DATED May 1, 2004
---------------------
DFS OKINAWA K.K.
AND
ASIA PAYMENTS, INC.
____________________________________________
SYSTEM DEVELOPMENT AND
SERVICES AGREEMENT
____________________________________________
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
THIS AGREEMENT is made as of May 1, 2004 ("Effective Date")
BETWEEN:
(1) DFS OKINAWA K.K. a Japanese corporation ("DFS"); and
(2) ASIA PAYMENTS, INC., a Delaware corporation with its principal office
located at 000 X. Xxxx Xxxxxx Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx, X.X.X
("API").
WHEREAS:
(A) API is in the business of developing computer system and software
applications enabling acceptance and settlement of credit card payment
transactions; and
(B) DFS and API desire to enter into a business relationship pursuant to which,
among other things, API will develop a system according to DFS
specifications and guidelines to authenticate credit card payment by DFS's
customers (and the customers of certain DFS affiliates), as more
particularly described in Schedule 1 ("the System").
NOW THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the parties agree as follows:
1. DEVELOPMENT OF SYSTEM
1.1 Immediately after the Effective Date, both parties shall negotiate in good
faith and use commercial best efforts to perform their respective
obligations under this Agreement.
1.2 All System development works to be undertaken by API will be substantially
completed so as to permit commercial operation according to the features,
operating and other performance parameters of the System as may be
reasonably necessary or agreed between API and DFS ("System
Specifications") not later than 1 July, 2004 or other date mutually agreed
by the parties (the "Service Commencement Date"). The System Specifications
shall include, but not be limited, to those specified in Schedule 2
attached hereto.
1.2 From time to time as appropriate in the course of the development
activities to be undertaken pursuant to this Agreement, each of API and DFS
shall provide the other party (and their nominees) with additional
technical or other information to the extent the other party reasonably
deems necessary for such other party to perform obligations expressed or
contemplated hereunder, or such other obligations as may be ancillary or
incidental to express obligations.
1.3 Unless otherwise specified herein, each party shall bear any and all of its
own costs and expenses incurred in connection with its obligations under
this Agreement or at law.
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
2. SETTLEMENT SERVICES
2.1 Immediately following: (a) the completion of the System in accordance with
the System Specifications; and (b) the acceptance of the System following
user testing, API shall make available to DFS the settlement service as
described in Part I of Schedule 3 for the duration of this Agreement
("Settlement Services").
2.2 The availability of Authorisation and Sales Capture applications (as
described in Schedule 1) of the Settlement Services for DFS's use shall,
during any calendar month, be not less than 98% of the time (based on 24
---
hours per calendar day) ("Service Level Commitment"), save for scheduled
maintenance or scheduled downtime ("Maintenance"), or failure of any of
DFS's equipment that is not due to any intentional or negligent act or
omission. Any Maintenance must be agreed in writing by DFS and API, at
least fourteen calendar days prior to the contemplated event and DFS may
not unreasonably condition, delay or withhold agreement. For the avoidance
of doubt any Maintenance must be carried out and completed using all
reasonable haste. For the purposes of this Agreement, the Service Level
Commitment shall be incontrovertibly deemed to be a material obligation of
API under this Agreement.
2.3 Subject to API performing its obligations under this Agreement, DFS shall
pay API the service fees as described in Part II of Schedule 3. In
addition, unless otherwise specified in Schedule 3, DFS will, within 15
calendar days of receiving an invoice, pay or reimburse API for:
(a) reasonable travel expenses incurred by API's personnel;
(b) reasonable out of pocket expenses incurred by API's personnel whilst
travelling; and
(c) all sales taxes, value added taxes and goods and services taxes,
provided API obtains DFS's prior written approval for all individual travel
expenses exceeding US$2000 and individual out of pocket expenses exceeding
US$150, the relevant expenses or taxes are incurred by API and its
personnel in good faith in the course of API performing its obligations
under this Agreement, and that original documentary evidence, reasonably
satisfactory to DFS, is provided with any corresponding invoice that API
may be entitled to issue from time to time.
3. INTELLECTUAL PROPERTY RIGHTS
(a) All intellectual property and related rights in and to technical
information of either party which is provided to the other party in
the course of the development of the System or its portion hereunder
shall continue to belong to such providing party.
(b) Each party ("First Party") shall indemnify and hold the other party
("Second Party") harmless from: any (i) claims by; and (ii) damages
awarded to, a third party where that third
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
party's intellectual property rights have been infringed by reason of any
act, omission or breach of the First Party, and all costs and expenses
reasonably incurred by the Second Party.
4. GENERAL
4.1 Confidentiality
(a) Confidential Information. "Confidential Information" means any
confidential technical data, trade secret, know-how or other
confidential information disclosed by any party hereunder in writing,
orally, or by drawing or other form which must be marked by the
disclosing party as "Confidential" or "Proprietary". If such
information is disclosed orally, or through demonstration, in order to
be deemed Confidential Information, it must be specifically designated
as being of a confidential nature at the time of disclosure and
reduced in writing and delivered to the receiving party within ten
calendar days of such disclosure.
