried out by the Bank or
third parties. The Lessor is not obligated pursuant to this
subparagraph to repair malfunctions or damages
intentionally caused by the Bank or its independent
contractors. The Lessor shall repair such intentionally
caused malfunctions or damages in return for receipt of
reasonable compensation;
- The installation, relocation or removal of the ATM
equipment or of any other accessories, related equipment,
attachments or other devices; and
- The rebuilding or general overhaul of equipment.
(3) Time Frames for the Performance of Service Obligations
(a) The Lessor shall inspect annually each of the ATMs. Such
inspection can occur in conjunction with the reparation of the
ATMs.
The lessor shall prepare for each calendar year a servicing
schedule for the respective ATMs and shall present such servicing
schedule to the Bank at the end of the proceeding calendar year.
The Bank is entitled to demand changes in this servicing plan in
order to accommodate its operations.
(b) The Lessor shall carry out its service obligations on work days
during normal business hours. To the extent possible, the Lessor
shall perform the servicing at the respective ATM site. The Lessor
shall promptly repair any and all malfunctions.
Translation: PMH/14.02.1997 9
(S)3
Data Processing Services to be Performed by the Lessor
(1) Lessor's obligation to Provide Data Processing Services
The Lessor shall provide the Bank, in accordance with the terms of this
Agreement and those specifications set forth in Exhibit 1 hereto, with
the automated data processing, as well as advise as to the organization
thereof, in connection with the ATMs which the Lessor has provided to
the Bank hereunder.
(2) Scope of Data Processing Services
The Lessor and the bank agree that, to the extent possible given the
existing organizational structures, routine services will be provided by
means of automated data processing (ADV) with respect to the ATMs
designated in Exhibit 1 hereto. Such routine services shall include:
- Account balance inquiries to the ATMs;
- Authorization of the Bank's institutional customers;
- Transmission of payment requests in conformance with the
guidelines of the Central Credit Agency ("ZKA");
- Transmission of payment requests made by those card companies
listed in Exhibit 4 hereto;
- Processing of transaction amounts generated out of ATM
availability/clearing operations and transmissions in the DTA
format by means of DTA band or direct file transfers to the LZB
designated by the Bank;
- Automated equipment surveillance;
- Supervision and monitoring of on-going ATM operations;
Translation: PMH/14.02.1997 10
- Manual equipment surveillance in the event of reports of
malfunctioning or the reaching of insufficient operating levels;
- Support with the handling of complaints and claims made in
connection with any and all transactions;
- Putting into place the systems necessary for the operation of ATMs
(including making the application for all essential data and
communication hookups; and
- Services and software for the ATMs pursuant to the software
license and service contract.
The parties may amend this Agreement so as to provide for additional
routine services.
(3) Downtime
(a) With respect to the linkup with the ATMs, the Lessor warrants that
the central computer system will operate, on an average, no less
than:
- Time period 1
97% of the time during work days from 6:00 a.m. to
10: p.m.;
- Time period 2
95% of the time during work days from 10:00 p.m. to 1:00
a.m. and during Sundays and holidays from 6:00 a.m. to 1:00
a.m.;
- Time period 3
90% of the time during work days from 1:00 a.m. to 6:00
a.m. and during Sundays and holidays from 1:00 a.m. to 6:00
a.m.
11
The calendar month shall serve as the measurement period for
determining the percentage of the time which the system is in
operation. The Lessor shall make available to the Bank at the end
of each month statistical information in connection with the
downtime in order to permit the Bank to determine if the downtime
has exceeded the limits set forth above.
(b) The parties agree that the Lessor is obligated to provide for 100%
availability.
In the event that the Lessor does not obtain the operating levels
provided for in subparagraph (a) hereof, the Bank is entitled to
reduce the remuneration provided for in Article 5 hereof by the
following amounts:
- 30% in the event of the failure to reach the performance
level corresponding to time period 1;
- 20% in the event of the failure to reach the performance
level corresponding to time period 2; and
- 10% in the event of the failure to reach the performance
level corresponding to time period 3.
(c) In the event the Lessor's central computer system breaks down, the
Lessor must provide for another date processing system within a
reasonable period, but in no event later that twenty-four hours
after the occurrence of the breakdown.
