National Toll Payment Services Private Company Limited by Shares General Terms and Conditions for Resellers Selling E-vignettes

Transcription

1 National Toll Payment Services Private Company Limited by Shares General Terms and Conditions for Resellers Selling E-vignettes Effective: 1 November 2014 Number of pages: 22 NTPS Plc. GTC for HD resellers page 1

2 List of contents 1 Definitions Name and address of the Service Provider Purpose, scope and term of the General Terms and Conditions Establishment of access points Operation Financial terms Settlement of accounts Customer Service Communication Other provisions Reseller s right of termination in the event of the Service Provider s unilateral amendments to the Agreement, Service Provider s termination right Settlement of disputes, legal remedies Confidentiality Force Majeure Liability and Indemnity Governing law Replacement Language of the GTC and the Cooperation Agreement, applicable law Annexes NTPS Plc. GTC for HD resellers page 2

3 Preamble Pursuant to Section 3(3) of GKM Decree No 36/2007, National Toll Payment Services Plc. (NTPS Plc., before the name modification: State Motorway Management Company Ltd.) sells e-vignettes and performs related services mostly by means of resellers. Having regard to the significant number of resellers, NTPS Plc. applies the following general terms and conditions to its agreements. In relation to the involvement of Resellers, NTPS Plc. shall have the following obligations: (a) to ensure that it uses the services of the Subcontractors in accordance with the Cooperation Agreement subject to the requirements of the relevant laws, and in particular of those pertaining to public procurement; (b) in relation to the Subcontractors agreements regulating the basic activities described in the Services and entered into after signing the Cooperation Agreement, as well as to the Resellers agreements, with the exception of those already made, to ensure that the rights and claims originating from the agreements benefit, and are assignable to, the HTA or the designated economic organisation, and that, in the event of termination of the agreements before the expiry of this Agreement, such agreements are lawfully terminable, without any indemnification obligation, by immediate effect as of the day of expiry. Having regard to the above, NTPS Plc. enters into agreements with the Resellers, and these GTC set out the terms and conditions of such agreements that are applicable uniformly to all Resellers. 1 Definitions Service Provider: Reseller: Subcontractor: End user: Decree: the operator specified in Section 2 of the GTC any natural or legal person or economic entity or other organisation that has contracted the Service Provider for the use of the service specified in Section 3.2. any natural or legal person or economic entity or other organisation that has been commissioned directly by a Reseller for the sale of road use authorisations (e-vignettes) any natural or legal person or economic entity or other organisation or other organisation that purchases road use authorisations for itself (themselves), or for a client Decree No 37/2007 (III. 26.) GKM by the Minister of Economy and Transport on toll motorways, highways, and main roads NTPS Plc. GTC for HD resellers page 3

4 Toll Decree: E-vignette: Force majeure Service: Commission: Product: Decree No 36/2007 (III. 26.) GKM by the Minister of Economy and Transport on the tolls payable for the use of motorways, highways, and main roads road use authorisation shall mean, in particular, war, civil uprising, strike, natural disaster, fire, blast, state of emergency or other similar unavoidable situation the sale of e-vignettes a fee paid by the Service Provider to the Reseller for the successful sales of the product (e-vignette) specified with a percentage rate in the Cooperation Agreement e-vignette Payment guarantee: In view of the fact that the Reseller is not authorised to dispose of the consideration received for the e-vignettes sold and is required to settle such consideration with the Service Provider within a set time limit, the Reseller shall provide a guarantee for the settlement period in the amount specified in these GTC. Parties: the Service Provider and the Reseller collectively Cooperation Agreement: 2 Name and address of the Service Provider Name of the Service Provider: Limited by Shares Address: legal relations established between the Service Provider and the Reseller for the sale of road use authorisations (e-vignettes, Service Code ) to End Users. Tax number: Company registration number: National Toll Payment Services Private Company H-1134 Budapest, Váci út 45, Building B Contact information for the Service Provider s customer service points: Motorway Km City Location Side* Mon-Tue / Thu-Fri Opening hours M1/M7 9 Budaörs service area right NTPS Plc. GTC for HD resellers page 4 Wed Sat- Sun M3 12 Budapest service area right M5 67 Lajosmizse service area right M5 159 Szeged Cora left M6 67 Dunaújváros Marketplace left

5 M60 30 Pécs Árnyasliget u. right M7 59 Székesfehérvár service area right M30 - Miskolc Pesti u (Server Center shopping mall) - - Debrecen Kassai út Szolnok Abonyi út. Topographic number: /34/A (next to Tesco) - - Gyöngyös Atkári út Nyíregyháza Debreceni út Békéscsaba Berényi út M1 142 Lébény Engineering bureau of the left motorway - - Veszprém Budapesti út Szombathely Körmendi út M7 219 Eszteregnye Engineering bureau of the right motorway *right side: Budapest outbound, left side: Budapest inbound Central contact: ugyfel@nemzetiutdij.hu Telephone: Internet website: NTPS Plc. GTC for HD resellers page 5

