DATED May 1,
2004
---------------------
DFS OKINAWA K.K.
AND
ASIA PAYMENTS, INC.
____________________________________________
SYSTEM DEVELOPMENT AND
SERVICES AGREEMENT
____________________________________________
Asia Payment Systems, Inc.
800 5th Avenue #4100
Seattle, WA 98104
Tel: 1-206-447-1379
Fax: 1-206-470-1150
<PAGE>
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 704 N. King Street Suite 500, Wilmington, Delaware,
U.S.A
("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.
800 5th Avenue #4100
Seattle, WA 98104
Tel: 1-206-447-1379
Fax: 1-206-470-1150
<PAGE>
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.
800 5th Avenue #4100
Seattle, WA 98104
Tel: 1-206-447-1379
Fax: 1-206-470-1150
<PAGE>
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.
800 5th Avenue #4100
Seattle, WA 98104
Tel: 1-206-447-1379
Fax:
1-206-470-1150
<PAGE>
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
