DISTRIBUTOR ATM PROCESSING AGREEMENT

 

 

                    DISTRIBUTOR ATM PROCESSING AGREEMENT

 

      THIS   AGREEMENT   is made and   entered   into as of the date set forth below

(the "Effective   Date"),   by and between GENPASS   TECHNOLOGIES,   LLC, a Delaware

limited liability company   ("Genpass"),   and NATIONWIDE MONEY SERVICES, A Global

Axcess Company, a Nevada incorporated company ("Customer").

 

      WHEREAS,   Customer   wishes to: (i)   Implement   all   Customer   terminal and

terminal processing for all ATM terminals on to the Genpass platform; and

 

      (ii) engage Genpass to be the exclusive provider (with certain exceptions)

of certain   electronic   funds   transfer   services to Customer for the   locations

listed in Exhibit H attached hereto, and Genpass agrees to provide such services

as more fully described herein;

 

      WHEREAS,   Genpass has agreed to *** in connection with *** as set forth in

Exhibit E attached hereto; and

 

      WHEREAS,    Genpass   has   agreed   to   provide   ***    connection    with   ATM

implementation, as set forth in Exhibit D attached hereto.

 

      NOW   THEREFORE,   in   consideration   of the mutual   covenants   and promises

contained herein, Genpass and Customer agree as follows:

 

                               I. DEINITIONS

 

      For   purposes of this   Agreement,   certain   terms used herein with initial

letters   capitalized   shall   have the   meanings   set forth in Exhibit A attached

hereto.

 

               II. SERVICES PROVIDED BY GENPASS; USE OF THE SYSTEM

 

      2.1 Services Provided by Genpass.   Genpass shall provide Customer with the

data   processing   and other related   services   described and listed in Exhibit B

attached hereto (the "Services"). Genpass agrees to process transactions for all

ATMs on Exhibit H, including any attached   Schedules,   provided such ATMs are in

compliance   with all   Network   rules,   regulations   and other   requirements   and

Network   approved   suspension of   obligations.   Customer agrees to indemnify and

hold Genpass harmless from and against any damages,   losses,   costs and expenses

incurred by Genpass as a result of its   agreement   to accept   such   transactions

from those ATM's operating under the approved suspension of obligations.

 

      2.2   Availability   of System.   The   System   will be   available   for use by

Customer   twenty-four   (24) hours a day,   seven (7) days per week,   except   when

maintenance   is   necessary or when events   beyond the control of Genpass   occur,

including a force   majeure   event as   described   in Section   9.1.   Genpass   will

provide   Customer with advanced   notice of scheduled   maintenance.   Genpass will

report all instances of System interruption to Customer within four (4) hours of

occurrence. To the extent Customer installs the electronic monitoring process of

Genpass   and an ATM is capable of   providing   status   messages,   individual   ATM

outages will be reported to Customer, or Customer's   designated   representative,

pursuant   to the   standard   reporting   structure   of the   electronic   monitoring

process.

 

     2.3 Training.   Genpass shall train   Customer's   personnel in the use of the

System and Customer's personnel will be available for training in the use of the

System by Genpass at reasonable times and places mutually agreed upon by Genpass

and Customer.

 

 

                                       1

<PAGE>

 

       2.4 Reports.   Genpass agrees to provide   Customer with daily [and monthly]

reports of services provided at Customer's Terminals.

 

      2.5 Operating Instructions. Genpass may from time to time provide Customer

with   Operating   Instructions   governing the   operation of the System.   Customer

agrees to comply with all such Operating   Instructions   as may be in effect from

time to time, including but not limited to, the instructions   attached hereto as

Exhibit   C.   In the   event   any   nonconformity   exists   between   such   Operating

Instructions and the operating rules of any Network,   the terms of the Operating

Instructions   shall control.   Genpass agrees to reimburse Customer for any costs

and expenses   (collectively,   "Costs")   incurred by Customer which result from a

conflict between the Operating Instructions and any Network rules, when Customer

complies with the Operating Instructions.

