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4578 - Ordinance and Contract ExecutedSALega10ur Documents0rdinances111Merchant Services Contract OrdElavondoc ORDINANCE NO 2011047 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON AWARDING A MERCHANT SERVICES CONTRACT TO ELAVON INC FOR A TERM BEGINNING JUNE 1 2011 AND ENDING MAY 31 2016 AUTHORIZING THE CITY MANAGER TO EXECUTE A MERCHANT SERVICES CONTRACT WITH ELAVON INC FOR CREDITDEBIT AND CHECK PROCESSING SERVICES AUTHORIZING THE CITY MANAGER AND OTHER CITY EMPLOYEES TO TRANSACT BUSINESS WITH ELAVON INC AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS the City of Denton has solicited received and tabulated proposals for the merchant services contract for a term beginning June 1 2011 and ending on May 31 2016 although it has been determined that merchant services are not presently considered depository services as defined in the Depositories for Municipal Funds Act Texas Local Government Code Chapter 105 the City did so as a best practice approach and WHEREAS the City of Denton has received a proposal for merchant services from a merchant services institution desiring to provide merchant services as requested in the proposals and WHEREAS after such opening the City Council found on the basis of the request for proposals that Elavon Inc has submitted the proposal offering the most favorable terms and conditions to the City for the provision of such services NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 Elavon Inc is hereby selected to provide creditdebit check processing services beginning June 1 2011 and ending May 31 2016 The City Manager or his designee is authorized to execute a merchant services contract with Elavon Inc substantially in the form of the attached contract SECTION 2 The contract including all attached exhibits shall be attached hereto and made a part hereof and the same is hereby in all things approved and accepted The City Manager or his designee is hereby authorized to execute any other documents and agreements on behalf of the City that are consistent with the services authorized by the contract SECTION 3 The following officials City Manager Assistant City Managers and the Chief Financial Officer are hereby authorized to transact business with the above listed institution regarding creditdebit and check processing services for the City of Denton SECTION 4 The City Manager is authorized to make the expenditure of funds and fees and take the actions as indicated in the attached contract and exhibits SECTION 5 This Ordinance shall become effective immediately upon its passage and approval SALegalOur DocumentsOrdinancesl IWerchant Services Contract OrdElavondoc 4PASSEDANDAPPROVEDthisthe day of 2011 MA B UGHS AYOR ATTEST JENNIFER WALTERS CITY SECRETARY BY APP VEDA TO LEGAL FORM ANITA BURGESS CITY ATTORNEY BY l Page 2 MERCHANT SERVICES CONTRACT BY AND BETWEEN CITY OF DENTON TEXAS AND ELAVON INC PROPOSAL NO 4578 St THIS CONTRACT Contract is made and entered into this day of AD 2011 by and between Elavon Inc a corporation whose address is One Concourse Parkway Suite 300 Atlanta GA 30328 hereinafter referred to as Elavon and the CITY OF DENTON TEXAS a home rule municipal corporation hereinafter referred to as City to be effective upon approval ofthe Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee For and in consideration of the covenants and agreements contained herein and for the mutual benefits to be obtained hereby the parties agree as follows 1 SCOPE OF SERVICES Elavon shall provide all labor supervision materials and equipment necessary for the processing of payment transactions These products and services shall be provided in accordance with Elavons Proposal in response thereto a copy of which is attached hereto and incorporated herein for all purposes as Exhibit A The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference a Payment Device Processing Agreement Agreement and any applicable Schedules Exhibit A1 b Elavons Proposal Exhibit A2 c Insurance Requirements Exhibit B d Form CIQ Conflict ofInterest Questionnaire Exhibit C These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all In the event of an inconsistency or conflict in any of the provisions of the Contract documents the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above These documents shall be referred to collectively as Contract Documents II TIME OF COMPLETION Non applicable III TERM OF CONTRACT stated The term of this Contract shall be five 5 years from date of contract execution unless otherwise City ofDenton TX AttachmentA MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL IV WARRANTY Elavon warrants and covenants to City that all goods and services provided by Elavon Elavons subcontractors and agents under the Agreement shall be free of defects and produced and performed in a skillful and workmanlike manner and shall comply with the specifications for said goods and services as set forth in this Contract and the Agreement and the Proposal attached hereto and incorporated herein as Exhibits AI and A2 Elavon warrants that the goods and services provided to City under this Contract shall be free from defects in material and workmanship for a period of five 5 years commencing on the date that City issues final written acceptance of the project V PAYMENT Payments for Elavons fees due hereunder shall be made to Elavon following Citys acceptance of the work and within thirty 30 days of receiving Elavons invoice for the products and services delivered Elavon recognizes that this Contract shall commence upon the effective date herein and continue in full force and effect until termination in accordance with its provisions Elavon and City herein recognize that the continuation of any contract after the close of any given fiscal year of the City of Denton which fiscal year ends on September 30th of each year shall be subject to Denton City Council approval In the event that the Denton City Council does not approve the appropriation of funds for this Contract the City will provide Elavon with sixty 60 days written notice of such termination and the Contract shall terminate at the end of the fiscal year for which funds were appropriated and the parties shall have no further obligations hereunder except that the City will continue to be responsible for Chargebacks returns adjustments and other amounts related to Transactions processed prior to termination as further described in Exhibit A1 VI PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC Elavon shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply with all applicable provisions of Federal State and Municipal safety laws The safety precautions actually taken by Elavon and the adequacy thereof shall be the sole responsibility of the Elavon Elavon shall indemnify City for any and all losses arising out of or related to a breach of this duty by Elavon pursuant to paragraph VIII INDEMNIFICATION and paragraph IX COMPLIANCE WITH APPLICABLE LAWS set forth herein VII LOSSES FROM NATURAL CAUSES Unless otherwise specified all loss or damage to Elavon arising out of the nature ofthe work to be done or from the action of the elements or from any unforeseen circumstances in the prosecution of the same or from unusual obstructions or difficulties which may be encountered in the prosecution of the work shall be sustained and borne by Elavon at its own cost and expense except for those losses or damages set forth in the Agreement Exhibit A1 City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL VIII INDEMNIFICATION Elavon shall release defend indemnify and hold the City its elected officials officers and employees harmless from and against all claims damages injuries including death property damages including loss of use losses demands suits judgments and costs including attorneys fees and expenses in any way arising out of related to or resulting from a Elavons breach of the Contract or B Elavons negligence gross negligence or willful misconduct In the event the City is a named party to a suit arising out ofthe subject matter of this Contract the City shall have reasonable input into the selection of defense counsel to be retained by Elavon in fulfilling its obligation hereunder to defend and indemnify City City reserves the right to provide a portion or all of its own defense at its own expense however City is under no obligation to do so Any such action by City is not to be construed as a waiver of Elavons obligation to defend City or as a waiver of Elavons obligation to indemnify City pursuant to this Contract Elavon shall retain defense counsel within fourteen 14 business days of Citys written notice that City is invoking its right to indemnification under this Contract If Elavon fails to retain counselwithin such time period City shall have the right to retain defense counsel on its own behalf and Elavon shall be liable for all reasonable costs incurred by City IX COMPLIANCE WITH APPLICABLE LAWS Elavon shall at all times observe and comply with all Federal State and local laws ordinances and regulations including all amendments and revisions thereto which in any manner affect Elavon or the work and shall indemnify and save harmless City against any claim related to or arising from the violation of any such laws ordinances and regulations whether by Elavon its employees officers agents subcontractors or representatives If the City observes that the work is at variance therewith the City shall promptly notify Elavon in writing X VENUE The laws of the State of Texas shall govern the interpretation validity performance and enforcement of this Contract The parties agree that this Contract is performable in Denton County Texas and that exclusive venue shall lie in Denton County Texas XI ASSIGNMENT AND SUBLETTING Elavon agrees to retain control and to give full attention to the fulfillment of this Contract that this Contract shall not be assigned or sublet without the prior written consent of City and that no part or feature of the work will be sublet to anyone objectionable to City Elavon further agrees that the subletting of any portion or feature of the work or materials required in the performance of this Contract shall not relieve Elavon from its full obligations to City as provided by this Contract Notwithstanding the foregoing the City recognizes that Elavon may use third party contractors for a portion of its services and agrees to such use as provided in Section I Ib of the Agreement Exhibit A 1 City dDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL XII INDEPENDENT CONTRACTOR Elavon covenants and agrees that Elavon is an independent contractor and not an officer agent servant or employee of City that Elavon shall have exclusive control of and exclusive right to control the details of the work performed by Elavon hereunder and all persons performing same on behalf of Elavon and shall be responsible for the acts and omissions of its officers agents employees contractors subcontractors and consultants that the doctrine of respondent superior shall not apply as between City and Elavon its officers agents employees contractors subcontractors and consultants and nothing herein shall be construed as creating a partnership or joint enterprise between City and Elavon XIII INSURANCE AND CERTIFICATES OF INSURANCE Elavon shall procure and maintain for the duration ofthe contract insurance coverage as set forth in the Insurance Requirements marked Exhibit B attached hereto and incorporated herein by reference Elavon shall provide a signed insurance certificate verifying that they have obtained the required insurance coverage prior to the effective date of this Contract XIV HINDRANCES AND DELAYS No claims shall be made by either party for damages resulting from hindrances or delays from any cause during the progress of any portion ofthe work embraced in this Contract XV AFFIDAVIT OF NO PROHIBITED INTEREST Elavon acknowledges and represents itis aware of all applicable laws City Charter and City Code of Conduct regarding prohibited interests and that the existence of a prohibited interest at any time will render the Contract voidable Elavon has executed the Conflict of Interest Questionnaire attached and incorporated herein as Exhibit C XVI SEVERABILITY The provisions of this Contract are severable If any paragraph section subdivision sentence clause or phrase of this Contract is for any reason held to be contrary to the law or contrary to any rule or regulation having the force and effect of the law such decisions shall not affect the remaining portions of the Contract However upon the occurrence of such event either party may terminate this Contract by giving the other party sixty 60 days written notice XVII TERMINATION City may at its option with or without cause and without penalty or prejudice to any other remedy it may be entitled to at law or in equity or otherwise under this Contract terminate further work City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL under this contract in whole or in part by giving at least sixty 60 days prior written notice thereof to Elavon with the understanding that all services being terminated shall cease upon the date such notice is received XVIII ENTIRE AGREEMENT This Contract and its attachments and the documents incorporated therein embody the entire agreement between the parties and may only be modified in writing if executed by both parties XIX CONTRACT INTERPRETATION Although this Contract is drafted by City should any part be in dispute the parties agree that the Contract shall not be construed more favorably for either party XX SUCCESSORS AND ASSIGNS This Contract shall be binding upon the parties hereto their successors heirs personal representatives and assigns as further described in Section 15e of the Agreement Exhibit Al XXI HEADINGS The headings of this Contract are for the convenience of reference only and shall not affect in any manner any ofthe terms and conditions hereof XXII RIGHT TO AUDIT The City shall have