6 3 Purpose, scope and term of the General Terms and Conditions 3.1 Purpose The purpose of these General Terms and Conditions (hereinafter GTC ) is to specify the standard terms and conditions applicable to the operation of the Cooperation Agreements subject to it, as well as to set forth general regulations for the legal relations between the entities subject to it, in order to complement the specific terms and conditions contained in the Cooperation Agreements. 3.2 Material scope The material scope of the GTC covers the Service Provider s contractual relations established on the basis of the GTC as follows: Sale, whether directly or through subcontractors, of road use authorisations (evignettes, Service Code ) to End Users on the basis of Cooperation Agreements. 3.3 Personal scope 3.4 Term The following persons are subject to the GTC: the Service Provider, the Resellers and the Subcontractors. The GTC shall be effective for an indefinite period as of its effective date of 1 November Establishment of access points 4.1 In the event that the Service Provider signs a Cooperation Agreement with a new Reseller, the Parties intend to introduce the Service in accordance with the predefined schedule. The actual date of the commercial launch of the Service, together with its terms and conditions, shall be defined and adopted jointly by the Parties. 4.2 The Parties agree that the Reseller shall require the Service Provider s written consent to contract any third party for the Service specified in a Cooperation Agreement made under these GTC. In such an event, the requirements for the third party shall be the same as those applied to the Reseller. The rate of the commissions granted in the agreement between the Reseller and a third party with respect to the sale of e-vignettes shall not exceed the rate specified by the Service Provider and the Reseller in the Cooperation Agreement existing between them. The Reseller shall undertake to ensure that any agreement with a third party guarantees the Service Provider s rights and obligations concerning the Reseller. The Reseller acknowledges that it cannot make any claims to a third party against the Service Provider with regard to its obligations under this contract (especially the procedures on payment, settlement and end-users). Within one working day following the Service Provider s request, the Reseller shall be obliged to present its agreement with any third party for the Service regulated herein as well as copies of the agreement with a foreign partner in the original language and the Hungarian translation. 4.3 The Reseller understands that the Service Provider is entitled to terminate the point of sale with a 30-day notice without providing a reason. NTPS Plc. GTC for HD resellers page 6

7 5 Operation 5.1 The Service Provider or its agent shall be entitled to check any point of sale for full compliance with the requirements set out in this Agreement and the applicable Toll Decree. 5.2 On completion of each Product purchase transaction, the Reseller shall hand over to the End User the transaction data on a printed receipt that is suitable for storage, the contents of which are specified in the Toll Decree and in the Decree, as in force at the time when the GTC takes effect. The Reseller shall be required to retain the seller s copy of the receipt for two years following the expiry of the toll, and supply it to the Service Provider on request (for complaint enquiries, settlement disputes or litigation). 5.3 The system supplied by the Service Provider for the validation of e-vignettes shall be password-protected. The Reseller shall receive the initial password from the Service Provider before the start of the Service. However, the Service may only be started by using a password that has been modified by the Reseller and is applied in accordance with its own regulations. The Reseller shall be required to regulate access to the interface in its own internal regulations and procedural rules and in accordance with the terms and conditions specified by the Service Provider. Upon settlement, the Service Provider shall invoice the Reseller for all validations made via the Validation Interface as valid sales, including those resulting from the activity of unauthorised parties or the fault of the Reseller. 5.4 The Service Provider shall be entitled to suspend the Services provided due to maintenance work, and is required to notify the Reseller thereof in an sent at least 2 (two) working days in advance to its contact persons. 5.5 Any malfunctions related to the Service Provider s system encountered during the operation of the Service shall be reported by the Reseller at servicedesk@nemzetiutdij.hu. Errors and downtimes occurring in the connection between the Reseller and its internet service provider and/or data communication provider, or in the connection between its local devices (computer and printer), shall not be considered malfunctions of the Service Provider s system. If the Reseller conducts sales through its own developed system, it shall notify the Service Provider in writing of any errors affecting the sale of e-vignettes at servicedesk@nemzetiutdij.hu. 5.6 The Service Provider undertakes to start repairing any malfunctions in its system reported in accordance with Section 5.5 within one hour following the report. 5.7 The requirements for systems developed by Resellers are included in Annex 3. NTPS Plc. GTC for HD resellers page 7