(4) Supply of Cash for the ATMs
The Bank shall provide the Lessor with the amounts of cash necessary for
the operation of the ATMs. The Lessor or its independent contractors
shall, in accordance with the Bank's instructions, transport the cash,
install the cash into the ATMs, keep balances and make cash available
for pay out.
12
(5) Warranty
(a) The Lessor hereby warrants that all data processing services shall
be carried out in accordance with the applicable standards in the
industry by means of equipment meeting the most recent technical
standards.
(b) In carrying out its data processing services, the Lessor shall
comply with all German norms and regulations (e.g., ISO 8583) as
well as with the specifications established by the Cologne Bank
Association for ATMs and the regulations applying to the German
ec-ATM system ("German ec-ATM" protocols, guidelines and exhibits
applying to the agreements concluded with respect to the German
ec-ATM system).
(S)4
Software License and Service Agreement
(1) Lessor's Obligations with respect to Software Licensing and Equipment
Maintenance
(a) The Lessor shall install onto the ATMs that software necessary for
their proper functioning.
(b) The Lessor shall acquire in accordance with the Bank's
instructions all third party rights of use necessary for the
operation of the ATMs. The Lessor shall adapt all necessary
software and corresponding documentation in order to accommodate
the exchange of data between the Lessor and the Bank. In
connection with those rights which the Lessor has obtained from
third parties, the Lessor hereby grants the Bank, subject to the
following terms and conditions, a fixed term, nonassignable,
nonexclusive right of use to the software in connection with the
ATMs.
13
Exhibit 5 hereto identifies the licensors and specifies the type
of equipment on which the software may be run.
(c) The Lessor shall deliver the software to the Bank in a form which
may be read by computer and shall furnish the Bank with the
corresponding manuals and instructions.
(2) Restrictions on Use
The Bank shall only have the right to use the software within the
Federal Republic of Germany.
The Lessor is entitled, subject to obtaining the Bank's prior approval,
to take back or erase data carriers containing out-of-date programs or
non longer needed programs. The same applies to out-of-date or no longer
needed program documentation.
(3) Warranty
The Lessor shall ensure that the software and the program documentation
is appropriate for the use specified in this Agreement and conforms with
the description of services given to customers at the time of
installation.
(4) Obtaining the Rights to Software and Program Documentation
(a) The parties hereby agree that the Lessor or authorized third
parties shall retain the ownership and copyrights to the software
and the program documentation, to the extent that the parties have
not agreed otherwise with respect to component parts.
14
(b) The Lessor shall defend the Bank against all claims arising out of
the infringement of intellectual property rights or copyright as
the result of the Bank's use of the software programs in
accordance with the terms of this Agreement. The Lessor shall
indemnify the Bank for any court cost or damages awarded against
the Bank.
(c) If any claims identified in subparagraph (b) hereof have been
brought against the Bank or are likely to be brought against the
Bank, the Lessor may substitute the software or program
documentation with, or exchange such software or program
documentation for, other software or program documentation to the
extent that such substitution or exchange remains within
reasonable proportions from the point of view of the Bank. In the
event that such substitution or exchange cannot be reasonably
obtained, and the Lessor cannot obtain a right of use for a
reasonable price, either party shall have the right to terminate,
without notice a notice period, the license as to the affected
software or program documentation. In such an event, the Lessor
shall indemnify the Bank from any damages resulting from such
termination.
5. Maintenance and Servicing of Software
(a) The Lessor shall maintain and service the software programs listed
in Exhibit 5 hereto in accordance with the terms of this
Agreement. Maintenance and servicing shall include a routine
inspection and servicing program designed to maintain the Bank's
software programs in operating order, to repair any malfunctions
or defects as well as to adapt the software programs to the Bank's
specific needs.
The Lessor's obligation to provide maintenance and servicing shall
extend to the documentation corresponding to the software programs
as well as those data material (files and date bank material)
listed in Exhibit 5 hereto.
