SETTLEMENT SERVICES AGREEMENT
This SETTLEMENT SERVICES AGREEMENT is made the _______ day of March 2000, by and
BETWEEN DATABANK INTERNATIONAL LIMITED, a St. Kitts International Business
Corporation, which is a wholly-owned subsidiary of DIGITAL COURIER TECHNOLOGIES,
INC., (DCTI) a Delaware Corporation, AND the said DIGITAL COURIER TECHNOLOGIES
INC., a Delaware Corporation (hereinafter collectively referred to as
"DATABANK") of the One Part AND ST. KITTS NEVIS ANGUILLA NATIONAL BANK LIMITED
of Central Street, Basseterre, St. Kitts (hereinafter referred to as "SKNANB" of
the Other Part
DEFINITIONS
a) "Merchant Settlement Services" - means the providing for payment to
business of charges created by the holders of credit cards issued by VISA
or MasterCard and all related services.
b) "Person" means any individual, firm, company, corporation or other entity
of any kind, which may engage in business in any part of the world other
than SKNANB and DATABANK.
c) "Basis Point" means one hundredth (1/100th) of one (1) percent,
d) "Visa" means visa international incorporated.
e) "MasterCard" means MasterCard International Inc.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and for other good and valuable consideration, the receipt
adequacy and legal sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, HEREBY AGREE as follows:
1. DUTIES OBLIGATIONS AND REPRESENTATIONS OF SKNANB
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1.1 Services. SKNANB shall perform all of the banking and settlement
services required or reasonably requested by DATABANK for DATABANK's
business of processing and managing accounts for DATABANK to use and
for mainlining reserves and making distributions to merchants and
transferring funds as reasonably directed by DATABANK ("the
Services").
1.2 Maintaining Facilities. Personnel, etc SKNANB shall maintain the
knowledge, facilities, resources, personnel, licences, permits,
approvals and certifications necessary to perform its obligations
under this Agreement.
2. DATABANK'S OBLIGATIONS
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2.1 PAYMENT BY DATABANK TO SKNANB FOR SERVICES. Each week during the
Term (as defined in Article 3 of this Agreement) DATABANK shall pay
SKNANB 50 Basis Points (0.50%) on Gross Sales which flow through
SKNANB for DATABANK's Block of Merchants.
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2.2 BOOKKEEPING AND SETTLEMENT INFORMATION. DATABANK shall be fully
responsible for all bookkeeping and calculating and maintaining
settlement information for DATABANK's merchant accounts. Except as
set forth In Section 1.1 of this Agreement, SKNANB shall have no
responsibility for processing managing or servicing DATABANK's
merchant accounts.
3. TERM
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3.1 This Agreement shall be effective as of the date first written above
and shall remain in effect until terminated. DATABANK shall have the
right to terminate this Agreement at any time upon providing Bank
with ninety (90) days prior written notice of its intent to
terminate this Agreement. SKNANB shall have the same right.
4. CONFIDENTIALITY
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4.1 Unless required by law, regulation or Court Order, DATABANK and
SKNANB agree that they shall not at any time during this Agreement
or following the termination of this Agreement disclose to any
person except agents, accountants or Attorneys of DATABANK and
SKNANB, any data information or knowledge regarding the Settlement
Services and shall by contract prohibit its directors, officer,
employees or agents or any other person who under the terms of this
Agreement obtain any such data information or knowledge from
disclosing the same to any other person.
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5. INDEMNIFICATION
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5.1 DATABANK and SKNANB shall hold each other harmless and shall
indemnify the other party its directors and officers from all
liability which they or any of them may incur to either party
arising or resulting from its proven breach of any of the provisions
of this Agreement or from proven damages as a result of disclosure
of its directors officers employees or agents to any person of any
data information or knowledge relating to the settlement services
and from all claims suits demands proceedings damages costs and
expenses therefrom.
6. ADDITIONAL INDEMNIFICATION
--------------------------
6.1 DCTI's INDEMNIFICATION. DCTI shall indemnify SKNANB and its
directors, officers, employees and agents from and against any and
all claims, liabilities, losses or damages (including reasonable
attorney fees, expert witness fees, expenses and costs of
settlement) arising out of or with respect to DCTI's negligence,
intentional misconduct or breach of this Agreement provided that
DCTI's obligation to Indemnify SKNANB and its directors, officers,
employees and agents shall not apply to the extent that the claim,
liability, loss or damage arises out of SKNANB's negligence,
misconduct or breach of this Agreement. Without limiting the
generality of the foregoing, DCTI agrees to indemnify SKNAN13 and
its directors, officers, employees and agents from and against any
and all retrieval fees, chargebacks, chargeback fees, VISA and/or
MasterCard fees, fines and penalties caused by or attributable to
DATABANK's Block of Merchants.
