HomeMy WebLinkAboutPoint and Pay 2010 08 26 POINT AND PAY
E- PAYMENT SERVICES AGREEMENT
Parties:
Point and Pay LLC ( "PNP ") ;[City of WinterSprings]( "Client ")
an Oregon limited liability company
Terms solely responsible for maintaining the confidentiality and security
of the logons and passwords provided by PNP. Client will cause
SECTION 1 E- PAYMENT SERVICES each of its representatives to change the initial password, keep
the passwords confidential, refrain from sharing passwords
1.1 Access to Payment Modules and /or logon information with any unauthorized user, and use no
Pursuant to this E- Payment Services Agreement (this other password to access the Counter Module. PNP shall be
"Agreement "), PNP grants Client a limited, non- exclusive, non- entitled to rely on any communications it receives under Client's
transferable and terminable license for the duration of the Term passwords, logon information, and /or account number as having
to use the electronic payment services (the "Services ") and been sent by Client, without conducting any further checks as to
payment modules (each, a "Module ") chosen in the attached the identity of the user of such information. PNP will not be
merchant application ( "Merchant Application ") to enable responsible for the operability or functionality of any of Client's
Client's customers ( "Customers ") to make payments to Client computer equipment, system, browser or Internet connectivity.
using a Payment Device. "Payment Device" means the
payment type(s) chosen by Client on the Merchant Application. 1.3 Payment Device Transactions
A description of all Modules, Services, training and support All Payment Device transactions using the Services will be
offered by PNP is attached as Exhibit A (the "Services processed through a secured link. The parties to each Payment
Description "). Device transaction will be the Customer cardholder, the Client
and PNP.
At the time of Client's execution of this Agreement, Client shall
also return the completed Merchant Application to PNP. Client 1.4 Service Promotion
will complete the Merchant Application in order to enter into a Client will use reasonable efforts to promote the Services and
Merchant Transaction Processing Agreement (as defined in the build awareness of the Services with its customers through
Merchant Application). This Agreement is contingent upon the various media including, but not limited to:
approval of the Merchant Application and shall terminate • Print: Bill inserts, counter displays, and
immediately if the Merchant Application is rejected or the announcements in Client's newsletter
Merchant Transaction Processing Agreement is terminated. • Online: Home page announcements with an easily
Subject to the terms and conditions of this Agreement, the accessible, one -click link to payments page.
Services may be also be used by the affiliated offices, bureaus, • Phone /IVR: Pre - recorded message with the ability to
agencies or departments of Client ( "Affiliates "). Each Affiliate transfer to payments IVR (e.g., "Press 2 to make a
shall complete a Merchant Application prior to commencement payment ") or provide the IVR phone number to call.
of the Services. • Joint Press Releases: The parties shall mutually agree
upon press releases announcing the availability of
1.2 Client Representatives electronic payment services and the partnering of
PNP will provide Client's authorized representatives with a logon Client and PNP.
and password to access the Counter Module. Client shall be
PNP E- Payment Services Agreement v2.0 rev 071008 1
1.5 Trademark License interests in and to the PNP Intellectual Property Rights, and all
PNP grants Client a limited, non - exclusive, non - transferable copies, revisions, modifications, updates, and upgrades thereof.