8 6 Financial terms 6.1 All transactions that have been registered in the Service Provider s system as successful purchases shall be considered as such by the Parties. The Service Provider shall not allow any transactions to be reversed. 6.2 As part of the Service, the Reseller shall sell the Product at the price (toll) set out in the Toll Decree applicable at the time. Where the price (toll) of the Product changes in the relevant Toll Decree, the Service Provider shall notify the Reseller immediately through its contact persons. The Reseller shall be allowed to sell, as of the effective date of the change, only at the price (toll) specified in the Decree. 6.3 The Parties acknowledge that VAT invoices on the Products sold by the Reseller to the End User may only be issued by the Reseller. On each sale of the Product, the Reseller shall issue a fiscal receipt in compliance with applicable laws. 6.4 The responsibility for the Product prices (tolls) shall in all cases be borne by the Service Provider. The Reseller shall not be allowed to collect any consideration subsequently. Any resulting complaints by End Users concerning the Reseller must be dealt with by the Service Provider, except where it has fulfilled its obligation set out in Section 6.2 but the Reseller nevertheless sells at a price other than the effective price (toll). 6.5 The Reseller shall be entitled to a commission for each successful purchase, on the basis of an invoice issued following the settlement and reconciliation detailed in Section The Service Provider hereby warrants that no rights of third parties or legal provisions restrict in any form the performance of the obligations set out in these GTC, and the performance of these obligations does not violate the rights or lawful interests of third parties or any legal provision. In accordance with the above, the Service Provider shall be required to fulfil or pay any such claims occurring later including any taxes, duties, fees, customs duties or other charges and public dues levied on the Service provided by the Service Provider under these GTC and to exempt the Reseller from these claims immediately. 7 Settlement of accounts 7.1 The Service Provider shall continuously measure the Service turnover generated by End Users. 7.2 Prior to Section 7.11 becoming effective, the Parties shall determine settlement periods as follows: NTPS Plc. GTC for HD resellers page 8

9 7.2.1 On a biweekly basis: a) from the 1st day to the 15th day of the month concerned, a) from the 16th day to the last day of the month concerned. As a criterion for the application of biweekly settlement, the Reseller undertakes to provide a payment guarantee under Section in excess of 34 times the average daily turnover as specified in Section On a monthly basis. From the 1st day to the last day of the month concerned. As a criterion for the application of monthly settlement, the Reseller undertakes to provide a payment guarantee based on Section in excess of 49 times the average daily turnover as specified in Section The Parties shall specify the settlement period applied in the Cooperation Agreement between them. 7.3 By the 2nd working day following each settlement period as specified in Section 7.2, the Parties shall exchange by the sales data for the settlement period for reconciliation, broken down by point of sale, toll category and type. If the Reseller fails to send the above data of the Service Provider by the 2nd working day following each settlement period or to indicate that the data sent by the Service Provider do not correspond to those in its own records, then the Reseller acknowledges that the Service Provider is entitled to issue the invoice on the basis of its own records, without the settlement notice mentioned in Section 7.4. Where the data sent by the Service Provider correspond to the data sent by the Reseller, these data will serve as a basis for invoicing. Where the data exchanged do not correspond, the invoice shall be issued on the basis of the sales data sent by the Service Provider, by the 4th calendar day following the settlement period invoiced. The Parties shall consult one another on any differences by the 10th calendar day following the end of the settlement period in question. To settle e-vignettes found during the data exchange and determined to have been generated due to the technical fault of the Reseller s system and registered in the Service Provider s system but not sold (e.g. duplicate validations), the Reseller shall pay an administrative cost of HUF 1, VAT per item equal to that of the cancellation procedures in accordance with Section 2 in Annex 2 of the GTC. The Parties shall settle the differences by issuing and paying a correcting invoice, by the 25th day of the month following the period invoiced. 7.4 Based on the e-vignettes validated by the Reseller and registered in the Service Provider s system, the Service Provider shall issue and invoice to the Reseller by no later than the 4th calendar day following the settlement period concerned. The Reseller shall be required to pay the invoice by the due date specified therein. The due date of the invoice shall be 10 calendar days from the date of the invoice. If the payment deadline falls on a holiday, the Reseller agrees to schedule payment of the invoice so that the invoice amount is credited to the Service Provider s bank account on the last banking day preceding the holiday. In the event of late payment due to the payment deadline being a holiday, the Reseller may be required to pay a late-payment interest NTPS Plc. GTC for HD resellers page 9

