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HomeMy WebLinkAboutOfficial Payments Corporation -2005 06 17Official Payments Corporation INDEPENDENT CONTRACTOR AND SERVICE AGREEMENT ----. THIS AGREEMEN::r is made the last date signed below, by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ("City"), and OFFICIAL PAYMENTS CORPORATION, a Delaware for-profit corporation whose address is One Landmark Square, Suite 400, Stamford, CT 06901, Stamford, Connecticut ("Contractor"). RECITALS: WHEREAS, the Contractor desires to provide and the City desires to accept certain services under the terms and conditions set forth in this Agreement. IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, diverse, and valuable considerations, the receipt and sufficiency all or which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 DefInitions. For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as amended from time to time, which shall constitute authorization for the Contractor to provide the services stated herein to the City. (b) "City" is the City of Winter Springs, Florida. (c) "Customer" shall mean users of the City's services. (d) "Contractor" shall mean OFFICIAL PAYMENTS CORPORATION, and any employees, contractors, agents, or wholly owned subsidiaries thereof. Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 1 of 14 (e) "Effective Date" shall be the last date upon which the parties signed this agreement. The Agreement shall not be effective against any party until said date. (f) "Public Record" is as described in Section 119.011(1), Florida Statutes. (g) "Services" shall include the performance of the Services outlined in Article 2 of this Agreement. 1.2 Ene:ae:ement. The City hereby engages the Contractor and the Contractor agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Dilie:ence. The Contractor acknowledges that it has investigated prior to execution of this Agreement and satisfied itself as to the conditions affecting the Services to be provided, the availability of materials and labor, if any, and the requirements to obtain necessary insurance. The Contractor warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services contemplated herein. The Contractor will perform its Services with due and reasonable diligence consistent with sound professional practices. 1.4 CCNA Services. The Contractor warrants unto the City that the Services being performed pursuant to this Agreement do not constitute professional services as defmed by Section 287.055(2)(a), Florida Statutes. ARTICLE 2 DESCRIPTION OF SERVICES TO BE PERFORMED 2.1 Scope of Services. Contractor shall provide Customers, in accordance with the City's Credit Card Policy, the opportunity to make payment for City services (hereinafter "Payment") by credit card or "pin-less" debit card. A copy of the City's Credit Card Policy is attached hereto as Exhibit" A", and incorporated herein by this reference, Payments may be made either by an interactive telephone voice response system ("IVR") Qr internet interface provided at the Official Payments Corporation's website ("Website") (collectively referred to as the "System"). Provided however, in no event shall the terms of Exhibit "A" supersede the rules or regulations of the applicable Card organization or any applicable merchant bank agreement including without limitation those identified in Section 4.4(a). Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 2 of14 . Contractor shall, on behalf of the City, collect and process Payments from Customers using MasterCard@, VISA@ or other credit card (hereinafter each referred to as a "Card") as may be mutually agreed upon, in writing, between the parties. 2.2 Professionalism. The Contractor shall do, perform and carry out In a professional manner all Services required to be performed by this Agreement. 2.3 Warrantv of Professional Services. The Contractor hereby warrants unto the City that it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, the Contractor shall supervise and direct the Services, using appropriate skill and attention and shall enforce strict discipline and good order among its employees. The Contractor shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of any public authority of competent jurisdiction hearing on the performance of the Services. The Contractor shall pay all applicable taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 3 COMPENSATION. PAYMENT PROCESSING 3.1 Compensation. Contractor may charge each Customer a "convenience fee" for each Card transaction processed (hereinafter the "Convenience Fee"). Such Convenience Fee is to be collected in addition to the corresponding Payment as part of a unified Card transaction. A schedule of the Convenience Fees is attached to hereto as Exhibit "B". Contractor may amend this schedule upon prior written notice to the City and with the consent of the City Commission; such consent will not be unreasonably withheld. Provided however, Contractor may increase the Convenience Fees upon thirty (30) days notice to the City, in the event Contractor incurs an increase in the interchange, assessment, and/or other Card transaction processing related fees. Contractor shall not charge the City any fee for providing the Services contemplated herein. Enhancements to the Services or additional services not contemplated in this Agreement may include fees payable by City, provided the same are mutually agreeable to both parties, and adopted in writing with the same formality as this Agreement. 3.2 Payment Processine:. (a) Contractor shall confirm the dollar amount of all Utility Payments and the corresponding Convenience Fees to be charged to a Card and obtain the Customer approval (electronic or otherwise) of such charges prior to initiating credit or debit authorizations. Contractor will provide Customer with electronic confirmation of Card transactions. Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 3 of 14 (b) For authorization purposes, Contractor will electronically transmit all Card transactions to the appropriate Card-processing center, in real time as the transactions occur. Contractor will retain Card authorization logs and transaction records for such period of time as required by applicable law or regulation and with the regulations of the respective Card organization. Contractor shall permit inspection of these records by the City at any reasonable time during normal business hours. (c) Contractor shall forward the Payment transactions to the appropriate Card organizations for settlement to the City's depository bank account previously designated by the City (hereinafter the "City Bank Account"). Contractor shall retain all Convenience fees collected by it hereunder. (d) Contractor will arrange for a unique line merchant descriptor for the Payment that references the City and arrange for a separate unique line merchant description for the Convenience Fee that references the Contractor and the nature of the fee. (e) With respect to all "reversed" and "charge back" Card Transactions that are substantiated by a Customer and approved by an authorized representative of Contractor and the City: (i) the City authorizes Contractor (or the respective Card organization) to debit the City Bank Account for the amount of the corresponding Payment and (ii) Contractor shall refund to the Card organization (for credit back to the Customer) the corresponding Convenience Fees. The City agrees that it shall not refund in cash to a Customer any Payment made using Contractor's Services. In the event that Contractor is unable to collect all amounts owed by City hereunder through debiting the City Bank Account, City shall promptly pay all owed amounts to Contractor in immediately available funds. ARTICLE 4 GENERAL CONDITIONS OF SERVICES 4.1 Service Reports. Contractor shall provide City with reports summarizing use of the Services by Customers for a given reporting period. The City Manager, or designee, may request and Contractor agrees to provide additional information or clarification of the information contained within the report. 4.2 City Marketine:. Contractor shall provide City with logos, graphics, and other appropriate marketing materials for City's use in its communications with its Customers regarding the Services and/or the Contractor. Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 4 of 14 4.3 Services is a Private Undertakine:. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and the Contractor is such that the Contractor is an independent contractor and not an agent or employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City and the Contractor, during or after the performance of the Services under this Agreement. 4.4 City's ResDonsibilities. In order for Contractor to provide the Services outline in this Agreement, the City shall cooperate with the Contractor by: (a) If required by a Card organization, City will enter into all applicable merchant Card agreements and fully adhere to the rules, regulations and operating procedures of the various Card organizations, including without limitation, with respect to the use of specific Card logos and marks. (b) Other than permitting Contractor to charge the Convenience Fees in accordance with this Agreement, City will not impose any surcharge or other penalty on Card transactions made by its Customers for Payments. (c) City will provide Contractor with the electronic record specifications necessary for funds settlement and the posting of Payment. (d) If applicable, City will provide Contractor its desired reporting formats sufficiently in advance of the desired report delivery date. ( e) City will provide to Contractor all necessary documents and correspondence in connection with chargeback transactions or other similar refund transactions. (f) City will establish a reasonable adjustment policy to accommodate adjustments that are required in the normal course of City's daily operations. (g) City will not require, as a condition to making a Payment, that a Customer agree in any way to waive such person's rights to dispute the transaction with the Card issuer for legitimate reasons. (h) City will promote the Services to its Customers. These promotions shall include publishing the relevant telephone number and URL for the Website on utility bills and other related marketing materials, if any. City will obtain Contractors Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 5 of 14 reasonable consent prior to publishing any materials that reference the Services and/or Contractor. ARTICLE 5 SUBCONTRACTS: ASSIGNMENT 5.1 Assignment. Unless otherwise specifically required by this Agreement, the Contractor shall not assign, sublet, or transfer any rights or Services under or interest in (including, but without limitations, moneys that may become due) this Agreement without the written consent of the City, except to the extent that any assignment, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract any portion or all of the Services without the written consent of the City, provided however that the processing of Payments under this agreement by card organizations or other financial institutions shall not be prohibited by the foregoing. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and the Contractor, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the City and the Contractor and not for the benefit of any other party. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Governine: Law: Venue. This Contract shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County. If any dispute concerning this Contract arises under Federal law, the venue will be the Orlando Division of the Middle District of Florida 6.2 Authorized Representative. Each party shall designate an individual to act as a representative for the respective party, with the authority to transmit instructions and receive information. The parties may from time to time designate other individuals or delete individuals with the authority to act on behalf of each respective party under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 6 of 14 6.3 Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Ronald W. McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 407-327-1800 (Phone) x202 407-327-4753 (Fax) and Anthony A. Garganese, City Attorney Brown, Garganese, Weiss, & D' Agresta, P.A. P.O. Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) TO THE CONTRACTOR: OFFICIAL PAYMENTS CORPORATION c/o President 177 Technology Parkway Auburn. AL 36830 (334) 321-376 7 (Phone) (334) 321-7285 (Fax) and OFFICIAL PAYMENTS CORPORATION c/o General Counsel 10780 Parkridge Blvd, Suite 400 Reston, VA 20191 (571) 382-1000 (571) 382-1004 Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 7 of 14 Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 6.4 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor related, directly or indirectly, to this Agreement, unless exempt under Section 119.07, Florida Statutes, may be deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor constituting a public record is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the Contractor shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 6.5 Interpretation. Both the City and the Contractor have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.7 Amendment of Ae:reement. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 6.8 Severabilitv. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. 6.9 Additional Assurances. The Contractor certifies that: (a) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 8 of 14 (b) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. 6.10 Attornev's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 6.11 Entire Ae:reement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 6.12 Sovereie:n Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed regarding the City's potential liability under state or federal law. 6.13 Confidentiality. Notwithstanding anything to the contrary, including without limitation Section 6.4 above, the City will not disclose to any third party or use for any purpose inconsistent with this Agreement any confidential or proprietary non-public information it obtains during the term of this Agreement about Contractor's business, operations, financial condition, technology, systems, know-how, products, services, suppliers, customers, marketing data, plans and models and personnel. Contractor will not disclose to any third party or use for any purpose inconsistent with this Agreement any confidential Customer information it receives in connection with its performance of the services, except that Contractor may use (1) such information for collection and other purposes as would be permitted under federal law; (2) personal information provided by Customers to establish and maintain individual user accounts requested to be established by Customer with Contractor; and (3) aggregated transaction data and IVR and Website traffic information for marketing and public company reporting purposes. 6.14 Intellectual Prooertv. In order that the City may promote the Services and Contractor's role in providing the Services, Contractor grants to City a revocable, non-exclusive, royalty-free license to use Contractor's logo and other service marks (the "Contractor Marks") for such purpose only. City does not have any other right, title, license or interest, express or implied in and to any object code, software, hardware, trademark, service mark, trade name, trade dress, formula, system, know-how, telephone number, telephone line, domain name, URL, copyrighted image, text, script (including, without limitation, any script used by Contractor on the IVR or the W ebsite) or other intellectual property right of Contractor ("Contractor Intellectual Property"). All Contractor Marks, Contractor Intellectual Property, and the System Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 9 of 14 and all rights therein (other than rights expressly granted herein) and goodwill pertain thereto belong exclusively to Contractor. 6.15 Force Majeure. Contractor will be excused from performing the Services as contemplated by this Agreement to the extent its performance is delayed, impaired or rendered impossible by acts of God or other events that are beyond Contractor's reasonable control and without its fault or judgment, including without limitation, natural disasters, war, terrorist acts, riots, acts of a governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine restrictions, floods, explosions, labor strikes, labor walkouts, extraordinary losses of utilities (including telecommunications services), external computer "hacker" attacks and/or delays of common carriers. ARTICLE 7 TIME 7.1 Time of the Essence. The Contractor and City acknowledges and agree that time is of the essence for the completion of the Services to be performed and each parties respective obligations under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY; INSURANCE 8.1 Worker's Compensation. Upon the effective date of this Agreement, Contractor shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 Professional LiabilitvlMalpractice and General Liabilitv. Upon the effective date of this Agreement, Contractor shall submit proof of general liability insurance to cover claims for damages arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum limits of coverage of $1 ,000,000.00 per occurrence. 8.3 Insurance Certificate. The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whichever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and the Contractor by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured," except for professional liability/malpractice coverage. The Contractor Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 10 of 14 shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. For all Services performed pursuant to this Agreement, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by Sections 8.1 and 8.2. In the event Contractor fails to maintain said insurance, City, at its option, may elect to terminate this Agreement by written notice to Contractor. 