the right to audit and make copies of the books records and computations pertaining to this agreement Elavon shall retain such books records documents and other evidence pertaining to this agreement during the contract period and five years thereafter except if an audit is in progress or audit findings are yet unresolved in which case records shall be kept until all audit tasks are completed and resolved These books records documents and other evidence shall be available within 10 business days of written request Further Elavon shall also require all subcontractors material suppliers and other payees to retain all books records documents and other evidence pertaining to this agreement and to allow the City similar access to those documents All books and records will be made available at Elavons offices The cost ofthe audit will be borne by the City unless the audit reveals an overpayment of 1 or greater If an overpayment of 1 or greater occurs the reasonable cost of the audit including any travel costs must be borne by Elavon which must be payable within thirty 30 business days of receipt of an invoice Failure to comply with the provisions of this section shall be a material breach of this Contract and shall constitute in the Citys sole discretion grounds for termination thereof Each of the terms books records documents and other evidence as used above shall be construed to include drafts and electronic files even if such drafts or electronic files are subsequently used to generate or prepare a final printed document City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL XXIII NONEXCLUSIVE CONTRACT This Contract is nonexclusive and nothing contained herein shall be construed so as to prevent the City from granting other like or similar rights privileges and contracts to any other person firm or corporation City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL IN WITNESS WHEREOF the parties ofthese presents have executed this agreement in the year and day first above written ELAVON INC BY Date 5 Name no7WV Title 17eUioxrylc4BxesIoeot Elavon Inc 7300 Chapman Highway Knoxville TN 37920 CITY OFD TON XA BY i CITY MANAGER DATE Go i I DEPARTMENTAL APPROVAL APPROVED AS TO LEGAL FORM ANITA BURGESS CITY ATTORNEY BY DATE City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT B CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidders attention is directed to the insurance requirements below It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein If an apparent low bidder fails to comply strictly with the insurance requirements that bidder may be disqualifiedfrom award ofthe contract Upon bid award all insurance requirements shall become contractual obligations which the successful bidder shall have a duty to maintain throughout the course ofthis contract STANDARD PROVISIONS Without limiting any of the other obligations or liabilities ofthe Contractor the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton Owner the minimum insurance coverage as indicated hereinafter As soon as practicable after notification ofbid award Contractor shallfile with the Purchasing Department satisfactory certificates of insurance containing the bid number and title of the project Contractor may upon written request to the Purchasing Department ask for clarification of any insurance requirements at any time however Contractors are strongly advised to make such requests prior to bid opening since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted approved and signed by the City ofDenton All insurancepolicies proposed or obtained in satisfaction ofthese requirements shall comply with thefollowing general specifications and shall be maintained in compliance with these general specifications throughout the duration ofthe Contract or longer ifso noted Each policy shall be issued by a company authorized to do business in the State of Texas with an AM Best Company rating of at least A Any deductibles or selfinsured retentions shall be the exclusive responsibility of contractor Liability policies shall be endorsed to provide the following Name as additional insured the City ofDenton its Officials Agents Employees and volunteers That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought The inclusion of more than one insured shall not operate to increase the insurers limit of liability City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQElavon 032211 FINAL EXHIBIT B Cancellation The City requires 30 day written notice should any of the policies described on the certificate be cancelled before the expiration date Should any of the required insurance be provided under a claimsmade form Contractor shall maintain such coverage continuously throughout the term of this contract and without lapse for a period of three years beyond the contract expiration such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered Should any ofthe required insurance be provided under a form ofcoverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance Should any required insurance lapse during the contract term requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract effective as ofthe lapse date If insurance is not reinstated City may at its sole option terminate this agreement effective on the date of the lapse City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT B SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications and shall be maintained in compliance with these additional specifications throughout the duration ofthe Contract or longer ifso noted X A General Liability Insurance General Liability insurance with combined single limits of not less than 100000000 shall be provided and maintained by the Contractor The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies If the Commercial General Liability form ISO Form CG 0001 current edition is used Coverage A shall include premises operations products and completed operations independent contractors contractual liability covering this contract and broad form property damage coverage Coverage B shall include personal injury Coverage C medical payments is not required If the Comprehensive General Liability form ISO Form GL 0002 Current Edition and ISO Form GL 0404 is used it shall include at least Bodily injury and Property Damage Liability for premises operations products and completed operations independent contractors and property damage resulting from explosion collapse or underground XCU exposures Broad form contractual liability preferably by endorsement covering this contract personal injury liability and broad form property damage liability X Automobile Liability Insurance Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits CSL of not less than 50000000 either in a single policy or in a combination of basic and umbrella or excess policies The policy will include bodily injury and property damage liability arising out of the operation maintenance and use of all automobiles and mobile equipment used in conjunction with this contract Satisfaction ofthe above requirement shall be in the form of a policy endorsement for any auto or all owned hired and nonowned autos City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT B X Workers Compensation Insurance Contractor shall purchase and maintain Workers Compensation insurance which in addition to meeting the minimum statutory requirements for issuance of such insurance has Employers Liability limits of at least 100000 for each accident 100000 per each employee and a 500000 policy limit for occupational disease The City need not be named as an Additional Insured but the insurer shall agree to waive all rights of subrogation against the City its officials agents employees and volunteers for any work performed for the City by the Named Insured For building or construction projects the Contractor shall comply with the provisions of Attachment 1 in accordance with 406096 of the Texas Labor Code and rule 28TAC 110110 of the Texas Workers Compensation Commission TWCC Owners and Contractors Protective Liability Insurance The Contractor shall obtain pay for and maintain at all times during the prosecution of the work under this contract an Owners and Contractors Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractors operations under this contract Coverage shall be on an occurrence basis and the policy shall be issued by the same insurance company that carries the Contractors liability insurance Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building Limits ofnot less than each occurrence are required Professional Liability Insurance Professional liability insurance with limits not less than per claim with respect to negligent acts errors or omissions in connection with professional services is required under this Agreement Builders Risk Insurance Builders Risk Insurance on an AllRisk form for 100 of the completed value shall be provided Such policy shall include as Named Insured the City of Denton and all subcontractors as their interests may appear City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT B Commercial Crime Provides coverage for the theft or disappearance of cash or checks robbery insideoutside the premises burglary of the premises and employee fidelity The employee fidelity portion of this coverage should be written on a blanket basis to cover all employees including new hires This type insurance should be required if the contractor has access to City funds Limits of not less than each occurrence are required Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements If such additional insurance is required for a specific contract that requirement will be described in the Specific Conditions ofthe contract specifications City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 0322 11 FINAL EXHIBIT B ATTACHMENT 1 Workers Compensation Coverage for Building or Construction Projects for Governmental Entities A Definitions Certificate of coverage certificateA copy of a certificate of insurance a certificate of authority to selfinsure issued by the commission or a coverage agreement TWCC81 TWCC82 TWCC83 or TWCC84 showing statutory workers compensation insurance coverage for the persons or entitys employees providing services on a project for the duration of the project Duration of the project includes the time from the beginning of the work on the project until the contractorspersons work on the project has been completed and accepted by the governmental entity Persons providing services on the project subcontractor in 406096 includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees This includes without limitation independent contractors subcontractors leasing companies motor carriers owneroperators employees of any such entity or employees of any entity which ftimishes persons to provide services on the project Services include without limitation providing hauling or delivering equipment or materials or providing labor transportation or other service related to a project Services does not include activities unrelated to the project such as foodbeverage vendors office supply deliveries and delivery of portable toilets B The contractor shall provide coverage based on proper reporting of classification codes and payroll amounts and filing of any overage agreements which meets the statutory requirements of Texas Labor Code Section 40101144 for all employees of the Contractor providing services on the project for the duration of the project C The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract D If the coverage period shown on the contractors current certificate of coverage ends during the duration ofthe project the contractor must prior to the end of the coverage period file a new certificate of coverage with the governmental entity showing that coverage has been extended E The contractor shall obtain from each person providing services on a project and provide to the governmental entity 1 a certificate of coverage prior to that person beginning work on the project so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project and City of Denton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT B 2 no later than seven days after receipt by the contractor a new certificate of coverage showing extension of coverage ifthe coverage period shown on the current certificate of coverage ends during the duration ofthe project F The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter G The contractor shall notify the governmental entity in writing by certified mail or personal delivery within 10 days after the contractor knew or should have known of any change that materially affects the provision of coverage of any person providing services on the project H The contractor shall post on each project site a notice in the text form and manner prescribed by the Texas Workers Compensation Commission informing all persons providing services on the project that they are required to be covered and stating how a person may verify coverage and report lack of coverage 1 The contractor shall contractually require each person with whom it contracts to provide services on a project to 1 provide coverage based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements which meets the statutory requirements of Texas Labor Code Section 40101144 for all of its employees providing services on the project for the duration of the project 2 provide to the contractor prior to that person beginning work on the project a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project for the duration of the project 3 provide the contractor prior to the end of the coverage period a new certificate of coverage showing extension of coverage if the coverage period shown on the current certificate of coverage ends during the duration of the project 4 obtain from each other person with whom it contracts and provide to the contractor a certificate of coverage prior to the other person beginning work on the project and b a new certificate of coverage showing extension of coverage prior to the end