(b) Exclusions. Notwithstanding the foregoing, Confidential Information
shall not include information which:
(i) is known to the receiving party at the time of disclosure or
becomes known to the receiving party without breach of this
Agreement;
(ii) is or become publicly known through no wrongful act of the
receiving party or any subsidiary of the receiving party;
(iii) is rightfully received from a third party without restriction on
disclosure;
(iv) is independently developed by the receiving party or any of its
subsidiary;
(v) is furnished to any third party by the disclosing party without
restriction on its disclosure;
(vi) is approved for release upon a prior written consent of the
disclosing party;
(vii) is disclosed pursuant to judicial order, requirement of a
governmental agency or by operation of law.
(c) Nondisclosure. The receiving party agrees that it will not disclose
any Confidential Information to any third party and will not use
Confidential Information of the disclosing party for any purpose other
than for the performance of the rights and obligations hereunder
during the term of this Agreement and indefinitely thereafter, without
the prior written consent of the
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
disclosing party. The receiving party further agrees that Confidential
Information shall remain the sole property of the disclosing party 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 hereunder
unless otherwise expressly provided herein.
(d) Return of Confidential Information. Upon the request of the disclosing
party, the receiving party will promptly return all Confidential
Information furnished hereunder and all copies thereof.
(e) Publicity. Neither party shall disclose any of the specific terms of
this Agreement to any third party without the prior written consent of
the other party, which consent shall not be withheld unreasonably.
4.2 Term and Termination.
(a) This Agreement shall become effective on the Effective Date. API must
commence performance of the Settlement Services upon the Service
Commencement Date and the obligations to perform and pay for such
services shall remain in force for one (1) year from the Service
Commencement Date and thereafter will be renewed automatically for
successive one (1) year terms.
(b) Either API or DFS may terminate this Agreement without cause by giving
to the other party six months' prior notice in writing. In the event
of the giving of such notice, the parties shall cooperate in good
faith to ensure a smooth transition to a successor service provider.
(c) Notwithstanding the above, either party may terminate this Agreement
with immediate effect, at its sole discretion, upon giving written
notice to the other party, in case:
(i) the other party defaults in the performance of any material
obligation hereunder, and if any such default is capable of and
cannot corrected within ninety calendar days after the defaulting
party receives written notice of such default from the
non-defaulting party; or
(ii) the other party files a petition in bankruptcy, or is adjudicated
bankrupt, or makes a general assignment for the benefit of
creditors, or becomes insolvent, or is otherwise unable to meet
its business obligations for a period of three consecutive
months; or
(iii) an event of Force Majeure (as defined in clause 4.5) lasts for
more than ninety consecutive calendar days or occurs on at least
ninety days in any consecutive period of one hundred and eighty
calendar days.
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
(d) Upon expiration or termination of this Agreement, all rights and
obligations hereunder shall terminate forthwith except the provisions
of clauses 3 and 4.
4.3 Exclusions.
(a) Except: (i) as expressly provided in this Agreement or as API may
expressly agree in writing from time to time; or (ii) as required by
law, API makes no other representation or warranty, express or
implied, regarding the System or the Settlement Services.
(b) Except for a breach of clause 4.1 or any breach due to intentional
misconduct or recklessness, no party will be liable to any other party
for indirect or consequential loss or damages, even if the relevant
party may have known or contemplated that such losses or damages could
be suffered.
4.4 Limitation of Liability. Except for any indemnities given under Clause
3(b), the liability of API shall be limited to, at the option of API,
performance of any Services which were not performed according to this
Agreement or the refunding of monies paid to API in respect of such
services. If API is liable to DFS 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, API shall not be liable for all events for
any damages, howsoever sustained by DFS, exceeding the total amounts paid
to API by DFS as Settlement Service Fees under this Agreement.
4.5 Force Majeure. Either party shall not be liable to the other for failure to
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. The party so prevented from performance shall,
however, use diligent efforts to resume performance.
4.6 Assignment. The parties shall not assign or transfer this Agreement, in
whole or in part, or any right or obligation hereunder 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 hereunder
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
4.7 Governing Law. This Agreement will be interpreted and enforced in
accordance with the laws of the Japan without reference to conflicts of law
principles.
4.8 Dispute Resolution. Each party will make reasonable best efforts to
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 executives. Either party may
send the other a request to negotiate. If the negotiation does not result
in resolution within 45 days of the notice, the parties shall endeavor to
resolve the dispute by mediation. Any dispute which remains unresolved 90
days after appointment of a mediator, or if the parties are unable to agree
on a
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
mediator or the mediation procedures, shall be resolved by binding
arbitration by a sole arbitrator in Tokyo, Japan. Judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction
thereof. 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.