10 as per Section The Service Provider shall issue a performance certificate on the commission until the 5 th calendar day following the issuing of the invoice, which is to be attached by the Reseller to the invoice issued by the Retailer on the commission in accordance with Section Following the settlement period, the Reseller shall invoice the Service Provider for the commission specified in Section 6.5, on the basis of the invoice and payment certificate issued by the Service Provider under Section 7.6, applying the percentage rates agreed by the Parties in the Cooperation Agreement. The Reseller s invoice shall be issued with a due date of 10 calendar days, and shall be sent to the Service Provider immediately. The Service Provider shall be required to pay the invoice by the due date specified therein. The Service Provider shall accept the Reseller s invoice only with the original copy of the performance certificate previously signed and sent by the Service Provider. 7.6 The Service Provider s invoice shall be issued in accordance with the VAT rules applicable to the sale of goods, and the Settlement Notice (statement of turnover data) previously sent by the Reseller electronically shall be attached to the invoice. Under the regulations currently in effect, the service code of the Product sold by the Service Provider is The Reseller shall submit the invoice issued in accordance with Section 7.5 by sending it to the Service Provider s registered address (Finance Department, H-1134 Budapest, Váci út 45, Building B ). The Service Provider shall only pay the invoice when the Reseller has transferred the amount of the Service Provider s invoice. 7.8 The Reseller acknowledges that to ensure identification of its invoice, it shall enclose to the invoice the original copy of the performance certificate signed by the Service Provider. 7.9 The Service Provider shall verify the Reseller s invoice upon the receipt. Subject to the rules concerning written notices, the Service Provider shall be entitled to reject any invoice which is submitted in derogation of the provisions of Sections 6 and 7, and in particular Section 7.8, or which contains an error. The Reseller shall submit a new invoice in accordance with the provisions of this Agreement. The case provided for in this Section shall not constitute a payment default on the Service Provider s part Should any of the Parties be in default with the payment of any invoice, the other Party shall be entitled to default interest as set forth in the Civil Code The Reseller acknowledges and agrees that the Service Provider shall be entitled to apply shorter settlement periods in derogation of Section 7.2 if the value of the Reseller s invoice under Section 7.4., or that of e-vignettes sold by the Reseller over a settlement period which have not been invoiced by the Service Provider, equals or exceeds 70% of the amount of the guarantee provided by the Reseller to the Service Provider. In such a case, the Resellers previously subject to monthly settlement as set out Section shall be subject to bimonthly settlement as set out in Section 7.2.1, and the Resellers previously subject to bimonthly settlement as set out in Section shall be subject to weekly settlement. Weekly settlement shall be interpreted as follows: NTPS Plc. GTC for HD resellers page 10

11 a.) b.) c.) d.) from the 1st day to the 7th day of the month concerned from the 8th day to the 14th day of the month concerned from the 15th day to the 21st day of the month concerned from the 22nd day to the last day of the month concerned. The Reseller accepts that the Service Provider offers the option for weekly settlement specified in this section only until the payment guarantee specified in Section is increased and then fulfilled by the Reseller but for no longer than 1 month. If the Reseller fails to increase the payment guarantee with the amount and by the deadline specified in the Service Provider s written demand, the Service Provider may suspend or limit the Reseller s right to validate e-vignettes The Parties agree that deadline for the review of transaction items relevant to the target year and for subsequent settlement is March 31 of the year following the target year. After the above date, the Parties consider the target year closed in terms of settlement. With due consideration of the deadline, the Parties shall exchange any requests regarding e-vignette settlements for the target year by the last day of February following the target year. The provisions included in this section do not apply to corrections and subsequent settlements relevant for the previous target year and generated in connection with the sales errors and customer complaints included in Annex 2 of the GTC Settlement is carried out in months 3 to 6 and 9 to 12 in accordance with Sections and As opposed to the above, the Service Provider is entitled to use a more frequent settlement schedule in months 1 and 2, furthermore, 7 and 8 but only up to the limit specified in Section 7.10, considering that the turnover of those months exceeds the average The Service Provider determines the required guarantee amount as follows: The base figure is the number of e-vignettes sold during months 3 to 12 of the previous year and modified by a 1% turnover increase and the currently effective e-vignette prices. If the points of sale have also changed (e.g. new points of sale opened), the Service Provider also takes that factor into account when determining the amount of the guarantee The Parties agree that the expiry period of Reseller s claims to the payments of the Service Provider is one (1) year. 8 Customer Service 8.1 The Service Provider shall be required to address the substance of any complaint solely attributable to the malfunctions in the systems which it operates, investigate such malfunctions within 15 (fifteen) days, and inform the Reseller of the outcome. 8.2 At the request of the Service Provider or the End User, the Service Provider shall be required to address the substance of any End User complaint relating to payment of the consideration of the Product or to the use of the Service, investigate the matter, and inform the Service Provider of the outcome within 10 (ten) days of receiving the request. If the Reseller is contacted by the End User directly, the Reseller shall inform both the Service Provider and the End User in writing within 10 (ten) days of receiving the request. In order to fulfil the obligation set out in this Section, the NTPS Plc. GTC for HD resellers page 11

12 Service Provider shall be required to cooperate closely with the Reseller on issues related to the systems it operates. The Reseller shall not deal with End User complaints relating to the activity of the Service Provider, and shall forward such complaints to the Service Provider or its customer service immediately upon receipt. 8.3 The Reseller hereby undertakes to provide continuous information to interested End Users on the Product and on purchasing the Product as part of the Service, orally or by any of the means specified in Annex 1 to these GTC. 8.4 The Reseller hereby undertakes to continuously draw the attention of End Users to the opportunity to use the service. 8.5 The procedures for examining customer complaints which involve the payment of a surcharge are made during the term of this legal relationship and concern errors in the Reseller s sale of e-vignettes are regulated in Annex 2 hereto. 9 Communication 9.1 The Parties shall be active in communicating the Service both individually and jointly. The Parties shall consult with each other on the various forms and the contents of communication, which may only be used on approval. 9.2 The Parties hereby undertake to communicate the Service through their own communication channels, in full compliance with this Agreement. 9.3 The Reseller shall be required to display clearly and legibly the toll(s) applicable to the Service as stipulated in the Toll Decree and Act CLV of 1997 on Consumer Protection in any advertisement of the Service and in any information materials published in relation to it. 9.4 The Reseller undertakes to ensure that any data communicated by it (Product price/toll, delivery deadline) correspond to the actual data of the Service. Any deviation from this requirement shall be considered a material breach of contract. 9.5 The Service Provider shall at all times supply the Reseller with a sufficient volume of timely and up-to-date information on the Product. 9.6 The Reseller shall be required to arrange and request the written permission of the Service Provider for any advertisement of the Service and in any information materials published in relation to it. When designing the communication material and during the application of the CI elements, the Reseller must always take into account the requirements of the CI Guide of the Service Provider, together with the potential modifications applied by the Service Provider. NTPS Plc. GTC for HD resellers page 12

