SERVICE AGREEMENT
This Services Agreement (the "Agreement") is made as of August 28, 2004 (the
"Effective Date") by and between Asia Payment Systems, Inc., a Nevada
corporation, having a principal place of business at 000 0xx. Xxxxxx #0000
Xxxxxxx, XX 00000 XXX ("API") on the one hand, and GP Network Corporation, a
Tokyo corporation having a principal place of business at Shibuya Xxxxxx
Xxxxxxxx, 00X, 00-0 Xxxxxxxxx 1-chome, Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx
("GPN"), on the other hand (each a "party" and collectively the "parties"), as
follows:
ARTICLE 1 PURPOSE.
The purpose of the Agreement is to realize the transmission of card transaction
data for both authorization and settlement between API and GPN set forth in the
Statement of Work attached hereto as Exhibit "A" ("Services").
ARTICLE 2 RESPONSIBILITY
Both Parties shall cooperate on a timely basis and perform activities to fulfill
its obligations and responsibilities under this Agreement. In addition, each
party shall be responsible for the following:
2.1. API's responsibility
a. Transmission of credit transaction data (authorization and settlement)
generated at the merchants utilizing POS system developed by API to the network
operated by GPN for data transmission between merchants and card
issuers/acquirers ("GPNET").
b. Maintenance and update of POS system on behalf of merchants under
contract
c. Others related services deemed necessary.
2.2 GPN's responsibility
a. Transmission of card transaction data (authorization and settlement)
received from API to card issuers/acquirers pursuant to the Agreement between
GPN and card issuers/acquirers.
b. Others related services deemed necessary.
ARTICLE 3 SYSTEM MODIFICATION AND CHANGE PROCEDURES.
Both parties may modify the system, at any time during the term of this
Agreement, which may affect to other party's system, provided that the parties
comply with the following procedures:
a. The party intending to modify the system ("intending party") shall
submit other party ("affected party") a written request for any change ("Change
Request").
b. As soon as reasonably possible after the receipt of any such Change
Request by the
affected party, and in any event not more than 10 (10) days after receipt
thereof, the affected party shall provide intending party with a written
statement (i) offering to perform consistent with the Change Request, or (ii)
proposing modifications to the Change Request, or (iii) rejecting such request.
Any statement offering to perform or proposing modifications to the Change
Request will include detailed information as to (a) the availability of the
affected party's recourses, and (b) the impact, if any, on the time for
completion of complying with the Change Request or the delivery of any
deliverable items and/or the cost for complying with such modification.
c. When the intending party desires to implement a Change Request, written
authorization shall be provided to the affected party to proceed with such
Change Request upon the terms set forth therein or as modified by the affected
party in its response pursuant to Section 3.b. Upon receipt of such written
authorization from the intending party, the affected party shall promptly
commence performance in accordance with the Change Request as modified by the
affected party's response thereto.
d. Each Change Request, as modified by the affected party's response
thereto, which is signed by authorized representatives of the parties shall
constitute a formal modification to, shall be deemed incorporated into and shall
become a part of the Services.
ARTICLE 4 ISSUE RESOLUTION.
Both parties shall be responsible for taking preventive measures against system
outage for the services that each party provides, and jointly develop an
emergency escalation procedure for recovery. Any system outage shall be
reported to the other party immediately by the party causing such outage. After
the prompt implementation of emergency escalation procedure and recovery of the
system, the party caused the outage shall provide written report including, but
limited to, the cause of outage, recovery measurement taken, and preventive
measures for future enhancement within 30 days.
ARTICLE 5 PRIVACY AND INFORMATION SECURITY.
The parties acknowledge and agree that transaction data includes information
that is subject to applicable law related to the use of transaction data,
including the Law Concerning the Protection of Private Information and
associated regulations. Parties shall not use transaction data, nor shall it
duplicate or incorporate transaction data into its own records or databases,
except to the extent necessary to perform the services and its other obligations
under the Agreement.
ARTICLE 6 CONFIDENTIALITY.
6.1. GPN shall not disclose any confidential information of API to any third
parties other than directors, executives, employees, agents, affiliates or
subsidiaries of GPN, or use any such information for any purpose other than for
the purpose of performing the Services. GPN shall maintain any such information
in confidence using the same degree of care as it takes to protect its own
confidential and proprietary information of similar type and value, but in no
event less than a reasonable degree of care.