license to use the PNP trademarks, service marks and logos Client agrees not to remove, alter or destroy any copyright,
provided by PNP to Client (the "Trademarks ") solely in patent notice, trademark or other proprietary markings or
connection with Client's promotion of the Services to confidential legends placed on or within any portion of the PNP
Customers. Client shall not alter the Trademarks nor use the Intellectual Property Rights. For purposes of this Agreement,
Trademarks in any way which is disparaging, dilutive or "Intellectual Property Rights" means all the intellectual
otherwise adversely affects the reputation of PNP. property, industrial and other proprietary rights, protected or
protectable, under the laws of the United States, any foreign
1.6 Client Logo License country, or any political subdivision thereof, including (a) all
Client grants PNP a limited, non - exclusive, non - transferable trade names, trade dress, trademarks, service marks, logos,
license to use its applicable logos, copyrighted works and brand names and other identifiers, (b) copyrights, moral rights
trademarks ( "Client Marks ") solely in connection with the (including rights of attribution and rights of integrity), (c) all trade
Services provided to Client. Client shall provide the Client secrets, inventions, discoveries, devices, processes, designs,
Marks to PNP for use with the Services. Client represents that it techniques, ideas, know -how and other confidential or
has all intellectual property rights required for Client's and PNP's proprietary information, whether or not reduced to practice, (d)
use of Client Marks, and shall indemnify PNP against any third all domestic and foreign patents and the registrations,
party claims that the Client Marks infringe the intellectual applications, renewals, extensions and continuations (in whole
property rights of a third party. or in part) thereof, and (e) all goodwill associated with any of the
foregoing and (f) all rights and causes of action for infringement,
SECTION 2 COMPENSATION misappropriation, misuse, dilution or unfair trade practices
associated with (a) through (d) above.
2.1 Services Transaction Fee
PNP will charge the transaction fee to use the Services set forth 3.2 Ownership and Use of PNP Materials
on the Merchant Application. If Services fees are charged Any software developed by or on behalf of PNP for use in
directly to Customers by PNP, Customers will receive a notice connection with the Services remains the exclusive property of
each time they use the Services stating that the Services are PNP. Client will not sell, transfer, barter, trade, license, modify
provided by PNP and that a convenience fee is charged for use or copy any such software. Web pages accessible through use
of the Services. PNP may change the amount of such fee by of the Services are the copyrighted intellectual property of PNP
notifying Client of such new amount at least thirty (30) days prior and may not be copied in whole or part by anyone. Any training
to such change. materials (including, but not limited to, webinars and manuals)
provided to Client by PNP shall remain the exclusive property of
2.2 Activation Fee PNP. PNP grants Client and Client's personnel a limited, non -
If applicable, Client shall pay the one -time Activation Fee set exclusive, non - transferrable license to use and to make copies
forth on the Merchant Application. If the Activation Fee or any of the training materials with its personnel solely in connection
portion of the Activation Fee is waived by PNP and the Client with the Services. Training materials may not be modified by
does not implement the Service under this Agreement within six Client or its personnel or disclosed to any third party, including
months after the Effective Date, other than due to a material Client's end -user customers. Client shall ensure all personnel
breach by PNP, the waived portion of the Activation Fee shall shall complete and review all training materials prior to using the
become immediately due and payable. Services.
2.3 Charge -backs and Returns 3.3 Reverse Engineering
Unless otherwise specified in the Merchant Application, PNP will Client will not reverse engineer, reverse assemble, decompile or
set off (a) the amount of any charge- backs, refusals to pay and disassemble any of PNP's intellectual property, nor will Client
returns from any amounts otherwise owing by PNP to Client and attempt to do so or enable any third party to do so or otherwise
(b) a transaction handling fee for charge -backs and non- attempt to discover any source code, modify the Service in any
sufficient funds (NSF) as specified in the Merchant Application. manner or form, or use unauthorized modified versions of the
Service, including (without limitation) for the purpose of building
SECTION 3 INTELLECTUAL PROPERTY; a similar or competitive product or service or for the purpose of
CONFIDENTIALITY obtaining unauthorized access to the Service. Client is expressly
prohibited from sublicensing use of the Service to any third
3.1 No Transfer or License parties. If Client becomes aware that any person has engaged
Except for the rights expressly granted to Client in this or is likely to have engaged in any of the activities described in
Agreement, no PNP Intellectual Property Right is transferred or this Section 3.3, Client will promptly notify PNP.