 

      2.6 Security Procedures.   In addition to any security procedures from time

to time   set   forth   in the   Operating   Instructions,   Customer   shall   exercise

prudence   and   institute    appropriate    security   procedures   in   assigning   or

distributing   passwords   or   other   codes   that   allow   access   to the   Terminal

Management System.

 

                     III. EXCLUSIVITY AND SCOPE OF AGREEMENT

 

      3.1   Exclusivity.   Customer   agrees to use Genpass or its designees as the

exclusive   provider   of the   Services   during   the   Term   for its   existing   ATM

locations,   and for any   additional   ATM   locations   it adds   during   the   Term.

Provided, however, if Customer acquires any ATM's from a third party for which a

processing   agreement is in place with a processor other than Genpass,   Customer

agrees   to give   Genpass   an   opportunity   to make an   offer   to take   over   the

processing services   therefore.   Customer may accept or reject any such offer in

its sole and absolute   discretion,   unless Genpass offers to pay all termination

and   deconversion   fees to the Customer in full. In the event Genpass does offer

to pay termination and deconversion   fees in full and is in compliance with this

Agreement,   Customer   must   accept the offer of   Genpass   and such ATMs shall be

governed   by the terms of this   Agreement.   If Customer   maintains a   processing

agreement for acquired ATMs with third party,   Customer   agrees those   terminals

will be   converted   to Genpass   upon   expiration   of the term of the third party

processing agreement. Customer is responsible to provide a termination notice to

facilitate   conversion to Genpass System at the end of the initial term. For the

purposes of this Article   III,   "Customer"   shall   include   distributors,   sales

representatives and employees of Customer and any affiliate thereof.

 

      3.2 Scope of Agreement.   This Agreement   sets forth the respective   rights

and   obligations   of Customer   and   Genpass   with   respect to Genpass   providing

electronic funds transfer   services to (i) Customer (and its affiliates) for all

ATMs owned, leased or in the possession or control of and placed by Customer for

Customer's   own benefit;   and (ii) with respect to ATMs acquired by Customer for

resale to third parties,   whether directly or by a distributor   during the Term,

in each case, except as set forth in Section 3.1 hereof.

 

                        IV. INTERCHANGE CLEARING ACCOUNTS

 

      In order to facilitate   the   settlement of monetary   transactions   and the

payment   of all fees   incurred   hereunder,   Customer   agrees   to   establish   and

maintain a Clearing Account with a financial institution   acceptable to Genpass.

Customer   agrees to   maintain   at all times in such   Clearing   Account an amount

sufficient to pay all fees incurred hereunder, including the fees established in

Exhibit B attached   hereto.   Customer   agrees to promptly   notify the   financial

institution of any errors or differences in settlement of accounts.

 

 

                                       2

<PAGE>

 

                                     V. FEES

 

      5.1 Processing Fees. Customer shall pay Genpass for any and all processing

services   provided under this Agreement in accordance   with the Services and Fee

Schedule   attached   hereto as Exhibit B. Any amounts   remaining   unpaid for more

than thirty   (30) days after such   amounts   came due shall bear   interest at the

rate of 1.5% per month (but in no event to exceed the highest   applicable lawful

rate of   interest).   An invoice will be provided on or about the fifth   business

day of each month for the previous month's   activity.   A corresponding ACH debit

will be processed on or about the 10th   business day to an account   specified by

customer.   All fees   reflected   on the invoice   presented   to Customer   shall be

deemed accurate and final unless   Customer   delivers a written notice to Genpass

disputing any such amounts within ninety (90) days after   Customer's   receipt of

such invoice from   Genpass.   Genpass shall   provide   Customer   with   provisional

credit   for that   portion of a   previous   invoice   which   Customer   disputes   as

inaccurate in good faith ("Disputed Amounts"), provided that: (a) Customer shall

timely pay the   invoice;   (b)   Customer   shall   provide   Genpass   with a written

statement that reasonably sets forth Customer's   position regarding the Disputed