6.2. "Confidential Information," as used herein shall mean any technical and
commercial information, patent, copyright, computer programs, trade secret,
business models, know-how and processes of the disclosing party which is
disclosed hereunder in tangible form and prominently marked "confidential" or
"proprietary" or disclosed orally, provided such disclosure is identified as
"confidential" or "proprietary" and subsequently described in writing and
delivered to the receiving party within thirty (30) days of oral disclosure.
6.3. API shall not disclose to any third parties Confidential Information of
GPN acquired through receiving the Services, or use such information for any
purpose other than the transaction contemplated hereunder, without its prior
written consent.
6.4. The obligations provided in this article shall not apply to the
information that (i) is owned or possessed by the receiving party without owing
any obligations to keep it in confidence, (ii) is legitimately acquired from a
third party without owing any obligations to keep it in confidence, (iii) is
independently developed without reference to information provided by the
disclosing party, (iv) is of public domain prior to the date of this Agreement
or subsequently becomes public domain through no fault of a receiving party or
(v) is provided without being marked or identified as confidential in accordance
with the second paragraph of this article.
6.5. Upon termination or expiration of this agreement, the receiving party
shall, at the election of the disclosing party, return all documents, materials
and any other media containing Confidential Information to the disclosing party
or destroy them.
ARTICLE 7 LIMITED WARRANTY.
Both parties understand that the Services are for the purposes of transmitting
sales data generated by the use of card between merchants and card
issuers/acquirers, and will exert its best endeavors to achieve such purposes.
Provided however that GPN DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SYSTEM OR THE SERVICES.
GPN DOES NOT WARRANT THAT THE SYSTEM OR THE SERVICES WILL ALWAYS SATISFY API'S
REQUIREMENTS FOR ALL PURPOSES OR THAT THE SYSTEM OR THE SERVICES ARE WITHOUT
DEFECT OR ERROR.
ARTICLE 8 LIMITATION OF LIABILITY.
In no event shall either party hereto be liable to any other party hereto for
any special, indirect, consequential, punitive or incidental damages (including
but not limited to damages for loss of profits) arising out of or in connection
with this Agreement, regardless of forms of action, whether by contract, tort or
otherwise, even if it was or should have been aware or advised of the
possibility of such damages.
ARTICLE 9 INDEMNITY
9.1. API Indemnity. API shall be liable for and shall indemnify and hold GPN
harmless against any claims that those portions of API Service that embody API's
Confidential Information, software code or other materials provided to GPN by
API, including, without limitation, any portion of API Service that is developed
pursuant to API's specifications, infringe any patent, trademark or copyright,
provided that API is given prompt written notice of such claim, as well as
information, reasonable assistance and the sole authority to defend or settle
such claim.
9.2. GPN Indemnity. GPN shall be liable for and shall indemnify API against
any claims that the GPNET Service infringe any patent, trademark or copyright,
provided that GPN is given prompt written notice of such claim, as well as
information, reasonable assistance and the sole authority to defend or settle
such claim. The fulfillment of the obligations set forth in this Section 9.2
shall constitute API's sole and exclusive remedy for any such infringement. GPN
shall have no obligation to indemnify or defend API to the extent: (a) the
alleged infringement is based on information, software code or other material
furnished by API, or is developed pursuant to API's specifications; (b) the
alleged infringement is the result of a modification made by anyone other than
GPN; (c) such claim would have been avoided but for the combination or use of
the GPNET Service, or portions thereof, with other products not provided by GPN;
or (d) API uses the GPN's Service and Documentation other than in accordance
with this Agreement.
9.3. General Indemnity. For claims not covered by Sections 9.1 and 9.2, above,
each party ("indemnifying party") shall indemnify and hold the other party
("indemnified party") harmless against any claim, including costs and reasonable
attorney's fees, in which the indemnified party is named as a result of the
negligent or intentional acts or failure to act by the indemnifying party, its
employees or agents, while performing its obligations pursuant to this
Agreement. This indemnification obligation is contingent upon the indemnified
party's providing the indemnifying party with prompt written notice of such
claim, as well as information, reasonable assistance and the sole authority to
defend or settle such claim.