15
(b) Specific Duties Falling under the Lessor's Obligation to Provide
Maintenance and Servicing:
- Installation of latest version of all that software called
for by this Agreement;
- Supply of new or adapted documentation in the event of
changes in programs;
- Prompt repair of defects or errors in the software programs
or in the corresponding documentation, to the extent that
such defects or errors affect the software's operating
capacity; and
- Repair of defects in the programs listed in Exhibit 5
hereto, which defects have come to the lessor's attention by
other means than through the Bank's use of the programs.
The Lessor's obligation to repair malfunctions shall include (a)
the removal of the potential causes of malfunctions, (b) the diagnosis
of the particular malfunction and (c) the elimination thereof. In the
event that such repair is not possible through reasonable means and
effort, the Lessor shall render the software operational by means of
circumventing the malfunction or defect. The elimination of an error in
a software-program shall also include the correction of the respective
documentation and manuals.
(c) The Lessor shall perform the servicing and maintenance on weekdays
during normal business hours. The Lessor shall use qualified personnel
to perform the servicing and maintenance, and such personnel must be
familiar with the software programs and documentation listed in Exhibit
5 hereto.
Translation: PMH/14.02.1997 16
The Lessor shall make available to that personnel performing the
servicing and maintenance the most modern and advanced tools and
diagnostic equipment in order to assure prompt and effective maintenance
and servicing. Upon request, the lessor may call upon the Bank's data
processing service for assistance. The Lessor shall reimburse the Bank
in full for any and all costs resulting from any such assistance
requested by the Lessor, including personnel costs, travel and hotel
costs and any other expenditures
(S)5
Compensation to the lessor
The Bank shall compensate the lessor for the services which the latter provides
hereunder. The compensation shall be calculated in lump sums, which shall be
deemed to compensate the Lessor in full for all services which it is obligated
to perform under this Agreement.
The method of calculating the Lessor's compensation is set out in detail in
Exhibit 6 hereto. This method shall be adjusted on a monthly basis in order to
take into account changes in circumstances, in particular changes in the amount
of the average cash withdrawal from the ATMs.
Notwithstanding the Bank's right to terminate this Agreement pursuant to Article
14, paragraph 3, the parties shall re-negotiate the terms of the method of
calculating the Lessor's compensation provided for in Exhibit 6 in the event
that the Bank or an affiliate thereof, as defined in Article 15 (and thereafter)
of the Law on Company Shares or in Article 290 of the Commercial Code, takes or
transfers, directly or indirectly, a significant participation in the Lessor or
an affiliate thereof, as defined in Article 15 (and thereafter) of the Law on
Company Shares or in Article 290 of the Commercial Code. Significant
participation shall mean for purposes of this paragraph any and all direct or
indirect participation in the capital, or any and all control over voting
rights, to the extent that the percentage of such participation and/or voting
rights, or aggregate thereof, results in (a) attaining a participation and/or
voting rights, or aggregate thereof, of 5% or more or (b) divesting of a
participation and/or of voting rights so as to have a participation and/or
voting rights, or aggregate thereof, of less than 5%.
Translation: PMH/14.02.1997 17
(S)6
Proper Performance of Services
(1) Principles of Proper Bookkeeping and Data Processing
The Lessor undertakes to carry out the bookkeeping services required of
it under this Agreement in accordance with accepted accounting
principles. The Lessor shall conduct, at its on cost, on a regular
basis, reviews of the date processing, to the extent it has a right of
access thereto. The Lessor shall automatically provide the Bank with a
copy of such reports promptly upon their completion. The Lessor shall
inform the Bank in writing as to planned reviews.
In addition thereto, the Lessor shall undertake reviews of data
processing when requested to do so by the Bank. The Lessor shall give
the auditors appointed by the Bank access to material documents and
shall provide such auditors with the necessary copies. The Lessor shall
give the auditors, subject to reasonable notice, access to its offices.
The Lessor shall bear all costs and expenses arising out of such audits.
(2) Security with respect to Data Processing
The Lessor undertakes to take adequate security measures with respect to
all services which it shall perform under this Agreement. The Lessor
shall take at all times the following security measures with respect to
all data in its possession:
- ensure that all processes can be duplicated and modified with
reasonable effort;
Translation: PMH/14.02.1997 18
- ensure that all date which is essential for the prosecution of
claims is recorded and can be reconstructed so that in an
emergence the processing of such claims can be carried out in a
reasonable time period;
- ensure the availability of corresponding program documentation,
organizational handbooks and emergency procedures.