of the coverage period ifthe coverage period shown on the current certificate of coverage ends during the duration ofthe project 5 retain all required certificates of coverage on file for the duration of the project and for one year thereafter 6 notify the governmental entity in writing by certified mail or personal delivery within 10 days after the person knew or should have known of any change that materially affects the provision ofcoverage of any person providing services on the project and City ofDenton TXAttachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT B 7 contractually require each person with whom it contracts to perform as required by paragraphs 1 7 with the certificates of coverage to be provided to the person for whom they are providing services J By signing this contract or providing or causing to be provided a certificate of coverage the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers compensation coverage for the duration of the project that the coverage will be based on proper reporting of classification codes and payroll amounts and that all coverage agreements will be filed with the appropriate insurance carrier or in the case of a selfinsured with the commissions Division of SelfInsurance Regulation Providing false or misleading information may subject the contractor to administrative penalties criminal penalties civil penalties or other civil actions K The contractors failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void ifthe contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity City ofDenton TX Attachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by HB 1491 80th Leg Regular Session OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person doing business with the governmental entity By law this questionnaire must be filed with the records administrator of the local government not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed See Section 176006 Local Government Code A person commits an offense if the person violates Section 176006 Local Government Code An offense under this section is a Class C misdemeanor 1 Name of person who has a business relationship with local governmental entity 2 E Check this box if you are filing an update to a previously filed questionnaire The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate 3 Name of local government officerwith whom filer has an employment or business relationship Name of Officer This section item 3 including subparts A B C D must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 1760011a Local Government Code Attach additional pages to this Form CIQ as necessary A Is the local government officer named in this section receiving or likely to receive taxable income other than investment income from the filer of the questionnaire 0 Yes F1 No B Is the filer of the questionnaire receiving or likely to receive taxable income other than investment income from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity 0 Yes 0 No C Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director or holds an ownership of 10 percent or more 0 Yes No D Describe each affiliation or business relationship 4 Signature of person doing business with the governmental entity Da e Adopted 06292007 City ofDenton TXAttachment A MERCHANT SERVICES CONTRACT with INS CIQ Elavon 032211 FINAL Elao1 City of Denton TX PAYMENT DEVICE PROCESSING AGREEiNIENT vl 10110 did 032911 FINAL PAYMENT DEVICE PROCESSING AGREEMENT This Payment Device Processing Agreement Agreement is entered into as of the Effective Date by and among the entity identified below as the Merchant together with any affiliated entities listed on Schedule B to the Agreement referred to collectively as the Merchant Elavon Inc Elavon and Member as designated on the Merchant Application and includes the following Terms of Service the TOS and all Schedules and other attachments to the Agreement and all Schedules and other attachments to the Agreement as may be added from time to time each of which is incorporated in full by this reference The Agreement governs the Merchants receipt and use ofthe Processing Services PAYMENT DEVICE PROCESSING SERVICES ELECTED BY MERCHANT Merchant elects the following Payment Device Processing Services as described in the Agreement including all applicable Schedules and subject to the additional terms and conditions of the applicable provisions of the Merchant Operating Guide the MOG x TOS General Provisions and the MOG Schedule A Schedule of Fees x Schedule B Affiliated Entities 0 Schedule C Merchant Application Large Relationship Substitute Form W9 required for US entities Substitute Form W813EN required for nonUS entities Payment Device Processing Services Available to Merchants Generally check desired Processing Services Credit Card Services Debit Card signaturebased Services Debit Card PINbased Services Bill Payment Pinless Debit Services DCC Services Wireless Services Contactless Services Schedule D Electronic Gift Card Services Schedule E Electronic Check Services Schedule J Processing Services for Convenience Fees Schedule K Enterprise Billing Solutions Services Schedule N Internet PINBased Debit Card Services Payment Device Processing Services Available to Merchants Operating in Certain Merchant Categories check desired Processing Services EBT Services Hospitality Services No Signature Required Program Services Schedule F Petroleum Services Schedule I Processing Services for Government Entities and Institutions Payment Device Processing Services Available to Merchants Operating in Certain Jurisdictions check desired Processing Services Schedule G Processing Services in Canada Schedule H Processing Services in Puerto Rico IN WITNESS WHEREOF the parties hereto have executed the Agreement THE CITY OF DENTON TEXAS on behalf of itself and each of the affiliated entities identified on Schedule B the H T By G Name Title 1 1oflOAQ ELAVON I By deltNamenipyQ0 y Title d ewleey Date 16 N Effe ive Date MEMBER By NameJJrTe1e1Title1Oi2free AgeslDaIL4 Elavn City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT vl 10110 M032911 FINAL TERMS OF SERVICE Section A General Provisions Applicable to All Services 1 DEFINITIONS RULES OF CONSTRUCTION Capitalized terms used in the Agreement and in any applicable Schedule shall have the meanings ascribed to such terms in the Glossary set forth in Section B of this TOS or in such Schedules All Schedules are expressly incorporated in their entirety and made a part of the Agreement Captions in the Agreement and in the attached Schedules are for convenience only and do not constitute a limitation of the terms in the Agreement Singular terms shall include the plural and vice versa unless the context otherwise requires The word day shall mean calendar day unless specifically stated otherwise In the event of a conflict between the terms of Section A General Provisions and any applicable Schedule the teens of the applicable Schedule shall prevail 2 ACCEPTANCE OF PAYMENT DEVICES Merchant shall determine in accordance with the Payment Network Regulations and the Agreement which types of Payment Devices and Processing Services it will agree to accept as a form of payment from its Customers by selecting the applicable Processing Services on page 1 of the Agreement andor on the appropriate Schedule The terms and conditions for the acceptance of the applicable Payment Devices and Merchants use of the Processing Services are set forth in the Agreement and in the Merchant Operating Guide the MOG incorporated herein by this reference and located at our website httpswwwmerchantconnectcormCWRWebpdfMOG Engpdf Each Schedule to the Agreement shall be governed by the TOS and the applicable provisions of the MOG as well as by the terms set forth in the Schedule 3 TRANSACTIONS a Merchant Compliance Merchant must comply with all the requirements under the Agreement Merchant must also comply with the procedures set forth in the MOG and any other guides manuals or rules provided in writing by Elavon from time to time b Settlement of Transactions Subject to the other provisions of the Agreement and subject to Merchants compliance with the terms of the Agreement and the Payment Network Regulations Elavon and Member will process Transactions daily and if Merchant maintains its DDA with Member provisional credit for Transactions less recoupment of any Chargebacks returns adjustments fees subject to Section A5a fines penalties assessments from the Payment Networks and other amounts due to Elavon or Member under the Agreement may be available as soon as the next banking day after the banking day on which Elavon and Member process the Transactions Regardless of where Merchant maintains its DDA Merchant acknowledges and agrees that Elavon and Member may use either direct ACH debit authority pursuant to which Chargebacks returns adjustments fees subject to Section A5a fines penalties assessments from the Payment Networks and other amounts due to Elavon or Member under the Agreement are debited from the DDA or net pursuant to which Chargebacks returns adjustments fees subject to Section A5a fines penalties assessments from the Payment Networks and other amounts due to Elavon or Member under the Agreement are netted from Transaction proceeds methods to recover any amounts owed by Merchant to Elavon or Member under the Agreement To the extent required Merchant authorizes and appoints Elavon or Member to act as Merchants agent to collect Transaction amounts from the Customer the Issuer or the Customers financial institution i Deposits Merchant agrees that the Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code I 1 USC Section 365 as amended from time to time Merchant acknowledges that its obligation to Elavon and Member for all amounts owed under the Agreement arises out of the same transaction as Elavons and Members obligation to deposit funds to the DDA and such amounts are owed in the ordinary course of business ii Provisional Credit Merchant acknowledges that all credits for funds provided to it are provisional and subject to reversal in the event that Elavon and Member do not receive payment of corresponding settlement amounts from the Payment Networks Merchant further acknowledges that all credits are subject to adjustments for inaccuracies and errors including rejects and Chargebacks in accordance with the Agreement and the Payment Network Regulations whether or not a Transaction is charged back by the Issuer or Customer Merchant authorizes Elavon or Member to initiate reversal or adjustment debit or credit entries and to initiate or suspend such entries in accordance with the Agreement as may be necessary to grant or reverse provisional credit for any Transaction Cardholder credits issued by Merchant to PIN Debit Cards will not be subject to this delay iii Chargebacks Merchant agrees to accept for Chargeback and will be liable to Elavon and Elao City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 did 032911 FINAL Member in the amount of any Transaction disputed by the Cardholder or Issuer for any reason under the Payment Network Regulations Merchant authorizes Elavon and Member to offset from funds due Merchant or to debit the DDA or the Reserve Account for the amount of all Chargebacks Merchant will fully cooperate with Elavon and Member in complying with the Payment Network Regulations regarding all Chargebacks iv Original Transaction Receipts Under no circumstances will Elavon or Member be responsible for processing returns refunds or adjustments related to Transactions not originally processed by Elavon and Member c DDA and ACH Authorization Merchant will establish and maintain with Member or with another ACH participating financial institution one or more DDAs to facilitate payment for Transactions Merchant will maintain sufficient funds in the DDA to accommodate all Transactions contemplated by the Agreement and all Chargebacks returns adjustments fees fines penalties assessments from the Payment Networks and other payments due under the Agreement Merchant irrevocably authorizes Elavon Member and their respective authorized vendors and agents who provide services under the Agreement at Merchants request to initiate ACH debit and credit entries to the DDA or the Reserve Account for any products or services requested by Merchant in order to make payments to or collect payments from Merchant due under the Agreement The foregoing authorizations will remain in effect after termination of the Agreement until all ofMerchants obligations to Elavon and Member have been paid in full Elavon and Member have the right to delay within their reasonable discretion crediting the DDA with funds related to Transactions in order to investigate any Transactions related to suspicious or fraudulent activity or funds for Transactions for which Elavon or Member have not received funding from the applicable Payment Networks Elavon and Member will endeavor to investigate or process any delayed Transactions expeditiously and will endeavor to notify Merchant if any Transactions are delayed for more than fortyeight 48 hours Elavon has the right to rely upon written instructions submitted by Merchant requesting changes to the DDA In the event Merchant changes the DDA the ACH debit and credit authorization established hereunder will apply to the new account and Merchant shall provide Elavon and Member such information regarding the new DDA as they deem necessary to effect payments to and from the DDA as provided under the Agreement It may take Elavon up to ten 10 business days after Elavons receipt of a written notice from Merchant to reflect in its system any change to Merchants DDA d Depository Institution Merchant authorizes its depository institution to grant Elavon andor Member access to any and all information or records regarding the DDA reasonably requested by Elavon andor Member to debit or credit the DDA and to otherwise exercise their rights under the Agreement with respect to the DDA e Asserted Errors It is the responsibility