ARTICLE 10 FORCE MAJEURE.
10.1. Neither party shall be liable for any default or delay in the performance
of its obligations under this Agreement (i) if such default or delay is cause,
directly or indirectly, by fire, flood, earthquake, elements of nature or acts
of God or any other cause beyond the reasonable control of such party; and (ii)
provided the non-performing party is without material fault in causing such
default or delay and such default or delay could not have been prevented by
reasonable precautions. In such event, the non-performing party shall be
excused from further performance or observance of the obligation(s) so affected
for as long as such circumstances prevail and such party continues to use its
best efforts to recommence performance or observance whenever and to whatever
extent possible without delay. Any party so delayed in its performance shall
immediately notify the party to whom performance is due by telephone (to be
confirmed in writing within two (2) business days of the inception of such
delay) and describe in reasonable detail the circumstances surrounding such
delay.
10.2. If any event under Section 11.1 substantially prevents, for more than
thirty (30) consecutive days, the performance of the Services necessary for the
conduct of those business functions, at its option, either party may elect, by a
written notice, to terminate this Agreement without liability to the other
party.
ARTICLE 11 TERM OF AGREEMENT.
The term of this Agreement shall become effective on August 28, 2004, and shall
remain in effect for a period of 3 (three) years from such date, and thereafter
shall be automatically extended for successive periods of 1 (one) year each,
unless either party shall have otherwise notified to the other party in writing
at least six (6) months prior to the expiry of this Agreement or any extension
thereof.
ARTICLE 12 TERMINATION.
12.1. Termination by Breach. In the event of any material breach by either
party hereto (the "defaulting party"), and if such breach is rectifiable, the
defaulting party's failure to rectify such breach within thirty (30) days after
the other party hereto (the "non-defaulting party") giving written notice to the
defaulting party, the non-defaulting party may immediately terminate this
Agreement by giving written notice to the defaulting party.
12.2. Upon written notice to the defaulting party, the non-defaulting party may
immediately terminate this Agreement at any time upon the occurrence of any or
more of the following events: (i) attachment, provisional attachment or
provisional disposition, or commencement of any proceedings for bankruptcy,
civil rehabilitation, corporate rehabilitation, corporate
adjustment or special liquidation ; (ii) dishonor of notes or checks, or
disposition to suspend transactions with banks is announced by the clearing
house; (iii) announcement of default of tax payments due; (iv) suspension of
payment, (v) suspension of business or (vi) material change in the majority
shareholders in or control over one party.
ARTICLE 13 ASSIGNMENT AND DELEGATION.
Neither party shall assign or transfer this Agreement or its rights under this
Agreement without prior written consent by other party.
ARTICLE 14 INDEPENDENT CONTRACTOR.
The relationship established between the parties is and shall always be that of
an independent contractor, and nothing herein contained shall be construed to
give to either party any right as an employee, agent, partner or joint venture
for or with the other party or to entitle either party to control in any manner
the conduct of the other party's business.
ARTICLE 15 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto as to
the subject matter of this Agreement and shall supersede any written or oral
discussion or any other agreement between the parties concurrent with or prior
to the date of this Agreement.
ARTICLE 16 GOOD FAITH DISCUSSION.
Both parties shall discuss in good faith and exert best efforts to settle any
disputes amicably as to the matters not provided for herein or any doubt as to
interpretation of the provisions of this Agreement.
ARTICLE 17 DISPUTE RESOLUTION.
Any dispute arising out of or in connection with this Agreement shall be settled
by arbitration, unless such dispute is not resolved in good-faith discussion as
provided in the preceding article. The arbitration shall be held in Tokyo,
Japan, in accordance with the laws of Japan. The award of such arbitration
shall be final and binding upon the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement.
Exhibit
Statement of Work
GP Net Service
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1. Authorization.
Relay authorization request received from API to card companies pursuant to the
sales transacted by card at the merchants, and return approval/disapproval from
card issuer to API.
2. Settlement
Relay settlement data received from API to Acquirers in accordance with the
agreement between GPN and Acquirers.
API Service
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Transmit card transaction data for authorization and settlement to GPN in
accordance with the format provided in GPNET Document.