13 9.7. Reseller shall ask its technical questions related to the sale of the Service at the Service Desk at / , or by to With questions related to the sales processes, contact the Resellers on-duty number at / , or send an to The Service Desk is available 24/7; the Resellers on-duty number is available 8:00 AM - 4:00 PM Mon-Thu, 8:00 AM - 1:00 PM Fri. The above contact information is for Resellers exclusively; these contact channels are not for disclosure for Clients. Resellers can provide the Call Center information of the Service Provider to the Clients, which are as follows: phone number: / (available 24/7) or at ugyfel@nemzetiutdij.hu; from outside Hungary / (8:00 AM - 4:00 PM). 10 Other provisions 10.1 The Parties shall be required to manage any data relating to the users of the Product and the Service with the greatest care possible and in accordance with the laws on the protection of personal data, it being understood that the Reseller shall not manage personal data. The Party in breach of the law shall be required to bear the responsibility for all claims arising from inappropriate data management occurring within its own sphere of interest The Parties shall be required to notify each other in writing, by mail or to the addresses of the contact persons included in the contract about any changes in their data (regarding, in particular, the address, the mailing address, the invoice address and the bank account number) within five (5) working days. The defaulting Party shall bear all damage and consequences arising from failure to send this notice The Party in breach of contract or the law shall be liable for any damage arising from failure to notify the other Party as provided for in the GTC, in a Cooperation Agreement made under the terms of the GTC, or by relevant rules of law Unless otherwise provided for herein, any legal statement or notification bearing legal consequences required by these GTC shall be sent by the Parties to one another in writing, in a manner that clearly proves receipt Unless otherwise provided for herein, each Party shall bear any costs (e.g. banking costs) and expenses which it incurs in connection with the performance of the Service The Parties shall be required to cooperate closely in order to perform this Agreement. The Parties shall inform the other Party in a timely manner of any circumstances that affect or influence the performance or result of the cooperation agreement or the performance dates. In addition to the above, the Parties shall be required to cooperate in general for the performance of these GTC and their Cooperation Agreement concluded under the terms of the GTC. Accordingly they shall provide each other with the necessary data and information on time and provide for the establishment of the conditions for the Service. NTPS Plc. GTC for HD resellers page 13

14 10.7 Where either of the Parties (for the purpose of this Section, hereinafter the defaulting Party ) fails to fulfil or properly fulfil any of its obligations under this Agreement, the other Party shall be indemnified, in this regard, from and against any legal consequences of the breach of contract arising from the breach of obligations by the defaulting Party, and shall be entitled to enforce its claims resulting therefrom against the defaulting Party The Parties agree that in order to guarantee fulfilment of its payment obligations hereunder, the Reseller may be required to provide a payment guarantee to the Service Provider upon acceptance of these GTC The form of such payment guarantee may be: - cash deposit (caution money) in accordance with Section 10.9; - bank guarantee in accordance with Section owner s guarantee as per Section The Reseller acknowledges that in case this Agreement is terminated for any reason whatsoever and/or the Reseller has any debt to the Service Provider and fails to pay it upon the Service Provider s notice by the date specified, the Service Provider shall be entitled to seek satisfaction from the amount of the above guarantee within the limits of its claim. Should the amount of the guarantee be insufficient to satisfy the Service Provider s claims, the Service Provider shall be entitled to enforce such claims by other means. Should this Agreement be terminated so that the Reseller has no debt to the Service Provider, the amount of the guarantee (provided that it is in the form of cash deposit) shall be refunded to the Reseller. The Parties agree that no interest shall be payable to the Reseller on the amount of the guarantee. The Service Provider shall use the guarantee for settling claims in the following order: - costs, - interests, - principal amount The Service Provider shall determine the minimum amount of the payment guarantee to be provided by the Resellers on the basis of the risk categories to which they belong. The Reseller agrees that, using the form in Annex 8 of these GTC (in xls or xlsx format), submits in an electronic format (by ) to the Service Provider the business data necessary for the risk classification after the profit-and-loss reporting period of each business year but by July 15 following the target year at the latest. Foreign Resellers are required to provide to the Service Provider certified balance sheet and profit-and-loss reports in the format specified by law or other regulations in effect in the specific country and/or required by the EU with regard to the Reseller. A. A Reseller shall be deemed to belong to the preferred, low-risk category if in both of the previous two closed business years preceding the time when the minimum amount of guarantee is determined: - its balance sheet total was higher than 15 billion Hungarian forints; - its net sales revenue was more than 10 billion Hungarian forints per year; - its balance sheet profit figure was not negative in either year. NTPS Plc. GTC for HD resellers page 14