of Merchant to reconcile the statements regarding Transaction activity received from Elavon any Payment Network and any third party vendors with the statements Merchant receives for Merchants DDA Merchant must promptly examine all statements relating to the DDA and promptly notify Elavon and Member in writing of any errors in the statement Merchant received from Elavon Merchants written notice must include i Merchant name and account number ii the dollar amount of the asserted error iii a description of the asserted error and iv an explanation of why Merchant believes an error exists and the cause of it if known That written notice must be received by Elavon within ninety 90 days of the date of the Elavon statement containing the asserted error If Merchant fails to provide such notice to Elavon within said ninety 90 days Elavon and Member shall not be liable to Merchant for any errors Merchant asserts at a later date Merchant may not make any claim against Elavon or Member for any loss or expense relating to any asserted error for ninety 90 days immediately following Elavons receipt of Merchants written notice During that ninety 90 day period Elavon i will be entitled to investigate the asserted error and Merchant shall not incur any cost or expense in connection with the asserted error without notifying Elavon and ii notify Merchant of its proposed resolution of the asserted error 4 SECURITY INTERESTS RESERVE ACCOUNT RECOUPMENT AND SETOFF a Security Interests Deleted pursuant to Schedule I b Reserve Account i Establishment With notification to Merchant Elavon may establish a Reserve Account in the Reserve Amount upon the occurrence of a Reserve Event for the purpose of providing security and a source of funds to pay Elavon and Member for any and all amounts that may be owed by Merchant hereunder Elavon and Member shall have sole control of the Reserve Account ii Reserve Amount The Reserve Amount is equal to the aggregate dollar value of average credits to processing volume during the same period average Chargebacks to processing volume during the same period multiplied by Elao City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT vl 10110 dtd 03291 I FINAL four multiplied by average monthly processing volume plus one months average fees plus days delayed delivery multiplied by the average days processing volume For purposes of this calculation the number of days delayed delivery means the number of days between the date on which the Cardholders Payment Device is charged and the date the product is shipped to the Cardholder if the goods are being shipped or the date the Cardholder receives the product or service Further for purposes of this calculation Elavon will determine in consultation with Merchant the applicable period considering factors such as Merchants Transaction volume and seasonality A Reserve Event The following will constitute Reserve Events a fraudulent activity in any monthly period that equals or exceeds one percent 1 of Merchants average monthly volume over the preceding twelve 12 month period b Chargebacks in any monthly period that equal or exceed one percent l of the total dollar value of incoming items to Elavon c Elavons reasonable belief that a Merchant not approved by Elavon to engage in delayed delivery transactions has accepted deposits but has not delivered the goods or services d the commencement of a Bankruptcy Proceeding by or against Merchant e fines or assessments imposed or reasonably expected to be imposed by the Payment Networks f the occurrence of a material adverse change in Merchants financial condition g assignment of the Agreement by Merchant in violation of Section 15e and h revocation termination or nonrenewal of any guaranty indemnity agreement letter of credit or any other Alternate Security provided in connection with the Agreement if applicable iii Funding Elavon and Member may fund the Reserve Account in each case up to the Reserve Amount by any one or more of the following means A Elavon and Member may require Merchant to deposit funds into the Reserve Account andor B Elavon and Member may deposit into the Reserve Account funds they would otherwise be obligated to pay Merchant iv Use of Funds in Reserve Account Elavon or Member may without notice to Merchant apply funds in the Reserve Account against any outstanding amounts Merchant owes under the Agreement except for Havens fees Also Elavon or Member may debit the Reserve Account to exercise their rights under the Agreement including without limitation their rights of setoff and recottpment to collect any amounts due to Elavon or Member Further Merchant agrees that Elavon or Member may be required to send funds in a Reserve Account to a third party in response to a tax levy or other court order v Termination of Reserve Account Funds held in the Reserve Account shall remain in the Reserve Account and shall be used only to pay amounts due to Elavon and Member except as otherwise provided in the Agreement and except for Elavons fees until the Merchant has paid in full all amounts owing or that may be owed under the Agreement including all Chargebacks returns adjustments fees fines penalties assessments from the Payment Networks and any other payments due under the Agreement In no event shall Merchant be entitled to a return of any funds remaining in the Reserve Account before one hundred eighty 180 days following the effective date of tennination of the Agreement Notwithstanding the foregoing if Elavon and Member determine that the Reserve Event that gave rise to the establishment of the Reserve Account has been sufficiently cured Elavon and Member may in their sole discretion terminate the Reserve Account andor release funds from the Reserve Account prior to the termination of the Agreement vi Alternate Security In lieu of or in addition to establishing and funding a Reserve Account Elavon may in its sole and absolute discretion accept an alternative form of security Alternate Security for the purpose of providing a source of funds to pay Elavon and Member for any and all amounts owed by Merchant Elavon retains the right at any time to reject Alternate Security previously accepted by Elavon andor to require funding of a Reserve Account so that the amount of funds held in a Reserve Account taken together with amounts represented by any Alternate Security accepted by Elavon equal the Reserve Amount c Recoupment and Setoff Elavon and Member have the right of recoupment and setoff This means that they may offset any outstanding or uncollected amounts owed to them hereunder except for Elavons fees which are provided for in Section 5a from i any amounts they would otherwise be obligated to deposit into the DDA and ii any other amounts they may owe Merchant under the Agreement Merchant acknowledges that in the event of a Bankruptcy Proceeding in order for Merchant to provide adequate protection under Eld City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 M 03291 l FINAL Bankruptcy Code Section 362 to Elavon andor Member hereunder Elavon and Member may require the creation of a Reserve Account and either of them shall have the right to offset against the Reserve Account for any and all obligations Merchant may owe to Elavon and Member without regard to whether the obligations relate to Transactions initiated or processed before or after the initiation of the Bankruptcy Proceeding d Remedies Cumulative The rights conferred upon Elavon and Member in this section are not intended to be exclusive of each other or of any other rights and remedies of Elavon and Member under the Agreement at law or in equity Rather each and every right of Elavon and Member under the Agreement at law or in equity is cumulative and concurrent and in addition to every other right 5 PROCESSING SERVICES FEES OTHER AMOUNTS OWED TAXES Elavon and Member will provide Merchant with Processing Services in accordance with the Agreement Merchant will compensate Elavon and Member for Processing Services as indicated on Schedule A Schedule of Fees and in any other Schedules executed by Elavon Member and Merchant a Fees Merchant will pay Elavon and Member fees in the ordinary course of business for all Processing Services supplies and equipment in accordance with Schedule A any amendment to Schedule A and any additional application or setup forms or schedules provided by Elavon and Member in writing to Merchant Such fees will be calculated once each month for the previous months activity Elavon will send Merchant an invoice reflecting the fees due which Merchant must pay within thirty 30 days of the invoice date In addition to all other available remedies Elavon and Member may offset any outstanding or uncollected amounts that are more than ninety 90 days past due from i any amounts they would otherwise be obligated to deposit into the DDA and ii any other amounts Elavon or Member may owe Merchant under this Agreement b Research In addition Merchant will pay Elavon at its standard rates for research as set forth on Schedule A including but not limited to research required to respond to any third party or government subpoena levy garnishment or required reporting on Merchants account c Change of Fees The fees set forth in the Agreement and any additional application or set up form will not be amended by Elavon for the Term of the Agreement except as provided in Schedule A or to pass through to Merchant increases in interchange assessments or fees imposed by a third party Notwithstanding the previous sentence the Card Processing Fees set forth in Section III of Schedule A may be adjusted during the Term in Elavons or Members discretion without further consent or agreement from Merchant to pass through any new fees imposed upon Elavon or Member by any third parties including any Payment Network in connection with the Processing Services d Other Amounts Owed Merchant will promptly pay Elavon or Member any amount incurred by Elavon or Member attributable to the Agreement including without limitation Chargebacks returns adjustments fees fines penalties assessments including all fines penalties or assessments by the Payment Networks as a result of Merchants Transaction processing and any other payments due under the Agreement Elavon or Member may offset these amounts from funds otherwise owed by Elavon or Member to Merchant or may debit these amounts from Merchants DDA or Reserve Account by ACH In the event such offset or ACH debit does not fully reimburse Elavon or Member for the amount owed Merchant will promptly pay Elavon or Member such amount upon demand Elavon will charge interest on all uncollected amounts owed to Elavon or Member that are more than thirty 30 days past due at a rate equal to the lesser of i the product of the uncollected amounts and the then current Federal Funds Rate plus 10 calculated and computed on the basis of a 365day year or ii the maximum daily rate of interest permitted under applicable law e Taxes Merchant is also obligated to pay all taxes and other charges imposed by any governmental authority on the goods and services provided under the Agreement excluding the income taxes attributable to Elavon or Member If Merchant is a taxexempt entity Merchant will provide Elavon and Member with an appropriate certificate of tax exemption 6 ACCURACY OF INFORMATION INDEMNIFICATION LIMITATION OF LIABILITY a Accuracy of Information See Schedule I b Responsibilities See Schedule I c Limitation of Liability Merchant acknowledges that fees for the Processing Services provided to Merchant by Elavon and Member are very small in relation to the funds advanced to Merchant for Transactions and consequently Elavons and Members willingness to provide these services is based on the liability limitations contained in the Agreement Therefore in addition to greater limitations on Elavons or Members liability that may be provided elsewhere any liability of Elavon and Member under the Agreement whether to Merchant or any other party whatever the basis of the liability will not exceed in the aggregate an amount equal to the fees paid by Merchant to Elavon and Member during the last twelve 12 months exclusive of fees and variable costs E1don City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 03291 1 FINAL incurred by Elavon and Member to process Transactions such as Interchange costs assessments and fees imposed by a third party In no event will the parties or their agents officers directors or employees be liable to any other party to the Agreement for indirect exemplary punitive special or consequential damages d Performance No party hereto shall be liable for any failure or delay in its performance of the Agreement if such failure or delay arises for reasons beyond the control of such party and without the fault or negligence of such party 7 REPRESENTATIONS AND WARRANTIES COVENANTS a Merchant Representations and Warranties Merchant represents and warrants to Elavon and Member the following as ofthe Effective Date i Information Merchant is validly existing and duly organized under the laws of the jurisdiction in which it was formed with all necessary authority qualifications licenses and registrations necessary to conduct its business in all jurisdictions where Merchant conducts business in compliance with all Laws and Payment Network Regulations All written information provided in the Merchant Application in the bid process if applicable the assumptions in Schedule A or any other document submitted to Elavon or Member is true and complete and properly reflects the business financial condition and ownership of Merchant in all material respects ii Authority and Power Merchant and the person signing the Agreement on Merchants behalf have the power to execute and perform the Agreement The person executing the Agreement is duly authorized to bind Merchant and each affiliated entity identified in Schedule B to all provisions of the Agreement as if each affiliated entity had executed the Agreement and such person is authorized to