licensed to Client pursuant to this Agreement, by implication or
otherwise. PNP reserves and retains all rights, title and 3.4 Confidential lnformation
PNP E- Payment Services Agreement v2.0 rev 071008 2
3.4.1 Any Confidential Information provided by PNP to Client The term Confidential Information will not apply to information
pursuant to this Agreement will remain the exclusive property of that: (a) is or becomes generally available to the public other
PNP. Client will disclose such Confidential Information only to than as a result of a disclosure by Client in breach of this
those of its representatives and employees who need to know Agreement; (b) was within Clients possession prior to its
such Confidential Information for purposes of performing this disclosure by or on behalf of PNP, provided that the discloser of
Agreement, who are informed of the confidential nature of the such information was not known by Client to be bound by a
Confidential Information and who agree, for the benefit of PNP, confidentiality agreement with, or other contractual, legal or
to be bound by the terms of confidentiality in this Agreement. fiduciary obligation of confidentiality to, PNP with respect to
Client will, and will cause each of its representatives and such information; (c) becomes available to Client on a non -
employees, to keep confidential and not to disclose in any confidential basis from a source other than PNP, provided that
manner whatsoever any Confidential Information provided by such source is not known by Client to be bound by a
PNP pursuant to this Agreement, and not to use such confidentiality agreement with, or other contractual, legal or
Confidential Information, in whole or in part, directly or indirectly, fiduciary obligation of confidentiality to, PNP with respect to
for any purpose at any time other than for the purposes such information; or (d) is developed independently by Client, as
contemplated by this Agreement. Notwithstanding the demonstrated by the written records of Client, without use of
foregoing, if Client is a city, county, township or similar entity, or such information. The confidentiality obligations of Client
government agency or department thereof, Client may disclose pursuant to this Agreement will not apply to any Confidential
Confidential Information as necessary to comply with applicable Information of PNP that Client is legally compelled to disclose.
public records laws. In the event Client becomes legally compelled to disclose any
3.4.2 For purposes of this Agreement, "Confidential Confidential Information provided pursuant to this Agreement,
Information" means all nonpublic or proprietary information of Client will provide PNP with prompt written notice so that PNP
PNP, including proprietary, technical, development, marketing, may seek a protective order or other appropriate remedy or
sales, operating, performances, cost, know -how, business and waive compliance with the confidentiality provisions of this
process information, computer programs and programming Agreement.
techniques, security features (including, without limitation, multi-
level access and log -in features, audit trail setup, interfaces 3.6 Failure to Comply
between the Counter Module and the Internet or IVR Modules), If Client fails to comply with any of its obligations pursuant to this
all record bearing media containing or disclosing such Section 3, PNP will have the right to immediately terminate this
information and techniques, and anything marked confidential, Agreement by providing written notice of such termination to
that is disclosed by PNP to Client pursuant to this Agreement. Client.
Confidential Information also includes the terms and conditions
of this Agreement. 3.7 Survival
The rights and obligations of the parties provided for in this
3.5 Exclusions Section 3 will survive any expiration or termination of this
Agreement or its term.
SECTION 4 WARRANTIES; DISCLAIMER
4.1 Warranties
4.1.1 Each party represents and warrants that it has the full
legal right, authority and power to enter into this Agreement and
perform its obligations hereunder.
4.1.2 PNP represents and warrants that the Services will be
provided in a professional, workman -like manner consistent with
industry standards.
4.2 Disclaimers
4.2.1 PNP does not represent that Client's or its Customers use
of the Services will be uninterrupted or error -free, or that the
system that makes the Services available will be free of viruses
or other harmful components resulting from the Internet or any
third party providers or products outside the control of PNP.
PNP E- Payment Services Agreement v2.0 rev 071008 3
4.2.2 EXCEPT FOR THE WARRANTIES EXPRESSLY SET SERVICE IS PROVIDED TO CLIENT ON AN "AS IS" AND "AS
FORTH IN THIS SECTION 4, PNP DISCLAIMS ALL AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY.