15 In case all of the above conditions are met, no guarantee is required to conclude the contract or maintain the same in effect. If the last condition is not satisfied, i.e. the Reseller s balance sheet profit figure was negative in at least one year, but the Reseller has performed its reselling activities for at least 3 years without problems, then upon examination of the annual reports, as well as other data from the court of registry, the tax authority (NAV), etc. the Reseller may be placed into this category with the approval of the Service Provider s Director for Economics and Controlling. Granting or withdrawing such classification under this Section A shall, as a risk factor, be within the exclusive competence of the Service Provider. B. No limited guarantees are permitted. C. If the Reseller does not satisfy the conditions in Section Paragraph A, then it shall belong to the high-risk category. In this case the payment guarantee is determined in accordance with the provisions in Section Upon establishing a new contractual relationship, this is calculated by the Service Provider with a minimum of HUF 3 million payment guarantee per point of sale If the Reseller itself does not have Low-risk priority rating as defined in Section /A, but the consolidated sales revenue and balance sheet total of not more than 2 (two) other affiliates of the Reseller registered in Hungary equals or exceeds the limits for such priority category (10.8.3/A), and the revenue from e-vignettes sold by the Reseller in the previous full business year exceeds 5% of the total e-vignette revenue realised by the Service Provider in the same business year, the Reseller may also earn the low-risk priority rating by means of a cash surety complemented with a prompt collection order provided by the Reseller s affiliates included in the rating and drawn up in a notarised document, up to the limit previously approved by the Service Provider. The combined amounts (balance sheet total and net revenue from sales) shall be corrected with the transactions between the affiliates in order to eliminate duplicate amounts If a Reseller wishes to provide the payment guarantee in the form of a cash deposit (caution money), then the Reseller shall satisfy the requirement for the provision of such payment guarantee by way of transferring/depositing the amount to the following bank account of the Service Provider, with the notice cash deposit for vignettes : K&H Bank Zrt., IBAN: HU SWIFT: OKHBHUHB If a Reseller wishes to provide the payment guarantee in the form of a bank guarantee, only bank guarantees provided by credit institutions registered by the Hungarian National Bank and having an active legal status may be accepted. Beginning the 30th calendar day before the expiration of the bank guarantee provided by the Reseller, the Service Provider is entitled to limit or suspend the Service. The Reseller shall renew as necessary and keep the bank guarantee continuously in effect during the contractual relationship hereby concerned, with special emphasis on monitoring the expiration deadline of the bank guarantee Additional criteria for bank guarantees: - they must be in Hungarian (in case of a foreign reseller, English language document is also accepted) NTPS Plc. GTC for HD resellers page 15

16 - the beneficiary must be National Toll Payment Services Plc.; - they may only be withdrawn with the Service Provider consent; - they must grant the Service Provider unconditional drawing rights without examining the fundamental right relation - the bank guarantee is assignable and alienable by the beneficiary In case of foreign Resellers, foreign bank guarantees may also be accepted which are submitted to the Service Provider s bank (K&H Bank) via SWIFT and which may be enforced by the Service Provider through the same. The Service Provider may accept or reject any foreign bank guarantee at its own discretion without having to provide a reason The Service Provider shall be entitled to restrict or suspend the Service if the Reseller s payment of any invoice issued in accordance with Sections 6 and 7 is overdue, or any debt remains outstanding following deduction of the full amount of the payment guarantee referred to in Section If the guarantee is deducted either in part or in full but the Cooperation Agreement between the Parties remains in effect, the Reseller shall, within 8 days, repeatedly pay the amount of the guarantee to the Service Provider as described in Section 10.9 or top up the guarantee to the required amount The Reseller acknowledges that during the term of the Agreement, the Service Provider shall be entitled to increase the amount of the payment guarantee unilaterally, subject to notification of the Reseller in writing, in order to ensure that the guarantee corresponds to the rate specified in Sections and of the GTC. The Reseller acknowledges that in such a case it shall top up the amount of the payment guarantee to the amount specified in the Service Provider s written notice within 8 calendar days of such notice. The Parties agree that, should the Reseller fail to pay or top up the payment guarantee amount by the date specified in the notice, the Service Provider may, at its own discretion, request an immediate settlement of accounts from the Reseller, suspend the provision of the Service immediately, or terminate the Agreement with immediate effect. In addition, the Service Provider is entitled to increase the payment guarantee in accordance with the provisions of this section upon the Reseller s request to expand its sales network The Reseller acknowledges that purchasing the product described in Section 3.2 of this Agreement shall in no circumstances be tied to any other service or, with foreign sales, advertised or suggested as a prerequisite for border crossing The Cooperation Agreement shall become effective on the date of its execution by both Parties and shall remain in effect for an indefinite period The Cooperation Agreement may be terminated without cause (ordinary termination) by either Party, on 30 (thirty) calendar days notice In the event of a material breach, the Cooperation Agreement may be terminated with cause (extraordinary termination) by the injured Party with immediate effect, provided that the injured Party has sent prior written notice to the defaulting Party, setting a deadline of at least 8 (eight) days and stating the reasons, demanding that the NTPS Plc. GTC for HD resellers page 16