Amounts   within the ninety (90) days after   Customer's   receipt of such invoice;

and (c) Customer shall   cooperate   fully with Genpass's   investigation   into the

Disputed   Amounts.   If Genpass and Customer   determine in their   respective good

faith   business   judgment   that the Disputed   Amounts   were billed   erroneously,

Genpass shall correct the error in a subsequent invoice. If Genpass and Customer

determine in their   respective good faith business   judgment,   that the Disputed

Amounts were   correctly   billed after those   Disputed   Amounts were   credited to

Customer,   Customer   shall pay such Disputed   Amounts to Genpass within ten (10)

business   days of the   determination.   If Customer   disagrees   with such Genpass

determination,   Customer   shall notify   Genpass within ten (10) business days of

its intention to submit such matter to litigation.

 

      5.2 Taxes.   All charges   hereunder are   exclusive of   applicable   federal,

state or local taxes, and Customer shall pay, or reimburse Genpass for, any such

taxes that may be levied upon the services rendered under this Agreement,   other

than taxes levied on or based upon Genpass' ownership of property or net income.

 

      5.3 Fee   Changes.   Genpass   may not   increase   the fees   listed in the fee

schedules   contained   in   Exhibit B   attached   hereto for one (1) year after the

Effective   Date.   After the   expiration   of such year,   Genpass   may within each

subsequent   one (1) year   period   increase   the fees   (other   than the   Terminal

Processing   Fees) set forth in Exhibit B after   having   given   thirty   (30) days

prior notice of such increase to Customer.   Provided, that such increase may not

exceed the increase in the Consumer Price Index for all Urban   Consumers for the

US City Average for all Items   1982-1984   Equal 100 Base as reported by the U.S.

Department of Labor's Bureau of Labor Statistics.   The Terminal   Processing Fees

shall be fixed as set forth in Exhibit B throughout the initial seven year term.

 

      5.4 Third Party Fees.   Customer shall pay Genpass for all third-party fees

and charges applicable to the services provided to Customer as designated on the

periodic invoice provided to Customer. Genpass reserves the right to immediately

reflect any   increases   or   decreases in the amounts of such fees and charges in

the   amounts to be paid by   Customer   hereunder,   provided   that   Genpass   first

delivers to Customer   evidence of such   third-party fee increase.   Customer will

pay for all such   fees on a daily   basis,   or on such   other   periodic   basis as

Genpass   may choose by   electronic   fund   transfer   to Genpass   from   Customer's

Clearing   Account,   such electronic   fund transfers   being hereby   authorized by

Customer.   Genpass will provide Customer as much advance notice of such increase

prior to increase   being   assessed   to   Customer   as is possible   and based upon

notice from the third party.

 

      5.5 Surcharge   Revenue.   Genpass shall pay Customer the Surcharge   revenue

due to Customer daily, via ACH.   Customer may designate that some or all of such

Surcharge revenue shall be directed to a customer of Customer.

 

      5.6 Interchange Revenue.   Genpass shall settle all daily networks and STAR

on the ***   business   day of each month;   settle PLUS on the *** business day of

each month and settle NYCE on the *** business day of each month.

 

 

                                        3

<PAGE>

 

      5.7   Pre-Implementation   Fee   Reimbursement.   Genpass agrees to deliver to

Customer   contemporaneously   herewith a *** payment,   in   immediately   available

funds equal to $***. Such payment is intended to reimburse Customer for expenses

incurred by   Customer,   prior to the date hereof as   described in more detail in

Exhibit E.

 

      5.8 Implementation Fees. Genpass agrees to pay to Customer the amounts set

forth in Exhibit D pursuant to the schedule set forth therein. Such payments are

intended to reimburse the additional   costs of ATM   implementation   that will be

incurred by Customer after the date hereof.

 

            VI. TRADE SECRETS; CONFIDENTIAL INFORMATION; SERVICE MARKS

 

      6.1 Trade Secrets.   The System consists of computer programs,   procedures,

forms,   reports and other related materials that have been acquired or developed

by Genpass through the expenditure of a great amount of time,   effort and money.