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, SECTION 5 LIMITATIONS OF LIABILITY AND
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A OBLIGATION
PARTICULAR PURPOSE, AND NON- INFRINGEMENT. THE
PNP E- Payment Services Agreement v2.0 rev 071008 4
5.1 Damages and Liability Limit TermThe initial term of this
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE Agreement will commence on the Effective
OTHER PARTY OR ANY THIRD PARTY IN CONNECTION Date and will end on the first (1st)
WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, anniversary of the Effective Date ( "the
CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR Initial Term "). The parties shall have
PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST two (2) options to extend the term of
PROFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED this Agreement for one (1) year each
OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY (each a "Renewal Term" and the Initial
RELEASES THE OTHER PARTY AND ALL OF THE OTHER
PARTY'S AFFILIATES, EMPLOYEES, AND AGENTS FROM Term and any Renewal Term may be
ANY SUCH DAMAGES. IN NO EVENT WILL PNP HAVE OR referred to as a "Term ") . Any such
INCUR ANY LIABILITY TO CLIENT OR ANY THIRD PARTY IN Renewal Term shall be evidenced in
EXCESS OF THE AGGREGATE COMPENSATION RECEIVED writing and executed by both parties
BY PNP FOR THE SIX -MONTH PERIOD IMMEDIATELY hereto at least sixty (60) days prior to
PRECEDING THE EVENT GIVING RISE TO A CLAIM FOR the expiration of the current term. The
SUCH LIABILITY. THE FOREGOING EXCLUSIONS AND term of this Agreement will terminate at
LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT the end of the Initial Term or any
PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY subsequent Renewal Term if either party
FAILS ITS ESSENTIAL PURPOSE. provides written notice of such
termination to the other party at least
5.2 Refusals of Payment sixty (60) days prior to the expiration
PNP will not be liable for charge -backs or other refusals of of the applicable Term.
payment initiated by any Customer. All such charge -backs and
other refusals of payment will be refunded by PNP to the
Customer and Client will mark and otherwise treat the related
Customer account as "unpaid."
5.3 Errors and Omissions
PNP will not be liable for any errors or omissions in data
provided by Client or Customers. Client will be responsible for
the accuracy of data provided to PNP for use in providing the
Services.
5.4 Merchant of Record; Bank Actions
Client shall act as the Merchant of Record for Customer
payment transactions made with Visa and MasterCard Payment
Devices. PNP will not be liable for any errors, omissions or
delays attributable to the acts or omissions of any bank or other
third party involved in the processing of any Payment Device
payment.
SECTION 6 CARDHOLDER DATA SECURITY
To the extent applicable, each of the parties shall be required to
comply at all times with the Payment Card Industry Data
Security Standard Program ( "PCI -DSS ") in effect and as may be
amended from time to time during the term of the Agreement.
The current PCI -DSS specifications are available on the PCI
Security Standards Council website at
https://www.pcisecuritystandards.org.
SECTION 7 EXCLUSIVITY
Client agrees that PNP will be the exclusive provider of fee -
based electronic payment services and that Client will not;
procure similar such services from any other party.
SECTION 8 TERM AND TERMINATION
PNP E- Payment Services Agreement v2.0 rev 071008 5
8.1 PNP will not be responsible for its failure to perform under this
8.2 In the Event of Breach; Effect on Affiliates Agreement due to causes beyond its reasonable control,
Subject to the opportunity to cure set forth below, either party including acts of God, wars, riots, revolutions, acts of civil or
may terminate this Agreement upon sixty (60) days written military authorities, terrorism, fires, floods, sabotage, nuclear
notice to the other party in the event of a material, uncured incidents, earthquakes, storms, or epidemics. If the provision of
breach of any provision of this Agreement by the other party. Services under this Agreement is delayed by such an event or
Such notice by the complaining party shall expressly state all of condition, PNP will promptly notify Client thereof. PNP will use
the reasons for the claimed breach in sufficient detail so as to commercially reasonable efforts to overcome any such cause
provide the alleged breaching party a meaningful opportunity to for delay as soon as is reasonably practicable.
cure such alleged breach ( "Notice ").