Principal and backup data shall be recorded by means of at least two
complete system runs, conducted one after the other, from the point in
time of the last system run.
In order to protect against the loss of data, the Lessor shall store the
principal data in its possession in a separate archive apart from the
backup data, so that in the event of a loss of all or part of the
principal data, the Lessor will be able to retrieve the backup data for
a period of up to a week. The Lessor undertakes to install and implement
safety mechanisms and emergency procedures, and to test and update these
mechanisms and procedures on a regular basis.
(3) The Lessor also undertakes to comply with, in connection with the
performance of its contractual obligations hereunder, any and all
regulations pertaining to banking activities; e.g., the law governing
credit institutions (KWG) as well as those rules, procedures,
announcements, instructions, regulations and guidelines issued by the
federal agency responsible for the supervision of credit institutions
(Bundesaufsichtsamtes fur das Kreditwesen).
The lessor hereby undertakes immediately to report to the Bank and to
cure any and all violations of the above mentioned regulations or
directives which have come to the Lessor's attention through its own
initiative, through notice by the Bank or as a result of auditing or
inspection activities.
Translation: PMH/14.02.1997 19
(4) To the extent that the Lessor is obligated hereunder to keep documents
belonging to the Bank, the Lessor is subject to those legal duties and
requirements concerning the keeping of banking records.
(5) In order to enable the Bank to determine whether the Lessor has
fulfilled its obligations under paragraphs (1) and (2) hereof, the
Lessor is obliged to provide all that necessary documentation requested
by the Bank.
(6) The Lessor shall be solely responsible, in particularly with respect to
customers and regulatory agencies, for assuring that the accounting is
conducted in conformance with accepted standard accounting principles.
(S)7
Confidentiality of Business Records
(1) The Lessor shall, in performing its duties hereunder, comply with
applicable federal and state laws concerning the confidentiality of
business records as well as with the laws and regulations concerning
banking secrecy.
(2) Upon the Bank's written request, the Lessor shall undertake the
following:
(a) Supply information concerning (a) customer data which the Lessor
has processed or received from the Bank and (b) data files and
data collected on specific persons or groups of persons;
(b) Correct customer data;
(c) Block the further processing or use of customer data; and
(d) Erase customer data.
Translation: PMH/14.02.1997 20
(3) The Lessor hereby acknowledges that the duties set forth in paragraph 2
hereof apply to claims which third parties may bring against the Bank.
The Lessor is not entitled to refuse to perform these duties on the
grounds that it has certain rights with respect to the Bank.
(4) The Lessor undertakes to return to the Bank upon termination or
expiration of this Agreement any and all data carriers or documentation
which the Bank gave to the Lessor. The same obligation applies to any
and all documentation containing customer data which the Lessor
processed pursuant to the execution of its obligations hereunder. The
Lessor shall delete from its documentation, computer systems and storage
equipment any and all data which the Lessor has processed on behalf of
the Bank. Such deletion shall be carried out in such a manner that the
deleted data can not be retrieved or reproduced.
(5) The Lessor is not entitled (a) to refuse to carry out its duties under
paragraph 4 hereof or (b) to assert a right of retention as to the data
carriers or documentation set forth in paragraph 4 hereof on the grounds
that it has certain rights against the Bank.
(6) The Lessor and the Bank agree that any and all customers, to the extent
the Lessor has received or accumulated data with respect thereto, has a
direct cause of action against either party hereto should such party
breach its obligations owed to the other party hereunder (Article 328,
paragraph 1 of the German Civil Code).
(7) The Bank shall have the right at any time to investigate, either itself
or through a third party, whether the Lessor has complied with the
provisions of paragraphs 1 through 6 hereof. The Lessor undertakes to
give the Bank access to its documents, office space and computer
systems, as well as to support the Bank in every manner, in connection
with the Bank's conducting such investigations.