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6.2 FINES AND PENALTIES. Without limiting the generality of the
foregoing SKNANB reserves the right at its sole discretion to debit
DATABANK's Merchant Account In the amount of fines and penalties
assessed or assessable by VISA and or MasterCard and payable by
DATABANK or either of its components in accordance with the terms of
this Agreement PROVIDED only that VISA or MasterCard debit
documentation will be provided to DATABANK prior to the deduction.
Notice under this section will be sufficiently given if sent via
confirmed facsimile transmission and shall be effective as from the
time of said transmission.
6.3 NOTIFICATION. In the event a claim, suit or proceeding by a third
party for which indemnification may be available under this
Agreement is made or riled against a party or any Entity, party
against which the claim, suit or proceeding is made (the
"Indemnified Party") shall promptly notify the other party (the
"Indemnifying Party") in writing of the claim, suit or proceeding,
The Indemnifying Party, within thirty (30) days, or such shorter
period as is required to avoid any prejudice in the claim, suit or
proceeding after the notice, may elect to defend, compromise or
settle the third party claim, suit or proceeding at its expense. In
any third party claim, suit or proceeding, which the Indemnifying
Party has elected to defend, compromise or settle, the Indemnifying
Party shall not after the election be responsible for the expenses,
including Counsel fees, of the Indemnified Party but the Indemnified
Party may participate therein and retain Counsel at its own expense.
In any third party claim, suit or proceeding the defence of which
the Indemnifying Party shall have assumed, the Indemnified Party
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will not consent to the entry of any judgment or enter into any
settlement with respect to the matter without the consent of the
Indemnifying Party and the Indemnifying Party will not consent to
the entry of any judgment or enter into any settlement affecting the
Indemnified Party to the extent that the judgment or settlement
involves more than the payment of money without the written consent
of the Indemnified Party. The Indemnified Party shall provide to the
Indemnifying Party all the information, assistance and authority
reasonably required in order to evaluate any third party claim, suit
or proceeding and effect any defence, compromise or settlement.
6.4 CLAIMS PERIOD. Any claim for Indemnification under this Agreement
must be made prior to the earlier of:
(1) Twelve (12) months after the party claiming indemnification
becomes aware of the event for which indemnification is
claimed; or
(2) Twenty-four (24) months after the earlier of the termination
of this Agreement or the expiration of the Term of this
Agreement.
7. VISA AND/OR MASTERCARD COLLATERAL REQUIREMENTS
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7.1 DCTI acknowledges that the additional volume that will pass through
SKNANB'S VISA BIN and MasterCard ICA as a result of Databank's Block
of Merchants Volume will result in VISA and/or MasterCard requesting
additional collateral from SKNANB. DCTI agrees to work with SKNANB
to meet or reduce collateral call amounts in compliance with VISA or
MasterCard requests as they pertain to Databank's Block of
Merchants.
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8. ADDENDUMS
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8.1 The parties hereto acknowledge that SKNANB may from time to time be
required to accede to terms and conditions dictated, directed,
demanded or required by VISA and or MasterCard and it is hereby
expressly agreed between SKNANB and DATABANK that SKNANB will be
entitled to unilaterally execute and add addendums to this Agreement
to give effect to the terms and conditions dictated, directed,
demanded or required by VISA and or MasterCard after notifying
Databank and or DCTI.
8.2 Any addendum to this Agreement will be deemed to form a part of this
Agreement on the date on which notice under the provisions of Clause
8.1 is given to Databank and or DCTI and will have effect and bind
the parties hereto from the said date.
8.3 In the event that an Addendum is added to this Agreement under the
terms of this Agreement SKNANB shall promptly forward to Databank
and or DCTI a copy of this Agreement with the Addendum.
9. PROCEDURE FOR ESTABLISHING MERCHANT ACCOUNTS
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9.1 Each Merchant will have to complete the "Merchant Processing
Agreement" and the "Merchant Accounts Application Document" and
submit them to SKNANB for approval.