execute any document and to take any action on behalf of Merchant which may be required by Elavon to carry out the Agreement Further the signing andor performing in accordance with the Agreement will not violate any Law or conflict with any other agreement to which Merchant is subject iii MasterCard MATCHrm System and Consortium Merchant Negative File Merchant has never been placed on the MasterCard MATCHTM system formerly known as the Combined Terminated Merchant File or been named to the Consortium Merchant Negative File maintained by Discover or if it has it has disclosed this fact to Elavon in writing iv No Litigation There is no action suit or proceeding pending or to Merchants knowledge threatened that would reasonably be expected to materially impair Merchants ability to carry on Merchants business substantially as now conducted or which would materially and adversely affect Merchants financial condition or operations b Merchant Covenants Merchant covenants the following to Elavon and Member during the Term i Compliance with Laws and Payment Network Regulations Merchant will comply with all Laws and Payment Network Regulations ii Business Use Merchant is obtaining and using the Processing Services from Elavon and Member for business purposes only and to facilitate lawful business Transactions between Merchant and its Customers Merchant will not submit Transactions for processing to Elavon or Member for any businesses materially different products or methods of selling other than those set forth in the Merchant Application without the prior written consent of Elavon Merchant also acknowledges that the DDA into which debits and credits are made is being used for lawful business purposes only iii Transactions To the best of Merchants knowledge all Transactions are bona fide No Transaction involves the use of a Payment Device for any purpose other than the payment to Merchant or a return or adjustment related to such payment No Transaction involves a Cardholder obtaining cash from Merchant unless allowed by the Payment Network Regulations and agreed to in writing by Elavon All Transactions will be accepted at entities properly identified to Elavon and Member on Schedule B attached hereto iv Responsibility for Actions Merchant is responsible for any violations of this Agreement that result from the actions of or failure to act by Merchants officers directors employees agents Value Added Servicers business invitees and those ofany other Person who with or without Merchants consent or cooperation obtains access to information related to Transactions from Merchant or access to systems under Merchants control but excluding all actions or failures to act to the extent attributable to Elavons or Members breach of the Agreement negligence or willful misconduct c Elavon and Member Representations and Warranties Elavon and Member each on their own behalf and not on behalf of the other represent and warrant to Merchant the following as of the Effective Date of the Agreement PElavon City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 032911 FINAL i Information Elavon is a corporation validly existing and organized under the laws of the State of Georgia Member is a banking association validly existing and organized in the United States ii Corporate Power Elavon Member and the persons signing the Agreement on behalf of each of them have the power to execute and perform the Agreement The persons executing the Agreement are duly authorized to bind Elavon and Member as applicable to all provisions of the Agreement and such persons are authorized to execute any document and to take any action on behalf of Elavon and Member respectively which may be required to carry out the Agreement Further the signing andor performing in accordance with the Agreement will not violate any Law or conflict with any other agreement to which they are respectively subject iii No Litigation There is no action Suit Or proceeding pending or to Elavons or Members knowledge threatened which if decided adversely would impair Elavons or Members ability to carry on their business substantially as now conducted or which would adversely affect Elavons or Members financial condition or operations d Elavon and Member Covenants Elavon and Member each on their own behalf and not on behalf of the other covenants to Merchant the following during the Term i Compliance with Laws and Payment Network Regulations Elavon and Member will comply with all Laws and Payment Network Regulations including the requirements of the Payment Card Industry PCI Data Security Standard as applicable to them and their respective systems for the Processing Services provided under the Agreement The Merchant may review Elavons current PCI compliance status on the Payment Network websites as available ii Responsibility for Actions Elavon and Member are responsible for any violations of this Agreement that result from the actions of or failure to act by their officers directors employees and agents but excluding actions or failures to act to the extent attributable to Merchants breach of the Agreement negligence or willful misconduct 8 AUDIT AND INFORMATION a Audit i Elavon or Member Audit In the event that Elavon or Member reasonably suspects that they are subject to a financial or reputational risk due to Merchants actions or omissions Merchant authorizes Elavon and Member to perform an audit or inspection of Merchants operations to confirm compliance with the Agreement upon reasonable advance notice and at Elavons or Members expense Merchant agrees to cooperate in good faith with any such audit conducted by Elavon or Member ii Data Compromise Security and Payment Network Audit In addition to Merchants obligations under Section 13ei in the event of a known or suspected data compromise security incident the occurrence of suspicious activity or otherwise if required by the Payment Networks Merchant will obtain at the request of Elavon Member or any Payment Network and submit a copy of a forensic audit from a qualified incident response assessor of the information security of Merchants business at Merchants expense Merchant acknowledges and agrees that the Payment Networks have the right to audit Merchants operations to confirm compliance with the Payment Network Regulations b Information i Authority Merchant authorizes Elavon and Member to make upon receipt of the Merchant Application and from time to time any business credit or other inquiries they consider reasonably necessary to review the Merchant Application or continue to provide Processing Services under the Agreement Merchant also authorizes any Person or credit reporting agency to compile information to answer those business credit inquiries and to furnish that information to Elavon ii Financial Information See Schedule I iii Merchant Information Merchant agrees that any information about Merchant or any of its principals affiliates or agents that is provided to Elavon or Member on the Merchant Application or otherwise obtained by Elavon or Member in connection with the Agreement may be A used by Elavon and Member and their respective affiliates agents and referral partners i in order to provide the Processing Services and related functions to Merchant and to respond to any further application for services or ii for administrative purposes B disclosed and shared for reporting purposes to credit rating agencies in accordance with the Payment Network Regulations to Issuers and to the financial institution where the DDA is maintained C used or disclosed in the course of any actual or potential sale reorganization or other change to Elavons or Members business D collected used and disclosed as required or permitted by Law eg for tax reporting or in response to a subpoena and E retained for such periods of time as required by Elaoz City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v1 10110 dtd 03291 1 FINAL Haven and Member to perform their obligations and exercise their rights under the Agreement c Customer Identification To help the government fight the funding ofterrorism and money laundering activities federal law requires all financial institutions to obtain verify and record information that identifies each Person who opens an account Accordingly Merchant must provide certain information and identifying documents to allow Elavon and Member to identify Merchant 9 FRAUD MONITORING Merchant is solely responsible for monitoring its Transactions Elavon and Member are under no duty to monitor Merchants Transactions for fraudulent or other suspicious activity 10 BUSINESS CONTINUITY a Merchant Merchant is solely responsible for all Transactions and Transaction Receipts until such time as the Transaction Receipts have been received and validated by Elavon Merchant will maintain sufficient backup inforniation and data eg Transaction Receipts or detailed reporting with respect to Transactions and will provide such information and data to Elavon or Member upon request in order to reconstruct any information or data lost due to any malfunction of Merchants or Elavons or Members systems Elavon is under no duty to recreate lost Transactions or Transaction Receipts unless such loss results from Elavons breach of the Agreement b Elavon and Member Haven is required pursuant to federal banking regulations to establish maintain and test an effective and comprehensive business continuity plan BCP Elavon and Member maintain BCPs that are commercially reasonable within the industry for the Processing Services Elavon and Member will continue to adhere to their respective BCPs and will modify those plans from time to time to meet the objectives and requirements oftheir respective businesses 11 THIRD PARTIES a Products or Services See Schedule I b Third Party Contractors Merchant acknowledges and understands that Elavon or Member may use the services of third party service providers in connection with the performance of their obligations under the Agreement including any Schedule to the Agreement Except as otherwise provided in the Agreement Elavon and Member shall be responsible for the performance of their obligations hereunder notwithstanding any use of or delegation of any responsibility to a third party service provider 12 TERM AND TERMINATION a Term Unless terminated as set forth below the Agreement including all Schedules hereto executed as of or following the Effective Date will remain in effect for the Term as defined on Schedule A Schedule of Fees following the Effective Date set out on page 1 of the Agreement If Merchant processes Transactions beyond the Term then the ternis of the Agreement shall govern such Transaction processing b Termination i By Merchant A The Agreement may be terminated by Merchant effective at the end of the Tern by providing written notice of an intent not to renew to Elavon at least ninety 90 days prior to the expiration of the then current term B The Agreement may be terminated by Merchant if any of the following conditions remain uncured thirty 30 days after Merchant provides Elavon and Member written notice of the existence of the condition 1 Elavon has failed to pay Merchant an undisputed amount owed to Merchant under the Agreement or 2 Elavon or Member has failed to perform a material obligation under the Agreement ii By Elavon or Member A The Agreement may be terminated by Elavon or Member effective at the end of the Term by providing written notice of an intent not to renew to Merchant at least ninety 90 days prior to the expiration of the then current term B The Agreement may be terminated by Elavon or Member if after providing sixty 60 days written notice any of the following conditions remain 1 The occurrence of Excessive Activity 2 The acceptance of Card Not Present or Convenience Fee Transactions without proper disclosure to Elavon and Member in the Agreement or an amendment to the Agreement 3 The failure to pay Elavon or Member any amount Merchant owes Elavon or Member 4 The failure by Merchant to perform a material obligation ofthe Agreement C The Agreement may be terminated by Elavon or Member immediately upon the occurrence of one or more of the following 1 The occurrence of a material adverse change in Merchants financial condition 2 The garnishment or attachment of Merchants deposit accounts with Member Alternate Security the DDA the Reserve Account or any of Elaoz City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 032911 FINAL Merchants property in the possession ofElavon or Member 3 The commencement of a Bankruptcy Proceeding by or against Merchant 4 Any representation warranty or covenant by Merchant is false or misleading in any material respect as of the date made or becomes false or misleading in any material respect at any time during the term of the Agreement 5 Any Payment Network requires Elavon or Member to terminate the Agreement or cease processing transactions for Merchant 6 Any change not approved by Elavon that constitutes a material change in the types of goods and services Merchant sells or in the methods by which Merchant sells them or any change that results in Merchants violation of Elavons or Members underwriting policy 7 Assignment of the Agreement or a change in control of Merchant without Elavons written consent 8 Revocation termination or non renewal of any guaranty indemnity agreement letter of credit or other Alternate Security executed in connection with the Agreement if applicable The parties rights of termination under the Agreement are cumulative A party may exercise its termination rights with respect to an individual Schedule to the Agreement or the participation of any affiliate without terminating other Processing Services or Schedules provided that any termination of the Agreement in whole shall automatically terminate all related Processing Services and Schedules A specific right of termination in this section shall not limit any other right of the party to terminate the Agreement or any Schedule expressed elsewhere c Notice of Termination