17 infringement be stopped and its consequences be remedied, and the deadline has expired without these demands being met. Where any provision of these GTC and/or the Cooperation Agreement specifies a deadline other than the above for the remedy of a breach, that deadline shall be applicable in accordance with this provision. The reasons for extraordinary termination must be stated Any of the following shall be considered a material breach of contract by the Reseller: - failure to comply with Sections 5.2, 7.4, 9 or 13 of the GTC; - failure to fulfil the requirements set out in Annex 2 to the GTC; - selling e-vignettes at prices other than those set out in the Toll Decree, or provision of wilfully misleading information to customers, at any of the Reseller s points of sale; - tying the Service to other products, goods, services or service packages so that the road use authorisation (Product) cannot be purchased as a standalone item at the price fixed in the Toll Decree in effect; - blending the so-called convenience fee charged by the Reseller to End Users on the sale of the Product with the price of the e-vignettes. (The Reseller is required to inform the Service Provider in writing in advance about the rates at least 30 calendar days before their application or modification, as well as to disclose, and indicate the amount of, the fee to End Users in an unambiguous and identifiable manner.) - engagement in unfair market practices or in any other act or conduct to damage the Service Provider s good reputation or other moral rights; - the Reseller or its Subcontractor providing the Service at a location or in a form lacking approval by the Service Provider, - failure to pay the Service Provider s invoice to the Reseller within the time limit specified in the Service Provider s notice Any of the following shall be considered material breach of contract by the Service Provider: - failure to inform the Reseller in writing about any change in its General Terms and Conditions within 15 days prior to the change; - engagement in unfair market practices or in any other act or conduct to damage the Reseller s good reputation or other moral rights; - failure to pay the Reseller s invoice to the Service Provider within the time limit specified in the Reseller s notice This Agreement may be terminated by the Parties with immediate effect if the liquidation of either Party has been ordered by the competent court of proper jurisdiction without the possibility of an appeal In the event of a termination with immediate effect the Parties reserve the right to enforce their claims arising from the breach of contract, including the right to compensation for the damage suffered by them. As regards compensation claims, any claims stipulated in the Cooperation Agreement and damage arising from the default event may also be enforced. NTPS Plc. GTC for HD resellers page 17

18 10.22 The termination or cessation of this Agreement shall imply removal of the Reseller s Product Purchasing Services from the systems operated by the Service Provider, as well as invoicing and payment of any amounts remaining to be settled. 11 Reseller s right of termination in the event of the Service Provider s unilateral amendments to the Agreement, Service Provider s termination right 11.1 The Service Provider shall notify the Reseller at least 15 days prior to any amendment to the GTC becoming effective. The Service Provider may fulfil this obligation by means of a notice ed to the addresses of the Reseller s designated contact persons specified in the Cooperation Agreement, and/or displayed on the e-vignette validation interface operated by the Service Provider In its notice, the Service Provider shall remind the Reseller that within 8 calendar days following the notice, the Reseller is entitled to terminate the Cooperation Agreement with immediate effect The Service Provider shall not be required to apply the time limit specified in Section 11.1 in cases where the Service Provider is exclusively obliged to amend the GTC under its agreement with the Hungarian State or its agent for the sale of e-vignettes, or where the Service Provider is under a statutory obligation. If these criteria are met, the Reseller shall not be entitled to exercise its right of termination with immediate effect within the time limit specified in Section 11.2 with reference to the Service Provider s unilateral amendment If the contract to be concluded between the Service Provider and the Hungarian Transport Administration (hereinafter: HTA) in relation to the financing of the obligations to be complied with by NTS based on these GTC and the Cooperation Agreement (hereinafter: Financing Contract ) (i) is not concluded in respect of the subject period or (ii) the Financing Contract ceases or is terminated or (iii) the financing provided based on the Financing Contract is suspended owing to any reason, whatsoever and, as a result of any of the above circumstances, NTPS is unable to comply with its flat-rate reimbursement obligation owing to a lack of available funds and the Cooperation Agreement is not concluded; or if the Financing Contract is not concluded or it ceases/is terminated, NTPS shall be entitled to terminate the Cooperation Agreement of the given subject already concluded between the Reseller and NTPS, without disclosing respective reasons, with a notice period of 30 (thirty) days via mailing to the address specified in the Cooperation Agreement. The termination notice shall be deemed as having been delivered, if the toll declaration operator fails to take receipt of the notice within 5 (five) days from its sending. In the event of any of the above circumstances occurring, the Reseller shall not be entitled to make a demand or claim for compensation or penalty, or make other similar legal claim or demand from NTPS. Even in such case the Reseller shall be entitled to receive the contractual value of the services performed and attested by NTPS up until receiving the notification of NTPS on cessation/termination. NTPS Plc. GTC for HD resellers page 18