SECTION 11 GOVERNING LAW
Following receipt of Notice, the alleged breaching party shall This Agreement will be interpreted, construed and enforced in
have sixty (60) days to cure such alleged breach. Upon all respects in accordance with the laws of the State of Florida
termination or expiration of this Agreement, Client shall have no without reference to its conflicts of law principles.
rights to continue use of the Service or the Modules. Expiration
or termination of the Agreement by Client or PNP shall also SECTION 12 NOTICES
terminate the Affiliates' rights under the Agreement unless All notices or other communications required or permitted by this
otherwise agreed by the parties in writing. PNP may terminate Agreement must be in writing and will be deemed to have been
the Agreement solely with respect to an individual Affiliate duly given when delivered personally to the party for whom such
without affecting the rights and obligations of Client and other notice was intended, or upon actual receipt if sent by facsimile
Affiliates under the Agreement. or delivered by a nationally recognized overnight delivery
service, or at the expiration of the third day after the date of
8.3 Modification to or Discontinuation of the Service deposit if deposited in the United States mail, postage pre -paid,
PNP reserves the right at any time and from time to time to certified or registered, return receipt requested, to the respective
modify, temporarily or permanently, the Service (or any part parties at:
thereof). In addition, PNP will have the right to discontinue
accepting any Payment Device by providing not less than ten If to Client: See Merchant Application
(10) days' written notice to Client. In the event that PNP
modifies the Service in a manner which removes or disables a If to PNP: Point and Pay LLC
feature or functionality on which Client materially relies, PNP, at 11950 SW Garden Place
Client's request, shall use commercially reasonable efforts to Portland, OR 97223
substantially restore such functionality to Client. In the event that Attn: Legal Department
PNP is unable to substantially restore such functionality within Fax: 503 - 790 -2525
sixty (60) days, Client shall have the right to terminate the
Agreement. Client acknowledges that PNP reserves the right to SECTION 13 MISCELLANEOUS
discontinue offering the Service and any support at the The headings of sections and subsections of this Agreement are
conclusion of Client's then - current Term. Client agrees that PNP for convenience of reference only and will not be construed to
shall not be liable to Client nor to any third party for any alter the meaning of any provision of this Agreement. PNP is an
modification of the Service as described in this Section. independent contractor and nothing in this Agreement will be
deemed to create any agency, employee - employer relationship,
SECTION 9 PAYMENT DEVICE TRANSACTION partnership, franchise or joint venture between the parties.
DEPOSITS Except as otherwise specifically provided in this Agreement,
The exact amount of each approved Payment Device neither party will have, or represent that it has the right, power
transaction will be electronically deposited into the Client bank or authority to bind, contract or commit the other party or to
account identified on the Merchant Application. PNP shall create any obligation on behalf of the other party. Each of the
initiate such deposits as specified on the attached Merchant parties will have any and all rights and remedies available to
Application. PNP will provide Client's authorized employees with them under all applicable laws. The remedies provided for in
access to PNP's online transaction reports for reconciliation this Agreement will be deemed to be non - exclusive and in
purposes. addition to any other available remedy at law or in equity. All
rights and remedies are cumulative and may be exercised
SECTION 10 FORCE MAJEURE singularly or concurrently. Client may not assign or transfer any
of its rights or delegate any of its obligations under this
Agreement to any third party, by operation of law or otherwise,
without the prior written consent of PNP. Any attempted
assignment or transfer in violation of the foregoing will be void.
This Agreement will be binding upon, and inure to the benefit of,
PNP E- Payment Services Agreement v2.0 rev 071008 6
the successors and permitted assigns of the parties. Client Nothing contained in this Agreement establishes, creates, or is
shall comply with all applicable laws, rules, treaties, and intended to or will be construed to establish or create, any right
regulations in its performance of this Agreement. If any in or obligation to any third party. This Agreement, the Exhibit(s)
provision of this Agreement is held by a court of law to be illegal, and the Merchant Application set forth the entire agreement and
invalid or unenforceable, the remaining provisions of this understanding of the parties with respect to the subject matter
Agreement will not be affected and the illegal, invalid, or hereof and supersedes any and all prior or contemporaneous
unenforceable provision will be deemed modified such that it the understandings and agreements, whether written or oral,
intention of the parties to the fullest extent possible. No between the parties with respect to such subject matter.
amendment or modification of this Agreement will be effective
unless it is in writing and executed by both of the parties.