i Notice of termination by Merchant Elavon or Member must be given in writing Termination shall be effective on the date specified by the written notice provided however Merchant agrees that closing Merchants account with Elavon may take up to thirty 30 days following Elavons receipt of written notice of termination In those limited instances where Merchants account is reinstated by Elavon following termination by either Merchant or Elavon in the Term all of Merchants obligations under the Agreement are likewise reinstated d Action upon Termination i Accounts All obligations of a party regarding Transactions processed prior to termination will survive termination Funds related to Transactions processed prior to termination may be placed in a Reserve Account until Merchant pays all amounts Merchant owes Elavon or Member or for which Merchant is liable under the Agreement Merchant must maintain enough funds in the DDA following termination to cover all Chargebacks returns adjustments fees fines penalties assessments from the Payment Networks and other amounts due under the Agreement for a reasonable time but in any event not less than 180 days from termination ii Equipment If Merchants equipment is leased Merchant is obligated to honor the terms and conditions of Merchants leasing contract If Merchants equipment is owned or supplied by Elavon Merchant must return all equipment to Elavon and pay Elavon any amounts Merchant owes for such equipment within thirty 30 days iii Early Termination Fee Deleted pursuant to Schedule I 13 COMPLIANCE WITH LAWS AND PAYMENT NETWORK REGULATIONS MATCHTM AND CONSORTIUM MERCHANT NEGATIVE FILE a Compliance with Laws and Payment Network Regulations Merchant Elavon and Member agree to comply with all applicable Payment Network Regulations including all requirements applicable to obtaining authorization for ACH debits from or charges to a consumer account as applicable and with any policies and procedures provided by Elavon or Member Merchant Elavon and Member further agree to comply with all Laws applicable to the selected Processing Services including without limitation Laws related to i Payment Devices ii electronic fund transfers iii confidential treatment of information and iv the Fair and Accurate Credit Transactions Act of 2003 FACTA including its requirements relating to the content of Transaction Receipts provided to Cardholders Merchant will execute and deliver to Elavon and Member all documents they may from time to time reasonably deem necessary to verify Merchants compliance with this provision b Privacy Laws In addition to Section A14b each party hereto must take all commercially reasonable steps to protect the confidentiality of Cardholder and Transaction information and shall establish and maintain physical technical and administrative safeguards to prevent unauthorized access by third parties to such Cardholder and Transaction information and in a manner that complies with applicable Laws including without Elaoz City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT v1 10L l0 dtd 032911 FINAL limitation the federal Health Insurance Portability and Accountability Act the federal GrammLeach Bliley Act FACTA or other applicable privacy laws c MATCHT51 and Consortium Merchant Negative File Merchant acknowledges that Member andor Elavon is required to report Merchants business name and the name of Merchants principals to the MATCHTM listing maintained by MasterCard and accessed by Visa or to the Consortium Merchant Negative File maintained by Discover if applicable pursuant to the requirements of the Payment Network Regulations Merchant specifically consents to Elavons and Members fulfillment of the obligations related to the listing of Merchant in such databases and Merchant waives all claims and liabilities Merchant may have as a result of such reporting d Security Program Compliance See Schedule I e Data Compromise i Notice and Investigation Merchant acknowledges and agrees that Cardholder data and bank account information obtained by Merchant in connection with any Transaction is the property of the financial institution that issued the Payment Device or holds the Customers account Merchant must notify Elavon and Member within twentyfour 24 hours and if notice is given orally it must be confirmed in writing within the same twenty four hour period if Merchant knows or suspects that Cardholder Data Customer information or Transaction information has been accessed or used without authorization from Merchant Merchants Agents or systems within Merchants or its agents control a Data Incident The notice must include a a detailed written statement about the Data Incident including the contributing circumstances b the form number and range of compromised account information c specific account numbers compromised and d details about the ensuing investigation and Merchants security personnel who may be contacted in connection with the Data Incident Merchant must fully cooperate with the Payment Networks Elavon and Member in the forensic investigation of the Data Incident Within seventytwo 72 hours of becoming aware of the Data Incident Merchant must engage the services of a data security firm acceptable to the Payment Networks andor to Elavon and Member to assess the vulnerability of the compromised data and related systems Merchant must provide weekly written status reports to Elavon and Member until the forensic audit is complete Merchant must promptly furnish updated lists of potential or known compromised account numbers and other documentation or infonmation that the Payment Networks andor Elavon and Member may request In addition Merchant must provide all audit reports to Elavon and Member and such audits must be completed to the satisfaction of the Payment Networks andor of Elavon and Member If Merchant fails to supply the forensic audits or other information required by the Payment Networks andor by Elavon and Member Merchant will allow Elavon or Member to perfonn or have performed such audits at Merchants expense ii Preservation of Records In the event of a Data Incident Merchant must take immediate steps to preserve all business records logs and electronic evidence relating to the Data Incident Merchant shall cooperate with Elavon and Member to rectify correct and resolve any issues that may result from the Data Incident including providing Elavon and Member with and obtaining any necessary waivers for all relevant information to verify Merchants ability to prevent future data incidents in a manner consistent with the Agreement iii Liability for Data Incident Without waiving any of Elavons and Members rights and remedies Merchant is liable for all fraudulent transactions related to any Data Incident and all costs Elavon or Member incur as a result of such Data Incident including any fees fines penalties andor assessments by the Payment Networks claims from third parties all costs related to the notification of Cardholders or Customers and cancellation reissuance of Payment Devices including underlying accounts forensic investigation and PCI DSS review for a report of compliance iv Elavon Data Compromise If Elavon suffers a data incident and Cardholder Customer or Transaction information has been accessed from Elavon its employees or agents or systems within Elavons control then Elavon will follow all applicable Payment Network Regulations with respect to such data incident including providing the required reporting and forensic audits to the Payment Networks 14 USE OF TRADEMARKS CONFIDENTIALITY PASSWORDS a Use of Trademarks Merchant may use and display the Payment Networks marks and shall display such marks in accordance with the standards for use established by the Payment Networks Merchants right to use all such marks will terminate upon termination of the Agreement or upon notice by a Payment Network to discontinue such use Merchants use of promotional materials provided by the Payment Networks will not indicate directly 10 Elan City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 031911 FINAL or indirectly that such Payment Networks endorse any goods or services other than their own and Merchant may not refer to any Payment Networks in stating eligibility for Merchants products or services b Confidentiality i Cardholder and Transaction Information Merchant Elavon and Member shall at all times protect the confidentiality of Cardholder and Transaction information in accordance with all applicable Laws and Payment Network Regulations Merchant Elavon and Member must maintain Cardholder and Transaction information for such time periods as may be required by Laws and the Payment Network Regulations and thereafter destroy in a manner that will render the data unreadable all such media that they no longer deem necessary or appropriate to maintain Further Merchant Elavon and Member must take all steps reasonably necessary to ensure that Cardholder and Transaction information is not disclosed to unauthorized parties or otherwise misused Merchant may not retain or store magnetic stripe or CVV2CVC2CID data after authorization for any purpose including record keeping or additional authorization processing ii Bankruptcy In the event of failure or other suspension of Merchants business operations including any Bankruptcy Proceeding Merchant must not sell transfer or disclose any materials that contain Cardholder or Transaction information to third parties Merchant must A Return this information to Elavon or B Provide acceptable proof of destruction of this information to Elavon iii Confidential Information Generally Each party acknowledges that during the Term of this Agreement a party may disclose certain Confidential Information to the other party Each party agrees to protect the other partys Confidential Information from unauthorized disclosure publication or dissemination with the same standard of care and discretion it employs with similar information of its own but in no event less than reasonable care and shall not use reproduce distribute disclose or otherwise disseminate the other partys Confidential Information except in connection with the performance of its obligations under this Agreement Each party recognizes that the disclosure or unauthorized use of Confidential Information will injure the Disclosing Party Each party further recognizes and agrees that the injury that the Disclosing Party will suffer for any actual or threatened breach by the Receiving Party of the covenants or agreements contained herein cannot be compensated by monetary damages alone and the Receiving Party therefore agrees that the Disclosing Party in addition to and without limiting any other remedies or rights which it may have under the Agreement or otherwise shall be entitled to equitable relief to the extent authorized including injunction and specific performance The Receiving Party further agrees to waive any requirement for the securing or posting of any bond in connection with such equitable remedy The obligations of nondisclosure provided hereunder shall continue during the term of the Agreement and i with respect to Confidential Information that does not constitute a trade secret for a period of three 3 years thereafter and ii with respect to Confidential Information that rises to the level of a trade secret under applicable law for such period of time thereafter as the information shall retain its status as a trade secret under applicable law and no less than three 3 years thereafter c Passwords See Schedule I d Proprietary Interest Merchant has no interest whatsoever including without limitation copyright interests franchise interests license interests patent rights property rights or other interest in any services software or hardware provided by Elavon unless specifically agreed to in a separate license or use agreement between Merchant and Elavon Nothing in the Agreement shall be construed as granting Merchant any patent rights or patent license in any patent which Elavon may obtain in respect to Elavons services software or equipment Merchant will make no attempt to duplicate or otherwise ascertain the components circuit diagrams logic diagrams flow charts source and object code schematics or operation of or otherwise attempt to reverse engineer any of Elavons services equipment or software e Actions upon Termination Upon the request of the Disclosing Party or upon the termination of the Agreement the Receiving Party shall promptly return all Confidential Information and all copies of such Confidential Information in the Receiving Partys possession or in the possession of its agents andor will deliver to the Disclosing Party destroy or irreversibly erase as the Disclosing Party shall request all originals and copies prepared by the Receiving Party or its agents or prepared for the Receiving Partys use containing or reflecting any Confidential Information of the Disclosing Party In the event a dispute arises between the parties in relation to the Confidential Information or a part thereof or the Agreement the Receiving Party may retain a copy of such Confidential Information or part thereof as in the Receiving Partys discretion Elavo City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT vl 10110 did 032911 FINAL reasonably exercised is necessary for its defense of the dispute and its retention and use of such Confidential Inforrnation shall continue to be subject to the terms of the Agreement f Disclosure of Confidential Information In the event that the Receiving Party andor its agents become legally required or compelled by deposition interrogatory request for documents subpoena civil investigative demand or by any similar process or court or administrative order to disclose Confidential Information then the Receiving Party shall provide the Disclosing Party with prompt prior written notice of such legal requirement so that the Disclosing Party may seek a protective order or other appropriate remedy andor waive compliance with the terms of this Section 