Translation: PMH/14.02.1997 21
(S)8
Confidentiality and Secrecy
(1) The Lessor undertakes to keep confidential any and all documentation,
information and data concerning the Bank or third parties in
conformance with the federal law on the confidentiality of business
records. In particular, the Lessor shall not exploit or use for
advertising purposes addresses or other information as to an
individual's identity obtained in connection with the Lessor's
operation of the ATMs. This obligation as to confidentiality shall
remain in effect after the termination or expiration of this Agreement
and after completion of the corresponding ATM transactions carried out
pursuant to this Agreement.
(2) The Lessor hereby acknowledges that the customer data which it has
processed or received from the Bank or third parties can fall within
the scope of the bank secrecy laws. The Lessor undertakes to keep
confidential this customer data and not to disclose or grant access to
this data to unauthorized persons or entities. The duty to uphold the
bank secrecy laws applies not only to the processing of protected data
in the Lessor's central computer, but also to the transporting or
sending of such data by electronic means.
(3) The Lessor shall require its personnel and independent contractors to
undertake in writing to keep confidential, and to respect the bank
secrecy laws in connection therewith, any and all documentation or
information which the Lessor received as a result of, or in connection
with, the conclusion, performance or termination of this Agreement or
as a result of, or in connection with, the individual ATM transactions
undertaken pursuant to this Agreement. The lessor shall require its
personnel and
Translation: PMH/14.02.1997 22
independent contractors to undertake in writing not to process or use
customer data for a purpose other than the one specified in this
Agreement nor to disclose or give access to such customer data to
unauthorized third parties. The Lessor shall ensure that such written
undertakings of confidentiality (a) shall survive both the expiration
of this Agreement and the completion of the individual ATM transactions
provided for hereunder and (b) shall continue to bind the obligor after
the date he or she ceases to perform services for the Lessor.
(S)9
Federal Bank Supervisory Board
In the event that the Federal Bank Supervisory Board (BAK), the Federal
Association of German Banks e.V. or the Central Credit Board (ZKA) subsequently
requires the modification of this Agreement, the Lessor will use best efforts to
reach agreement with the Bank in order to made such modifications to this
Agreement. In the event that the parties can not reach an agreement as to the
inclusion of the required modifications into this Agreement, then either party
shall has the right to terminate this Agreement, with immediate effect, upon
giving written notice (by registered letter with return receipt requested) of
its intention to do so. Such a termination shall not affect ongoing ATM
transactions.
(S)10
Money Laundering
The Lessor hereby acknowledges that the Bank is subject to the binding
provisions of the Money Laundering Law (GwG) and the directives, announcements
and the regulations pronounced by the Federal Bank Supervisory Board (BAK). The
Lessor undertakes to perform its contractual obligations hereunder, to carry out
the individual transaction provided hereunder and process such business
transaction in a manner which enables the Bank to comply at all times with the
binding provisions of the Money Laundering Law (GwG) and the directives,
announcements and the regulations pronounced by the Federal Bank Supervisory
Board (BAK). The important pronouncements made by the Federal Bank Supervisory
Board (BAK) are contained in (a) the BAK's directive of October 26,1994,
concerning those measures which credit institutions must take to combat and
prevent money laundering (I 5-
Translation: PMH/14.02.1997 23
E100) and (b) the BAK's announcement of January 24, 1995, concerning measures to
combat money laundering (I 5-B102) (this directive and announcement are attached
as Exhibit 7 hereto).
(S)11
Supplemental Obligations
(1) Disclosure of Documentation to the Lessor
To the extent permitted by the laws concerning the confidentiality of
business records and bank secrecy, the Bank shall grant the Lessor
access to that documentation, and supply the Lessor with that
information, necessary to enable the Lessor to perform its obligations
hereunder and to carrying out those individual ATM transactions
provided for herein.
(2) Diverse Obligations
Each party shall obtain the written prior approval of the other party
(both in principle and as to the particular contents) before
distributing any and all newsletters, printed material or multiple
copies referring to this Agreement or to the parties' business
relationship.
(3) All work which the Lessor is required to perform hereunder shall be carried
out by the Lessor's employees or the employees of the equipment
manufacturers, in particular the software providers chosen by the Lessor.
The Lessor shall ensure that the persons performing this work are qualified
therefor and are familiar with the features of the ATMs, in particular the
respective software.