The parties have duly executed this Agreement as of the date of the last signature below (the "Effective Date ").
Point and Pa '[City of WinterSprings] /
By: By:
Name: ot/ / Name* Drat h
Title: Title: C.A M' GIDfPX
z
Date: $_z6 -/0 Date: 0 t U17/0 I
PNP E- Payment Services Agreement v2.0 rev 071008 7
•
Exhibit A
Services Description
The following is a description of all Services and Modules offered by PNP. PNP shall provide the Services to Client and its end -user
customers via the specific Modules and Payment Devices chosen by Client in the Merchant Application. Applicable fees, if any, for Client's
elections are set forth on the Merchant Application. The Services include support and training outlined below at no additional charge to
Client.
Service Modules
• Counter Module. The Counter Module allows customers to make payments to Client in a face-to -face environment or over the
phone using a Payment Device. PNP will issue unique confirmation numbers to customers who have completed a payment
transaction using the Counter Module. The Counter Module also enables Client's staff to access reports via the web. The
Counter Module is required to access the PNP Services. The Counter Module may be used in conjunction with or independently
of point -of -sale (POS) terminals.
• Web Module. THE WEB MODULE MUST BE CHOSEN TOGETHER WITH THE COUNTER MODULE. The Web Module
allows customers to make payments to Clients online using a Payment Device via a secure website hosted by PNP. Customers
who elect to make payments via the Internet can follow a Zink from the Client website to the Client - branded, PNP- hosted web
pages to submit a payment. PNP will issue unique confirmation numbers to customers who have completed a payment
transaction using the Web Module. PNP shall create the Client- branded, PNP- hosted web pages at no additional charge. Client
may elect bill presentment and account validation functionality for the one -fime set -up fee set forth on the Merchant Application
under "Data File Integration."
• Interactive Voice Response (IVR) Module. THE IVR MODULE MUST BE CHOSEN TOGETHER WITH THE COUNTER
MODULE. The IVR Module allows Customers to make payments to Clients over the phone using a Payment Device. The
Customer calls a toll -free phone number provided and managed by PNP to access the Client branded IVR. The IVR system
recognizes Customer instructions through making a payment; the phone keypad is used to enter Payment Device numbers. The
IVR system is configured and tested by PNP. PNP will issue unique confirmation numbers to customers who have completed a
payment transaction using the IVR Module. Election of the IVR Module includes a Client- branded IVR environment and, if
applicable, Client shall pay the one -time IVR set -up fee for the IVR Module set forth on the Merchant Application. In addition,
Client may elect to have bill presentment and account validation functionality enabled through the IVR for the one -time set -up fee
on the Merchant Application under Data File Integration."
Customer Payment Devices
Each of the Modules can provide the Customer with the ability to pay by Credit Card, Debit Card and /or Electronic Check.
Training
PNP shall provide instruction manuals and up to four (4) hours of webinar training to Client and Client personnel in connection with the
Modules chosen by Client.
Support
The following support shall be provided to Client and Client's customers at no additional charge during the term of the Services:
• First Level Support. PNP shall provide first -level support to Customers via PNP's call center. Customer service representatives
shall be available 24x7 to handle customer inquiries.
• Second Level Support. PNP shall provide first -level support to Client via telephone. Second level support shall be available
Monday through Friday during normal business hours.
Support availability shall be exclusive of downtime due to scheduled maintenance or events out of PNP's control. Support for the Products
may be modified, suspended or terminated in PNP's sole discretion upon prior written notice.
PNP E- Payment Services Agreement v2.0 rev 071008 8