8.4 Contractor Indemnification and Hold Harmless. For good, separate, and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the Contractor agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its governing officials, agents, employees, and attorneys (collectively, the "City Indemnitees") from and against all liability , demands, claims, losses, damages, costs or expenses (including reasonable attorney's fees and costs), incurred by any City Indemnitee as a result or arising out of (i) the willful misconduct or gross negligence of Contractor in performing the Services or (ii) a material breach by Contractor of its covenants in sections 2.1,3.2(3) or 6.13 of this Agreement. The indemnification provided above shall obligate the Contractor to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City Indemnitees as provided above. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This section shall survive termination of this Agreement. 8.5 City Indemnification and Hold Harmless. F or good, separate, and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the City agrees to the fullest extent permitted by law, to indemnify and hold harmless the Contractor, its affiliates, officers, directors, stockholders, agents, employees, and representatives (collectively, the "Contractor Indemnitees") from and against all liabilities, demands, claims, losses, damages, costs and expenses (Including, without limitation, reasonable attorneys' fees and expenses) incurred by any Contractor Indemnitee as a result or arising out of a material breach of City's covenants in Sections 5.2( e), 4.4, 6.13 or 6.14 of this Agreement. The indemnification provided above shall obligate the City to defend at its own expense or to provide for such defense, at the option of the Contractor, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the Contractor Indemnitees as provided above. In all events the Contractor shall be Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 11 of 14 permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This section shall survive termination of this Agreement. 8.6 Standard of Care. In performing its professional services hereunder, the Contractor will use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. 8.7 Warranty Disclaimer. Except as expressly set forth in this Agreement, Contractor disclaims all other representations or warranties, express or implied, made to the City or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise of any services or any goods provided incidental to the services provided under this Agreement. 8.8 Limitation of Liabilitv. Notwithstanding the foregoing, the parties agree that neither party shall be liable to the other for any lost profits, lost savings or other special, indirect or consequential damages, even if the party has been advised of or could have foreseen the possibility of such damages. Contractor's total liability for damages for any and all actions associated with this Agreement or the Services shall in no event exceed the specific dollar amount of the Convenience Fee paid to Contractor for the particular payment transaction which is the subject matter ofthe claim or damage. ARTICLE 9 TERMINATION OF THE CONTRACT 9.1 Termination. Either party may terminate this Agreement, with or without cause, by providing the other party with thirty (30) days advance written notice. 9.2 Upon Termination. Upon termination of this Agreement, the parties agree to cooperate with one another to ensure that all Payments are accounted for and all refundable transactions have been completed. Upon notice of termination, the Contractor shall cease all Services being provided hereunder unless otherwise directed by City in writing. 9.3 Waiver. Failure of the City to insist upon performance within any time period or upon a proper level or quality of performance shall not act as a waiver of the City's right to later claim a failure to perform on the part of the Contractor. ARTICLE 10 TERM OF AGREEMENT Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 12 of 14 10.1 Term. The term of this Agreement shall commence on the Effective Date of this Agreement and continue until terminated by either party. Services under this Agreement shall begin on a mutually agreed upon date. Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 13 of 14 IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CITY: ~ A1!/\ L~ ,?wrenzo-Luaces, City Clerk By: Jo Dated: -\ /::; ~/o';:; I CONTRACTOR: Attest: Print: Official Payments Corporation By: ~~~~ Secretary Dated: 6JI7fr Independent Contractor and Service Agreement City of Winter Springs - Official Payment Corporation Page 14 of 14 \itL1YltM ~III \V~ CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708.2799 Telephone (407) 327.1800 July 5, 2005 SENT VIA CERTIFIED MAIL Michael Lawler, Senior Vice President Official Payments Corporation 177 Technology Parkway Auburn, AL 36830 Dear Mr. Lawler: Enclosed is the original executed Independent Contractor and Service Agreement between the City of Winter Springs, Florida and Official Payments Corporation (OPC). Per our discussions, one original executed copy of this agreement was kept by the City for our official records. I will now convey to my staff and the Information Services Department to coordinate with Sheila Raebel, Regional Account Manager with OPC, to begin setting up the credit card serVice process with the City. Please contact me at (407) 327-5960 with questions. Sincerely, ~.}:uRJw Michelle Greco Finance Director CC: Iris Freeman, Revenue Officer 'erk . _ ;~4. ervrces Director Attachments as stated