14 In the event that such protective order or other remedy is not obtained and regardless of whether the Disclosing Party waives compliance with the terms of this Section 14 the Receiving Party agrees to disclose only that portion of the Confidential Information which the Receiving Party as advised by the written opinion of counsel is legally required to be disclosed and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential Information 15 MISCELLANEOUS PROVISIONS a Entire Agreement See Section XVIII of the Contract b Jurisdiction and Venue Governing Law Deleted pursuant to Schedule I c Exclusivity Deleted pursuant to Schedule 1 d Construction Any alteration or strikeover in the text of the Agreement or any Schedule thereto will have no binding effect and will not be deemed to amend the Agreement The headings used in the Agreement are inserted for convenience only and will not affect the interpretation of any provision The language used will be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction will be applied against any party e Assignability The Agreement may not be assigned by Merchant directly or by operation of law or by change in control of Merchant without the prior written consent of Elavon If Merchant nevertheless assigns the Agreement without Elavons consent the Agreement will be binding on the assignee as well as Merchant Elavon will not transfer or assign the Agreement without the prior written consent of Merchant provided that such consent shall not be required for i the assignment or delegation to an affiliate of Elavon or ii the assignment or delegation to any Person into or with which Elavon shall merge or consolidate or who may acquire substantially all of Elavons stock or assets f Notices Any written notice to the other party under the Agreement will be deemed received upon the earlier of i actual receipt or ii five S business days after being deposited in the United States mail or iii one 1 business day after being deposited with a nationally recognized overnight carrier Such notices will be addressed to the Merchants last address shown on the records of Elavon or to Elavon at 7300 Chapman Highway Knoxville TN 37920 g Bankruptcy Merchant will immediately notify Elavon of any Bankruptcy Proceeding initiated by or against Merchant Merchant will include Elavon on the list and matrix of creditors as filed with the Bankruptcy Court whether or not a claim may exist at the time of filing Merchant acknowledges that the Agreement constitutes an executory contract to make a loan or extend other debt financing or financial accommodations to or for the benefit of Merchant and as such cannot be assumed or assigned in the event of Merchants bankruptcy h Customer Contact Merchant authorizes Elavon and Member to contact Merchants Customers or their Issuer if Elavon or Member determines that such contact is necessary to obtain information about any Transaction between Merchant and a Customer i Telephone Recording For quality assurance and training purposes Merchant authorizes Elavon to monitor and record telephone conversations at any time The decision to record any conversation shall be solely in Elavons discretion and pursuant to applicable Law j Communication with Merchant Merchant agrees that Elavon and Member may provide Merchant with information about their services including without limitation information about new products andor services by facsimile telephone mobile telephone andor electronic mail k Amendments Except as otherwise provided in the Agreement amendments to the Agreement shall be in writing and signed by the parties Notwithstanding the foregoing Elavon and Member may amend or modify the Agreement to the extent such changes are required by or attributable to changes in the Payment Network Regulations or other Laws upon written notice to Merchant Elavon or Member will inform Merchant of such a change in a periodic statement or other written notice and such change will become effective not less than thirty 30 days following the issuance of the notice Notwithstanding the previous sentence changes to fees authorized by the Agreement will be effective upon notice to Merchant unless a later effective date is provided 1 Severability and Waiver If any provision of the Agreement is found to be invalid illegal or otherwise unenforceable by a court of competent 12 Elavo City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 032911 FINAL m n o P jurisdiction the validity legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby if the essential terms and conditions of the Agreement for each party remain valid legal and enforceable None of the failure the delay by any party to exercise or the partial exercise of any right under the Agreement will operate as a waiver or estoppel of such right nor shall such amend the Agreement All waivers requested by a party must be signed by the waiving party Independent Contractors Elavon Member and Merchant will be deemed independent contractors and no one will be considered an agent joint venturer or partner of the other unless and to the extent otherwise specifically provided herein The Agreement has been entered into solely for the benefit of the parties hereto and is not intended to create an interest in any third party Survival All of the obligations of each party hereto that by their nature should survive termination or expiration of the Agreement in order to achieve its purposes including without limitation Sections 3 4 5 6 7 10 12 13 14 and 15b of the TOS shall so survive and remain binding upon and for the benefit of the parties hereto Counterparts Facsimile Signatures Delivery The Agreement may be signed in one or more counterparts each of which shall constitute an original and all of which taken together shall constitute one and the same agreement Delivery of the various documents and instruments comprising the Agreement may be accomplished by a facsimile transmission and such a signed facsimile or copy shall constitute a signed original Force Majeure Elavon and Member shall not be considered in default in performance of their obligations to the extent such performance is delayed by force majeure affecting their ability to so perform Force majeure shall include but not be limited to hostilities restraint of rulers or peoples revolution civil commotion or riots strike lockout epidemic accident fire flood earthquake windstorm explosion lack of or failure of telecommunication facilities regulation or ordinance demand or requirement of any government or governmental agency or any court tribunal or arbitrators having or claiming to have jurisdiction over the subject matter of the Agreement or over the parties hereto or any act of God or any act of government or any cause whether of the same or different nature existing now or in the future which is beyond the reasonable control of Elavon and Member Section B Glossary 16 ACH Rules The NACHA Operating Rules and Operating Guidelines which govern the interregional exchange and settlement of ACH transactions 17 Agreement The Payment Device Processing Agreement including the TOS MOG any Schedules attachments exhibits addenda the Merchant Application amendments or additions as permitted under the terms ofthe Agreement 18 Alternate Security The security described in Section A4bvi 19 American Express American Express Travel Related Services Company Inc 20 ACH Automated Clearing House 21 ACH Network The funds transfer system governed by the ACH Rules The ACH Network allows participating depository financial institutions to clear interbank entries electronically 22 Bankruptcy Proceeding With respect to a Person means i that the Person or any subsidiary of such Person shall a commence a voluntary case under the Bankruptcy Code of 1978 as amended or other federal bankruptcy laws as now or hereafter in effect b file a petition seeking to take advantage of any other applicable laws domestic or foreign relating to bankruptcy insolvency reorganization winding up or composition or adjustment of debts or any other similar conservatorship or receivership proceeding instituted or administered by any regulatory agency or body c consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under such bankruptcy laws or other applicable laws d apply for or consent to or fail to contest in a timely and appropriate manner the appointment of or the taking of possession by a trustee receiver custodian liquidator or similar entity of such Person or of all or any substantial part of its assets domestic or foreign e admit in writing its inability to pay its debts as they become due f make a general assignment for the benefit of creditors g make a conveyance fraudulent as to creditors under any applicable law or h take any action for the purpose of effecting any of the foregoing or ii that a case or other proceeding shall be commenced against the Person or any subsidiary of such Person in any court of competent jurisdiction or through any regulatory agency or body seeking a relief under the Bankruptcy Code of 1978 as amended or other federal bankruptcy laws as now or hereafter in effect or under any other applicable laws domestic or foreign relating to bankruptcy insolvency reorganization winding up or composition or adjustment of debts or b the appointment of a trustee receiver custodian liquidator or the like of such Person or of all or any substantial part ofthe assets domestic or foreign of such Person or any other similar conservatorship or receivership proceeding instituted or administered by any regulatory agency or body 23 Card Not Present The processing environment where the Payment Device is not physically presented to the 13 Ela A City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 did 03 2911 FNAL Merchant by the Cardholder as the form of payment at the time of the Transaction Card Not Present includes but is not limited to Mail Order Telephone Order and Electronic Commerce Transactions 24 Card Present The processing environment where the Payment Device is physically presented to the Merchant by the Cardholder as the form of payment at the time of the Transaction 25 Cardholder i the individual in whose name a Payment Device has been issued or ii any individual who possesses or uses a Payment Device and who purports to be the person in whose name the Payment Device was issued or who purports to be an authorized user of the Payment Device 26 Cardholder Data One or more of the following data elements pertaining to a Cardholders account card number Cardholder name if applicable card account activity Cardholder account balance andor such other data applicable to the Merchants card program 27 Chargeback A Transaction disputed by a Cardholder or Issuer pursuant to the Payment Network Regulations 28 Confidential Information All information or items proprietary to any party to the Agreement of which another party to the Agreement obtains knowledge or access as a result of the relationship formed as a result of the Agreement including but not limited to the following types of information and other information of a similar nature whether or not reduced to writing scientific technical or business information product makeup lists ideas concepts designs drawings techniques plans calculations system designs formulae algorithms programs software source and object code hardware manuals test procedures and results identity and description of computerized records identity and description of suppliers customer lists processes procedures trade secrets knowhow marketing techniques and material marketing and development plans price lists pricing policies and all other financial information 29 Convenience Fee A fee charged by Merchant for an added convenience to the Cardholder for the use of a Payment Device in a Transaction in accordance with the Payment Network Regulations 30 Credit Card A card or device associated with a revolving line of credit that may be used to purchase goods and services from Merchant or to pay an amount due to Merchant A Credit Card includes any of the following cards or devices that are associated with a line of credit extended to the Person to whom the card or device is issued i a Visa card or other card or device bearing the symbols of Visa USA Inc or Visa International Inc including Visa Gold cards ii a MasterCard card or other card or device bearing the symbols of MasterCard International Incorporated including MasterCard Gold cards iii a Discover Network card or other card or device bearing the symbols of Discover Network or iv any card or device bearing the symbol of any other Credit Card Association 31 Credit Card Associations i Visa ii MasterCard iii American Express iv Discover Network v Diners vi JCB and vii any other organization or association that hereafter contracts with Elavon andor Member to authorize capture andor settle Transactions effected with Credit Cards or signaturebased Debit Cards issued or sponsored by such organization or association and any successor organization or association to any ofthe foregoing 32 Customer A client of Merchant who elects to conduct a payment Transaction with Merchant through presentation of a Payment Device including a Cardholder 33 Debit Card A card or device bearing the symbols of one or more EFT Networks or Credit Card Associations which may be used to purchase goods and services from Merchant or to pay an amount due to Merchant by an electronic debit to the Cardholders designated deposit account A Debit Card includes i a card or device that bears the symbol of a Credit Card Association and may be used to conduct signaturebased offline debit Transactions and ii a card or device that bears the symbol of an EFT Network and can be used to conduct PINbased online debit Transactions 34 Demand Deposit Account DDA The commercial checking account at a financial institution acceptable to Elavon and Member designated by Merchant to facilitate payment for Transactions Chargebacks returns adjustments fees fines penalties assessments from the Payment