Customer   acknowledges   that the   foregoing are trade secrets which are of great

value to Genpass,   and disclosure to others of any of the programs,   procedures,

forms and other related materials with respect to the System will result in loss

and irreparable damage to Genpass.   Customer therefore agrees not to disclose to

others any   information   regarding the System,   except as required in the proper

performance of this Agreement.   All   specifications,   tapes,   programs and other

related   materials   developed in   connection   with this   Agreement   shall be the

property of Genpass and shall be returned   to Genpass   upon the   termination   of

this   Agreement.    Genpass   acknowledges   that   certain   information    regarding

Customer's business,   including information regarding its systems, processes and

potential   acquisition targets, is the confidential and trade secret information

of Customer.   Genpass   acknowledges   that disclosure of such   information   could

violate securities   regulations and agrees that any such disclosure to others of

any such   information   will result in loss and   irreparable   damage to Customer.

Genpass therefore agrees not to disclose to others any such information,   except

as required in the proper   performance   of this   Agreement   and then only in the

event that Genpass has secured the written agreement of the recipient thereof to

maintain the strict confidentiality of such information.

 

      6.2 Confidential   Information.   The Parties acknowledge that each may have

access to, or be provided with,   information or documentation,   which each Party

regards as confidential or proprietary. The receiving parties are referred to as

`Recipient'   and the party   providing the information is referred to as `Owner'.

Such information or documentation shall be dealt with as set forth below.

 

      (a) Definition of   Confidential   Information.   "Confidential   Information"

      includes both information of a commercial   nature and information   related

      to   customers   of the ATMs.   Confidential   Information   includes,   without

      limitation, the following whether now in existence of hereafter created:

 

            (1) any information of or about the Owner's   customers of any nature

      whatsoever,   and specifically including without limitation,   the fact that

      someone is a customer or prospective   customer of the Owner,   all lists of

      customers, former customers,   applicants and prospective customers and all

      personal or financial   information   relating to and   identified   with such

      persons ("Customer Information");

 

            (2) all information marked as "confidential" or similarly marked, or

      information   that the   Recipient   should,   in the   exercise of   reasonable

      business judgment, recognize as confidential;

 

            (3) all business,   financial or technical   information   of the Owner

      and any of the   Owner's   vendors   (including,   but not   limited to account

      numbers, and software licensed from third parties or owned by the Owner or

      its affiliates);

 

            (4) the Owner's   marketing   philosophy and   objectives,   promotions,

      markets,   materials,   financial   results,   technological   developments and

      other similar proprietary information and materials;

 

 

                                       4

<PAGE>

 

            (5) all   information   protected   by rights   embodied in   copyrights,

      whether   registered or   unregistered   (including   all   derivative   works),

      patents or pending patent applications, "know how," trade secrets, and any

      other intellectual property rights of the Owner or Owner's licensors;

 

            (6)   information   with   respect to   employees   of the Owner which is

      non-public,   confidential,   business   related,   or   proprietary in nature,

      including,    without   limitation,    names   of   employees,   the   employees'

      positions   within the Owner   company,   the fact that they are employees of

      the   Owner,    contact    information   for   employees,    personal    employee

      identification    numbers,   and   any   other   information   released   to   you

      regarding employees in the past and in the future; and

 

            (7) all notes, memoranda, analyses, compilations,   studies and other

      documents,   whether prepared by the Owner, the Recipient or others,   which

      contain or otherwise reflect Confidential Information.

 

(b)    Essential Obligation

 

      (1) Confidential Information must be held in confidence and disclosed only

to those   employees   or agents whose duties   reasonably   require   access to such

information.   Recipient must protect the Owner's Confidential   Information using

at least the same degree of care, but no less than a reasonable   degree of care,

to prevent the unauthorized use,   disclosure or duplication   (except as required

for backup   systems)   of such   Confidential   Information   as   Recipient   uses to

protect its own confidential information of a similar nature.