4.9 Notice. Any notice required or permitted to be given under this Agreement
shall be delivered (i) by hand, (ii) by international commercial courier,
to the addresses set forth below. Notice so given shall be deemed effective
when received or if not received by reason or fault of addressee, when
delivered. Either party may change its address for notices by notice to the
other party.
If to DFS, to:
DFS Okinawa X.X.
Xxxx Ohsaki Kangyo Building
0-0-0 Xxxxxx
Xxxxxxxxx-xx
Xxxxx 000-0000, Xxxxx
If to API, to:
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
Fax: 0-000-000-0000
4.11 Waiver. Should either party fail to exercise or enforce any provision of
this Agreement or to waive any rights in respect thereto, such waiver or
failure shall not be construed as constituting a continuing waiver or a
waiver of any other right.
4.12 Severability. In the event that any provision or provisions of this
Agreement shall be held to be unenforceable, the parties shall renegotiate
those provisions in good faith to be valid, enforceable substitute
provisions which provisions shall reflect as closely as possible the intent
of the original provisions of this Agreement. If the parties fail to
negotiate a substitute provision, this Agreement will continue in full
force and effect without said provision and will be interpreted to reflect
the original intent of the parties.
4.13 Entire Agreement. This Agreement, including the Exhibit(s) referred to
herein and attached hereto sets forth the entire understanding of the
parties, and supersedes any prior agreement between or among the parties
with respect to the subject matter hereof. This Agreement shall not be
amended or modified except by written instrument signed by the duly
authorized representatives of the parties hereto.
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, effective as of the Effective Date.
DFS OKINAWA K.K. ASIA PAYMENTS, INC.
By______________________
Xxxxxx Xxxxxxxx By______________________
Representative Director Name:
Title:
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
SCHEDULE 1
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System
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1. Description
The System will (i) permit processing of credit card transactions; (ii)
will enable acceptance and settlement of JCB, Diner's Card, American
Express, MasterCard and VISA ("Charge Card") transactions; and (iii)
provide a complete and extensive range of customer report data including,
but not limited to, customer and merchant transaction histories.
2. API's responsibility
API will be responsible for: (i) establishing and maintaining such
hardware, software, systems (including, but not limited to the updating of
such hardware, software and/or systems as may be required from time to
time), binding and non-binding third party relationships, and any other
activity that may be ancillary or incidental to the foregoing and as may be
necessary to co-ordinate and promptly procure Authorisations, Sales Capture
and related transactions (i.e. Void, Credit, Refund); and (ii) informing
DFS in writing from time to time of the locations to which Secured
Information must be transmitted, any necessary passwords, the format of
Secured Information and giving DFS such information as it may require or
reasonably request to obtain Authorisation, Sales Capture and related
Credit Card transactions.
3. DFS's responsibility
DFS will provide transaction data to API in a format acceptable to both
parties in respect of and concerning all Authorisations, Sales Capture
and/or other related Credit Card transactions. DFS will, in addition,
provide instructions as to which credit card transactions are to be
processed by API and such transactions are to be processed in which
currencies and in which jurisdictions as DFS may require from time to time.
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
SCHEDULE 2
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System Specifications
[GRAPHIC REDACTED]
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
SCHEDULE 3
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Part I- Settlement Services
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API shall process credit card transactions for DFS in such currencies as agreed
between the parties from time to time and arrange settlement with banks to be
designated by DFS from time to time.
API will perform Authorisation, Sales Capture, and related Credit Card
transactions and other related activities as described in Schedule 1.
Part II- Settlement Service Fees
--------------------------------
1. [Redacted]
2. Per Transaction Fee
[Redacted] for each occasion there is an Authorisation, Authorisation and
Sales Capture, Sales Capture, Disbursement, Refund, Credit or Void
transaction sent to API by DFS for follow on processing ("Activity").
Part III - Other Services
-------------------------
All other services not expressly agreed as of the Effective Date, that API
may be willing to perform for DFS , will be charged at the rate of
[Redacted] per hour in addition to reimbursement for travel and out of
pocket expenses reasonably incurred by API or API personnel, unless
otherwise agreed in writing by the parties. For the avoidance of doubt,
such services will include hosting, customisation or additional development
work, ongoing maintenance and training. API must: (a) obtain DFS's prior
written approval for all individual travel expenses exceeding [Redacted]
and individual out of pocket expenses exceeding [Redacted]; (b) incur such
expenses in good faith in the course of API performing its obligations
under this Agreement; and (c) furnish original documentary evidence,
reasonably satisfactory to DFS, with any corresponding invoice that API may
be entitled to issue from time to time.))
Asia Payment Systems, Inc.
000 0xx Xxxxxx #0000
Xxxxxxx, XX 00000
Tel: 0-000-000-0000 Fax: 0-000-000-0000