(S)12
Delays in Performance
Translation: PMH/14.02.1997 24
(1) In the event the Lessor is late in performing one of its obligations
hereunder, the Bank is entitled to impose, for each ATM, a penalty of DM
500,00 for each day of delay.
(2) The parties hereby acknowledge that the keeping the ATMs in constant
operating order is very important for the Bank's reputation with respect
to its customers. Consequently, the Lessor undertakes to repair any
defects or malfunctions within 24 hours of learning thereof. In the
event the Lessor does not make the necessary repair within 24 hours, the
Lessor shall pay to the Bank, per ATM, a penalty of DM 1,000.00 for each
day of downtime.
Translation: PMH/14.02.1997 25
(S)13
Liability
(1) The Lessor shall be liable for any damages arising from the wrongdoing
(intentional or negligent) of its employees or its independent
contractors.
(2) The Lessor is also liable for damages arising from improperly authorized
pay-outs as a result of defective CIM readings.
(3) Damages shall include lost profits, increase costs, and indirect and
consequential damages.
(4) In the event the Bank should incur damages, the burden of proof is on
the Lessor to prove that it did not cause such damages.
(5) The Lessor undertakes to carry for the duration of this Agreement
property-damage insurance which shall cover all damages that can be
foreseen at the time of the signing of this Agreement. The Lessor shall
provide the Bank with a certified copy of the insurance policy before
starting to install ATMs. Before installing additional ATMs, the Lessor
shall increase the insurance coverage accordingly and shall confirm such
coverage increase by mean of providing the Bank with a certified copy of
the new insurance policy or the amendment to the existing policy.
(6) The Bank is not liable for its negligence or gross negligence nor for
those negligent or grossly negligent acts committed by its employees or
independent contractors on the Bank's behalf.
Translation: PMH/14.02.1997 26
(S)14
Coming into Force and Termination
(1) This Agreement shall come into force as soon as the Lessor has fulfilled
the necessary technical requirements and informed the Bank in writing
thereof (tentative date: March, 1997).
(2) Both parties may terminate this Agreement with a 6 month notice period,
which shall start to run on the last day of the calendar year in which
the notice was given. In no event may a party terminate this Agreement
before December 12, 1999. The parties retain the right to terminate
immediately this Agreement in the event that the other party commits an
important breach of the material terms hereof. Important breaches of
material terms include, but are not limited to, the following:
- In the event that federal, state, county, city or community
officials object to the conclusion or execution of this Agreement,
or of any of those individual ATM transactions provided for
herein, and the party against whom the objection was addressed
does not eliminate the cause or, or cease the conduct, which gave
rise to the objection within the delay set by the respective
officials.
- The Lessor continues to breach the material terms of this
Agreement, or to fail to perform its obligations hereunder, after
receiving written notice from the other party to cease the
offending conduct or to perform the respective duties.
(3) The Bank is entitled to terminate, without a notice period, this
agreement upon giving the Lessor written notice of its intention to do
so in the event that the Bank or an affiliate thereof, as defined in
Article 15 (and thereafter) of the Law on Company Shares or in Article
290 of the Commercial Code, takes or transfers, directly or
Translation: PMH/14.02.1997 27
indirectly, a significant participation in the Lessor or an affiliate
thereof, as defined in Article 15 (and thereafter) of the Law on
Company Shares or in Article 290 of the Commercial Code. Significant
participation shall mean for purposes of this paragraph any and all
direct or indirect participation in the capital, or any and all control
over voting rights, to the extent that the percentage of such
participation and/or voting rights, or aggregate thereof, results in (a)
attaining a participation and/or voting rights, or aggregate thereof, of
5% or more or (b) divesting of a participation and/or voting rights so
as to have a participation and/or voting rights, or aggregate thereof,
of less than 5%. Should such an event should occur, the Bank may decide
to re-negotiate, in accordance with Article 5 of this Agreement, the
compensation provisions provided for in Exhibit 6. If the parties fail
to reach an agreement in connection with such negotiations as to
compensation within one week, the Bank retains the right to terminate
this Agreement, without a notice period, in accordance with this
paragraph.