 

      (2) Because Genpass is part of a federally-regulated financial institution

that must comply with the safeguards for Customer   Information   contained in the

Gramm-Leach-Bliley   Act ("GLBA") and regulations   promulgated   pursuant to GLBA,

Customer must each establish appropriate measures designed to safeguard Customer

Information.   Specifically,   Customer must   establish and maintain data security

policies and procedures designed to ensure the following:

 

            - security and confidentiality of Customer Information; - protection

against   anticipated threats or hazards to the security or integrity of Customer

Information;

            -   protection   against   the   unauthorized   access or use of Customer

Information.

 

      (3)   Customer   must permit   Genpass to monitor and audit their   compliance

with this Section   during   regular   business   hours upon not less than 48 hours'

notice to the   Customer   and to provide   to Genpass   copies of audits and system

test results acquired by Customer in relation to the data security   policies and

procedures designed to meet the requirements set forth above.

 

(c) Compelled   Disclosure.   If Recipient is required by a court or   governmental

agency   having proper   jurisdiction   to disclose any   Confidential   Information,

Recipient   must   promptly   provide to the Owner notice of such request to enable

the Owner to seek an appropriate   protective   order.   In addition,   either Party

shall not be in breach of the   provisions   of   Article   VI in the event   that it

makes any   disclosure   that it   reasonably   believes is required to be disclosed

pursuant to requirements of any securities laws, rules or regulations.

 

(d)   Limited   Use of   Confidential   Information   and   Survival   of   Obligations.

Recipient may use the Confidential Information only as necessary for Recipient's

performance   hereunder   or   pursuant to rights   granted   herein and for no other

purpose.   Recipient's limited right to use the Confidential   Information expires

upon   expiration or termination   of this   Agreement for any reason.   Recipient's

obligations   of   confidentiality   and   non-disclosure    survive   termination   or

expiration for any reason of this Agreement.

 

(e) Disposition of Confidential Information. Recipient must develop and maintain

appropriate   security   measures   for the   proper   disposal   and   destruction   of

Confidential   Information.   Upon Expiration of Recipient's   limited right to use

the   Confidential   Information,   Recipient must return all physical   embodiments

thereof   to Owner   or,   with   Owner's   permission,   Recipient   may   destroy   the

Confidential Information. Recipient shall provide written certification to Owner

that Recipient has returned, or destroyed,   all such Confidential Information in

Recipient's possession.   Notwithstanding the foregoing, Recipient may retain one

archival   copy   of   Confidential   Information,   which   may   be   used   solely   to

demonstrate compliance with the provisions of this Section.

 

 

                                       5

<PAGE>

 

(f) Disclosure to Third Parties.   If disclosure of   Confidential   Information to

third parties is required or allowed under this Agreement, Recipient must ensure

that   such   third   parties   have   express   obligations   of   confidentiality   and

non-disclosure   substantially   similar   to   Recipient's   obligations   hereunder.

Liability for damages because of disclosure of   Confidential   Information by any

such third parties must be borne by Recipient.

 

(g)   Exclusions.   Except for   Customer(s)   information,   the term   "Confidential

Information"   excludes   any   portion   of such   information   that   Recipient   can

establish by clear and convincing evidence to have:

 

 

      (1)    been publicly known without breach of this Agreement;

 

      (2)    been known by Recipient   without any obligation of   confidentiality,

            prior to disclosure of such Confidential Information; or

 

      (3)    been   received   in good   faith   from a   third-party   source   that to

            Recipient's    reasonable    knowledge    rightfully    disclosed    such

            information; or

 

      (4)    been developed   independently by Recipient   without reference to the

            Owner's Confidential Information.

 

(h) Remedies.   If Recipient or any of its representatives or agents breaches the

covenants   set forth in this   Article VI,   irreparable   injury may result to the

Owner   or   third   parties   entrusting   Confidential   Information   to the   Owner.

Therefore,   the Owner's remedies at law may be inadequate and the Owner shall be

entitled   to   se