9.2 SKNANB's approval of the merchants will not be unreasonably
withheld.
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9.3 SKNANB will then complete the "Merchant Sign On Form" which will be
sent to NDC e-commerce (National Data Corporation).
9.4 SKNANB will register the Merchants with VISA and/or MasterCard.
10. MISCELLANEOUS
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10.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter
hereof and supersedes all negotiations, representations, prior
discussion and preliminary agreements between the parties relating
to the subject matter hereof.
10.2 ASSIGNMENT. No party may assign its rights hereunder or delegate the
performance of Its duties, obligations and undertakings hereunder
without the express written consent of the party to this Agreement
holding the benefit of such duties, obligations and undertakings;
provided, however, that without such consent DATABANK may assign
this Agreement in connection with the transfer or sale of all or
substantially all of its assets or business or its merger or
consolidation with another company.
10.3 BINDING EFFECT. This Agreement shall be binding upon shall inure to
the benefit of the parties hereto and their respective successors
and assigns.
10.4 NOT1CES. Any notice required to be given hereunder shall be written
and shall be served on the party to whom it is given by delivering
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same at the corporate registered office of such party or by
confirmed facsimile transmission.
10.5 MODIFICATION. Save as herein agreed upon, this Agreement may be
varied only by further written agreement executed by or on behalf of
both parties hereto.
10.6 SEVERABILITY. If any term or provision of the Agreement shall, to
any extent, be determined by a court of competent jurisdiction to be
void, voidable or unenforceable, such void voidable or unenforceable
term or provision shall not affect any other term or provision of
this Agreement.
10.7 CONSTRUCTION. The article and section headings contained in this
Agreement are for purposes of reference only and shall not limit,
expand or otherwise affect the construction of any provision hereof.
As used herein, all words in any gender shall be deemed to include
the masculine, feminine or neuter gender, all singular words shall
include the plural, and all plural words shall include the singular,
as the context may require.
10.8 GOVERNING LAW. This Agreement shall be governed by the Laws of the
Federation of Saint Christopher and Nevis. The Courts of the Eastern
Caribbean Supreme Court, that is to say, the High Court of Justice
and the Court of Appeal shall have exclusive jurisdiction in the
interpretation of the said Agreement or in determining any dispute
or matter relating to this Agreement. Nothing in the foregoing shall
be deemed to exclude the right of either party to Appeal to Her
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Majesty's Judicial Committee of the Privy Council as it sits in
London, England, or to any higher Court however constituted, in
accordance with the provisions for Appeal to such higher Court
outlined in the Constitution of the said Federation.
11. RECITALS AND EXHIBITS
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11.1 All factual Recitals set fort herein shall be considered part of the
Agreement. Ail Exhibits attached to this Agreement are expressly
incorporated herein and made a part hereof as fully as though they
were completely set forth herein.
12. COOPERATION
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12.1 The parties agree to execute and deliver such additional documents
and instruments and to perform such additional acts as the party may
reasonably request or as may be reasonably necessary or appropriate
to effectuate, consummate, or perform any of the terms, provisions
or conditions of this Agreement.
IN WITNESS WHEREOF the Common Seal of DATABANK INTERNATIONAL LIMITED is affixed
the day of March 2000 and the Common Seal of DIGITAL COURIER TECHNOLOGIES INC.
is affixed the _____ day of March 2000 and the Common Seal of ST KITTS NEVIS
ANGUILLA NATIONAL BANK LIMITED is affixed the day of March 2000.
THE COMMON SEAL of DATABANK )
INTERNATIONAL LIMITED was )
hereunto affixed by ) By:/s/ signature illegible
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its Secretary and )
a Director of the said Company ) By:/s/ signature illegible
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THE COMMON SEAL of DIGITAL )
COURIER TECHNOLOGIES INC. )
was hereunto affixed by ) By:/s/ signature illegible
) -----------------------
a Director of the said Company )
and )
a Director of the said Company )
before and in the presence of:-
THE COMMON SEAL OF ST KITTS )
NEVIS ANGUILLA NATIONAL BANK) ) By:/s/ Malcolm P. Holdip
LIMITED was hereunto affixed by ) ---------------------
MALCOLM HOLDIP, its Assistant ) Malcolm P. Holdip
Secretary in the presence of )
)
and )
)
two of its Directors )
before and in the presence of:-