(4) The Bank is entitled to exclude from the scope of this Agreement,
without a notice period, those ATMs which (a) the Bank has definitively
stopped operating or (b) have been stolen, scraped or irreparably
damaged.
(5) Any and all terminations pronounced pursuant to the terms of this
article must be given in writing in the form of a registered letter with
return receipt requested.
(6) The termination of this Agreement shall not affect those ATM
transactions commenced prior to the termination.
(S)15
Consequences of Termination
(1) In the event of the termination or expiration of this Agreement, the
Lessor shall take into consideration that responsibility resulting from
the Bank's transactions and shall provide an interim solution in order
to assist the Bank in putting into place a new operating structure.
Translation: PMH/14.02.1997 28
(2) The parties shall wind up and bring to an end the contractual
relationship during the notice period or, if applicable, during the
transition period provided for in paragraph 1 hereof. In the event that
such a winding up is not possible for particular reasons, the parties
undertake to enter into an agreement that permits a smooth switch over
to new operating systems.
(3) Regardless of which party terminates this Agreement, both parties
undertake to wind up the contractual obligations in accordance with
those written procedures fixed by the parties. These written procedures
must correspond in a reasonable manner to the interests of both parties.
(4) The Lessor shall bear the risk and cost of disassembling and recovering
the ATMs. The Lessor shall ensure that the ATM sites are in good
condition after the removal of the respective ATMs. Article 258 of the
Civil code shall apply.
(5) When the Termination becomes effective, the Bank shall return to the
Lessor any and all original software provided by the Lessor and any and
all complete or partial copies thereof (including modified versions and
copies containing other programs as well). With respect to software
which is recorded on machine-readable data carriers belonging to the
Bank, the Bank need not turn these carriers over to the Lessor provided
it erases the software registered thereon. The Bank shall also return or
erase all software documentation and reference material provided by the
Lessor.
(S)16
Costs and Expenses
Lessor shall bear any and all costs, expenditures, taxes, deductions and
fees (including court and administration costs as well as legal fees) arising
out of or in connection with this
Translation: PMH/14.02.1997 29
Agreement, its preparation, performance or expiration, or resulting from the
carrying out of the individual ATMs transactions.
(S)17
Notices
(1) Any and all notices, announcements or other communications made pursuant
to the terms of this Agreement must be made in writing and delivered in
person or sent by mail, telex (with answer back), facsimile (to be
confirmed in writing) or electronic data transmittal (with confirmation
of receipt). The communication is to be sent to those addresses and
persons indicated on the signature page of this Agreement or to such
other address which the recipient of such notice or communication may
have indicated in writing to the other party. A written confirmation of
posting or sending of a notice or a communication is proof of the other
party's receipt thereof within the following time periods:
a) If sent by mail, five days after being delivered to the respective
post office; and
b) If sent by telex, facsimile or electronic transfer, one day after
transmission.
The notice provisions provided for in this article do not affect the
notice requirements for termination set forth in article 4, paragraph 4
(c), article 9, paragraph 2 and Article 14, paragraph 2 and 3 hereof.
(2) Any and all notices, announcements or communications made pursuant to
paragraph 1 hereof must to be in the German language or be accompanied
with a German
Translation: PMH/14.02.1997 30
language translation. In the event of discrepancy between the German
and the foreign language text, the German text shall govern.
(S)18
Applicable Law, Place of Performance,
Jurisdiction, and Language of the Agreement
(1) The law of the Federal Republic of Germany shall govern the terms of
this Agreement.
(2) Cologne, the Federal Republic of Germany is deemed to be the place of
performance for any and all duties and obligations provided for in this
Agreement.
(3) The courts in Cologne, Federal Republic of Germany shall have exclusive
jurisdiction over any dispute arising out of this Agreement; provided,
however, that the Bank is entitled to bring a cause of action against
the Lessor before any court in whose jurisdiction the Lessor may reside
or have a branch office or assets.
(4) Only the German language version of this Agreement shall be executed by
the parties. The German language version of this Agreement shall govern
for purposes of interpretation of the terms hereof. Other versions of
this Agreement prepared in other languages shall not be binding and
shall serve merely as translations.