19 12 Settlement of disputes, legal remedies 12.1 The Parties agree to settle any disagreements arising, through negotiation. In the event that such negotiations prove unsuccessful, the Parties shall validate their interests based on the relevant provisions of civil procedure. 13 Confidentiality 13.1 The Parties hereby undertake to treat any information acquired in connection with this Agreement and during their activities under it as business secrets, in strict confidentiality. Any information acquired this way may only be disclosed to third parties with the prior and explicit written authorisation of the other Party to this end. Where any information to be treated as confidential becomes known by third parties as a consequence of the breach of confidentiality obligation by either of the Parties, and this leads to damage to the other Party and/or a third party, the culpable Party shall bear full financial liability towards the other Party and/or the third party It shall not be considered a breach of the confidentiality obligation where either of the Parties discloses the information considered a business secret to any competent authorities, courts or other bodies stipulated by law in order to exercise or defend its lawful rights or to fulfil any of its statutory obligations The Parties may raise a claim against the other Party for all damage resulting from the breach of contract due to the infringement of the confidentiality obligation The Parties hereby agree that the confidentiality obligations under Section 13 of this Agreement shall exist during the term of this Agreement and without a time limitation. 14 Force Majeure 14.1 It shall not constitute a breach if any of the Parties is not able to perform its obligations set out in this Agreement for any reason beyond the control of, and insurmountable to, the Parties (force majeure) In the event of force majeure the Parties shall be exempted from the fulfilment of their obligations under this Agreement only to the extent and for the period the force majeure significantly hinders or prevents the performance The affected Party shall be required to notify the other Party on the occurrence of a force majeure event immediately if possible and to inform it on the expected duration thereof and on its effects on the fulfilment of its obligations under this Agreement Where the force majeure event would delay the implementation of this Agreement for more than 1 (one) week, the Parties shall be required to establish the necessary amendments to the Cooperation Agreement or this Agreement via negotiations Where the negotiations under Section 15.2 fail to bring results in 3 (three) working days, either of the Parties shall be entitled to terminate the Agreement with immediate effect, and in this case the provision in Section 10.7 shall not be applicable. NTPS Plc. GTC for HD resellers page 19

20 15 Liability and Indemnity The Reseller shall pay the damages caused to the Service Provider resulting from the breach of contract. Within the scope of the liability for breach of contract, the Reseller shall be obligated to pay the full amount of the damages caused for the Service Provider and/or any third party. The Reseller cannot refer to circumstances being outside the scope of its authority inasmuch as, but not exclusively, it is related to its contractually binding activities; in all other cases for the evaluation of whether the individual circumstances are outside the Reseller s scope authority the provisions of the Civil Code shall prevail Delayed performance of the contractual obligations by the Service Provider as undertaken in this contract shall not constitute willful breach of contract. If the Service Provider does not or only partially performs its contractual obligation undertaken within this contract and refers to the Reseller s faulty or delayed performance, it does not constitute willful breach of contract on the part of the Service Provider If the Reseller causes a damage to the Service Provider and/or to a third party outside this legal relation, it is obliged to pay the damages according to the rules of damage payment with breach of contract The Reseller explicitly and irrevocably states to be aware of the fact that based on legal appointment the Service Provider is a business organisation in exclusive state ownership operating for public benefit and pursuing activities of highlighted significance from the aspect of the national economy, which has to perform its activities in compliance with applicable legal provisions and the contracts regulating the financing of its activities from the central budget and is obliged to pay all revenues resulting from this activity into the central budget. In consideration of the above, the Reseller explicitly and irrevocably states to be aware of the fact that this Agreement is of extreme significance for the uninterrupted and regular performance of the activities of the Service Provider; therefore, any breach thereof may cause significant damage to the Service Provider, and may potentially impact the amount designated in the prevailing act on the budget with respect to the activities of the Service Provider, or to third parties, including the Hungarian State The senior executive officer of NTPS shall, to the extent possible in law, including the potential culpable conduct of the senior executive officer, not be held liable, in connection with their activities as senior executive officer, for any damage caused by NTPS to third parties, for which NTPS shall have exclusive liability. The Reseller acknowledges that should the primary officer of NTPS cause any damage to the contracting party in connection with this legal relationship (including circumstances where such damage is the result of breach of conduct occurring as a result of the culpable conduct of the primary officer), NTPS shall exclusively be liable. The limitation of the liability outlined in this section of the primary officer of NTPS for damage caused shall exclusively be valid and effective with respect to this legal relationship and shall not affect liability for any damage caused in connection with contracts to be or already concluded between NTPS and the Reseller, or outside NTPS Plc. GTC for HD resellers page 20