(S)19
Severability
In the event that this Agreement is deemed incomplete or to contain a provision
which is invalid, the remaining provisions will remain unaffected thereby. The
parties shall replace the invalid provision, or supplement the necessary missing
provisions, with provisions which
Translation: PMH/14.02.1997 31
lead to the result which the parties would have agreed upon had they known of
the invalidity or absence of the respective provisions.
(S)20
Modifications
Any and all modifications of the Agreement, including any modification of this
article, must be made in writing. The parties shall complete those legal
formalities necessary to render this Agreement valid and binding.
Translation: PMH/14.02.1997 32
----------------------------------------
Service Bank GmbH & Co. KG
Business Address: Xxxxxxx-Xxxxx-Xxxx 00-00
00000 Xxxxxxx
Xxxxxxx Xxxxxxxx of Germany
Contact Person: Xxxx Kabs
----------------------------------------
Euronet Service GmbH i. Gr.
Business Address: Xxxxxx-Xxxxxxxxx-Xxxxxxx-Xxx. 00
00000 Xxxxxxxxx
Contact Person: Xxxx Xxxxxx
Translation: PMH/14.02.1997 33
Exhibit 6 to the Master Agreement between Service Bank and Euronet
------------------------------------------------------------------
The lessor's compensation shall be calculated in the following manner:
(a) 1.35% of the monthly amount of cash turnover generated in connection with
the ATM transactions; subject to a reduction in the amount of DM 0,35 for
each cash withdrawal transaction, provided that the average amount of such
cash withdrawal transactions is DM 260. In the event that the average
amount of the cash withdrawal transactions changes, then the above
mentioned commission will be adjusted on a monthly basis with respect to
the average amount of the cash turnover.
(b) The amount of this compensation shall be further reduced by the following
amounts (the "Deductions"):
(alpha) a monthly fixed deduction in the amount of DM 100,00 for each ATM
covered by this agreement to the extent that the average number of
transactions per ATM does not exceed 1,000 during the respective
month. In the event that the average number of transactions per
ATM exceeds DM 1,000, an additional deduction will be imposed
equal to the average number of transactions per ATM over and above
1000 multiplied by DM 0.10 (ie., on transactions between 1,001 and
1,500,000). In the event that the total number of transactions
exceeds 1,500,000 per month, the deduction will be increased to DM
0.20 for every additional transaction (i.e., on transactions
between 1,500,001 and 2,000,000). In the event that the total
number of transactions exceeds 2,000,000 per month, the deduction
will be increased to DM 0.30 for every additional transaction
(i.e. on transactions between
Translation: PMH/14.02.1997 34
2,000,001 and 5,000,000). In the event that the total number of
transactions exceeds 5,000,000 per month, the deduction will be
increased to DM 0.35 for every additional transaction.
(beta) Those amounts which the bank must pay during the respective month
in connection with authorization services provided by Bank-Verlag
Koln or other service providers;
(x) Those fees which the bank must pay, pursuant to its membership in
Visa International Service Association's card organization, during
the respective month, to Visa International Service Association or
to other services providers which are connected to the Visa-
payment system, to the extent that such fees are due on ATM
transactions.
All deductions shall be increased by the applicable VAT. In the event
that the bank adjusts the fees charged for ATM transactions due to
changes in the law or on account of changes in its business policy, or if
the bank exonerates customers of certain credit institutions from such
fees, the commission rate provided for in paragraph 2(a)(sic.)1 of this
exhibit shall be adjusted accordingly.
(3) No service charge shall be applied against transactions undertaken with
ec-cards, money cards or other credit or cash cards issued by the bank.
These transactions shall not be taken into account in the calculation of
the cash turnover pursuant to paragraph (2)(a)(sic.) of this exhibit
nor in the calculation of the deductions pursuant to paragraph
(2)(b)(sic.) of this exhibit.
(4) Compensation shall be paid on a monthly basis on every fifth work day of
each month for the past month.
The Lessor shall provide the bank, on the third work day of each month,
with turnover figures which enable the bank to calculate, for the past
month, the number of transactions as well as the amount of compensation
due in connection with the ATMs covered by this Agreement.
Cologne, January 10, 1997 Cologne, January 10, 1997
Service Bank GmbH & Co. KG Euronet Service GmbH i. Gr.