Networks and other payments due under the Agreement 35 Diners Diners Club International Ltd 36 Disclosing Party The party providing the Confidential Information to the other party directly or indirectly via one or more third parties acting on behalf of and at the direction of the party providing its Confidential Information 37 Discover DFS Services LLC 38 Discover Network The payment network operated and maintained by Discover 39 EBT Card A card utilized for electronic benefits transfers 40 ECS Association Visa in its operation of the Visa POS Check Service NACHA and any regional ACH association or network the Federal Reserve in its processing of ACH entries or Demand Drafts or other legal replacements or substitutes for a Paper Check including under the Check Clearing for the 21 s Century Act or under applicable provisions of the Uniform Commercial Code and any other organization or association used by Elavon andor Member in connection with the ECS that is hereafter designated as an ECS Association by Elavon from time to time 41 EFT Networks i Interlink Network Inc Maestro USA Inc STAR Networks Inc NYCE Payments Network LLC PULSE Network LLC 14 Elan City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT vl 10110 dtd 032911 FINAL ACCELExchange Network Alaska Option Services Corporation Armed Forces Financial Network Credit Union 24 Inc NETS Inc and SHAZAM Inc and ii any other organization or association that hereafter authorizes Elavon andor Member to authorize capture andor settle Transactions effected with Debit Cards and any successor organization or association to any of the foregoing 42 Effective Date The date set forth in the signature block of Elavon on page 1 of the Agreement 43 Elavon As applicable Elavon Inc a Georgia corporation and any affiliate or subsidiary of Elavon Inc that provides Processing Services to a Merchant related to Transactions Elavon is a registered member service provider of each Member Elavon may also be referred to as Servicer in the Agreement the MOG or other documents provided to Merchant in connection with the Processing Services 44 Electronic Check Services ECS The service offering by Elavon pursuant to which Transactions effected via an ACH Payment Device are presented for clearing and settlement by or through an ECS Association 45 Electronic Commerce Transaction A Transaction that occurs when the Cardholder uses the Internet to make a payment to a Merchant 46 Electronic Gift Card EGC A special stored value card provided by Merchant that is redeemable for merchandise services or other Transactions 47 Excessive Activity The occurrence during any monthly period of Chargebacks andor Retrieval Requests in excess of one percent 1 of the gross dollar amount of Merchants Transactions or returns in excess of two and onehalf percent 25 of the gross dollar amount of Transactions 48 Interchange The clearing and settlement system for Visa MasterCard and where applicable Discover Credit Cards and Debit Cards where data is exchanged between Elavon and the Issuer through the applicable Payment Network 49 Issuer The financial institution or other entity that issued the Credit Card or Debit Card to the Cardholder 50 JCB JCB International Co Ltd 51 Laws All applicable local state and federal statutes regulations ordinances rules and other binding law in effect from time to time 52 Mail OrderTelephone Order MOTO Transaction For MO a Transaction that occurs when the Cardholder uses the mail to make a payment to a Merchant and for TO a Transaction that occurs when the Cardholder uses a telephone to make a payment to a Merchant 53 MasterCard MasterCard International Incorporated 54 Member The sponsoring Member designated on the Merchant Application or on a particular Schedule hereto as applicable Any Member may be changed by Elavon at any time and the Merchant will be provided notice of same 55 Merchant The entity set out in the first page of the Agreement and the affiliated entities listed on Schedule B attached hereto jointly and severally Entities may be added to Schedule B by substituting a new Schedule B that is in writing and signed by all parties and Merchant may add additional accounts or locations that are owned by Merchant without the need to execute a new Schedule B 56 Merchant Application The Merchant Application attached hereto as Schedule C and any additional document containing information regarding Merchants business that is submitted to Elavon and Member in connection with Merchants application for Processing Services including documents submitted by Merchant as a part of the bid process if applicable 57 Merchant Operating Guide MOG Elavons operating manual that prescribes rules and procedures governing Transactions and Merchants use of the Processing Services The MOG may be amended from time to time by Elavon in its sole discretion which amendments will be effective upon notice to Merchant 58 NACHAThe Electronic Payments Association The national association that establishes standards rules and procedures governing the ACH Network including the ACH Rules 59 Payment Device Any device or method used for the purpose of obtaining credit or debiting a designated account including a Credit Card Debit Card and any other financial transaction device or method including an Electronic Gift Card check whether converted into electronic form or used as a source document for an electronic fund transfer EBT Card stored value card smart card or other device created to be used for the purpose of obtaining credit or debiting a designated account that is now or hereafter effected through Transactions with Merchants 60 Payment Network Any Credit Card Association EFT Network ECS Association governmental agency or authority and any other entity or association that issues or sponsors a Payment Device 61 Payment Network Regulations Individually and collectively as the context may dictate all rules and operating regulations ofthe EFT Networks Credit Card Associations and ECS Associations and all rules operating regulations and guidelines for Transactions issued by Elavon from time to time including without limitation all amendments changes and revisions made thereto from time to time 62 Person Any individual firm corporation business trust partnership governmental agency or authority or other entity and shall include any successor by merger or otherwise of such entity 63 POS Device A terminal software or other pointofsale device at a Merchant location that conforms with the requirements established from time to time by Elavon and the applicable Payment Network 64 Processing Services The Payment Device processing services and other related products and services received by Merchant pursuant to the Agreement 15 E1avo City ofDenton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 03291 1 FINAL 65 Receiving Party The recipient of Confidential Information from the other party directly or indirectly via one or more third parties acting on behalf of and at the direction of the other party 66 Reserve Account The account established pursuant to Section A4 67 Reserve Amount The amount established pursuant to the calculation set forth in Section A4 68 Reserve Event The events designated in Section A4 69 Retrieval Request A request initiated by a Cardholder or Issuer that requires the Merchant to produce a legible copy of the Cardholders signed Transaction Receipt within a specified period of time 70 Servicer See Elavon 71 TOS These Terms of Service and all additions amendments modifications and replacements to the TOS as applicable 72 Transaction Any action between a Cardholder using a Payment Device and a Merchant that results in activity on the Cardholders account eg payment purchase refund or return 73 Transaction Receipt The paper or electronic record evidencing the purchase of goods or services from or payment to a Merchant by a Cardholder using a Payment Device 74 Value Added Servicer Any entity that stores processes transmits or accesses Payment Device data or Transaction data on behalf of Merchant or that provides software to Merchant for transaction processing storage or transmission except to the extent such services are performed by the entity in its capacity as an agent of Elavon performing Elavons obligations under the Agreement 75 Visa Visa USA Inc 16 Elan City of Denton TX PAYMENT DEVICE PROCESSING AGREEMENT v110110 dtd 032911 FINAL SCHEDULE A SCHEDULE OF FEES Separately Provided Schedule A SCHEDULE A SCHEDULE OF FEES Legal Entity Name Business Segment Category Description MCC Multiple MCCs Locations Initial Contract Term yrs Date Fees Last Updated VISA MasterCard Discover American Express JCB Diners PINDebit Checks EBT Other Total Account SetUp Implementation Fee Application Fee Rush Fee Monthly Statement Fee Supply Fee Terminal reprogram Fee per unit Onsite Training Research Fee Other Fee Annual Volume Average Ticket Annual Transactions 16250614 18932 11292799 18932 586305 18932 24457592 18932 s2bds111 Waived Waived Waived 500 Pass through Waived Quote Waived Waived 85837 59649 0 0 0 3097 129187 0 0 Per Unit 277769 III CARD PROCESSING FEES Pricing Type PassThrough All Visa MasterCard Discover and debit network authorization and Interchange fees assessments dues and other fees and charges are passed to Merchant at cost Servicer Transaction processing fees Include Visa MasterCard Discover PINDebit Auth Fen M Settle Fee t Settle Fee a 01200 01200 01200 01200 Interchange assessments and MasterCard and Discover settled volume Servicer may adjust Merchants pricing if i Merchants annualized VisaMasterCardDiscover average ticket or volume falls below projections by more than twenty percent 20 or ii Merchants VisaMasterCardDiscover average ticket or volume for any month falls below fifty percent 50 of such VisaMasterCardDiscover average ticket or volume for any month falls below fifty percent 50 of such VisaMasterCardDiscover average ticket of volume during the same month the previous calendar year IV AUTHORIZATION FEES Servicer Telecom Method Additional Fee for Telecom American Express Diners JCB EBT Other Card Type Other Card Type Voice VRU Authorization Voice Authorization with Address Verification OperatorAssist Authorization Bank Referral Authorization Other Auth Fees V OTHER TRANSACTION FEES SERVICES ELAVON PROPRIETARY CONFIDENTIAL Page 1 of 4 Schedule Printed On 702 PM 3292011 SCHEDULE A SCHEDULE OF FEES Batch Header Fee per occurrence AVS Fee per occurrence ACH Fee per occurrence ACH Returned Item Fee per occurrence FedWire Settlement per occurrence where available Chargeback Fee per occurrence Monthly Minimum per location Monthly Minimum Start Date Other Fee Other Fee VI OPTIONAL SERVICES A Reporting Merchant Connect Basic Setup Fee Waived Monthly Fee Waived Merchant Connect Premium Setup Fee Monthly Fee 1 User 25 Users 610 Users 11 Users Waived Waived Waived Waived Waived B Foreign Networks Gateways Using a third party network or gateway below requires Servicer to add an additional fee per authorization For foreign networks this is a separate authorization fee and for gateways this Servicer fee will be added to the Servicer authorization fee noted in Section IV Dial IP IP SSL TSYS Acquiring Solutions Vital Foreign Network ADS Foreign Network BuyPass Foreign Network Global Mapp or NDC Foreign Network FDMS Envoy or Nashville Foreign Network MerchantLink Gateway Other C EquipmentSoftware SAU Per MID Notes 1 Shipping and handling fees are included in the equipment price 2 All newly purchased equipment from Servicer is warranted for one year from date of purchase Servicer will replace defective equipment Merchant will pay a 35unit swap fee for the shipping and handling of the replacement equipment After the firstyear merchant will be quoted a new equipment cost based on market pricing 3 Merchant owned equipment is not warranted by Servicer but Merchant may purchase new equipment at market pricing from Servicer 4 See additional pricing sheet as needed ELAVON PROPRIETARY CONFIDENTIAL Page 2 of 4 SchedulePrinted On 702 PM 32912011 SCHEDULE A SCHEDULE OF FEES VII VALUE ADDED PRODUCTS Electronic Check Service Service Level and Processing Fees Conversion with Guarantee Guarantee Rate 2200 Per Transaction 0180 Conversion with Verification PerTransaction 0150 Conversion with Verification and Collections Per Transaction 0150 Conversion Only PerTransaction 0150 Conversion Only with Collections Per Transaction 0150 Combination Service Select any two Conversion with Guarantee Transactions from 0 Guarantee Rate 2200 Conversion with Verification Transactions from 0 Per Transaction 0150 Conversion Only Transactions from 0 PerTransactionF Returns Management to 2500 Per Transaction 0180 to 2500 to 0 Per Returned Item 3000 The PerTransaction fee applies to the original ECS transaction voidsreversals declines and to any resubmissions of returned Items Collections service options are not availablefor WEB TEL PPO or CCD Transactions No return or resubmission fees apply to returned conversion with guarantee transactions VIII PCI All merchants must comply with the requirements of the Payment Card Industry Data Security Standards PCI DSS Elavon requires Level 4 merchants determined based on transaction volume to validate PCI DSS compliance on an annual basis with initial validation to occur no later than ninety 90 days after account approval Merchant will be charged either the Annual PCI Fee or the Annual Administration Fee described above Annual PCI Fee based on connectivity number of merchant locations and thencurrent cost to Elavon of the services will be charged to merchants that use the services of the qualified third party assessor with whom Elavon has partnered Elavon will waive this fee in year one charging the fee in subsequent years on or about the anniversary date of account approval Annual Administration Fee of 35 will be charged to merchants that use the services of another qualified assessor and attest to PCI DSS validation on the website designated by Elavon Any merchant that has not validated PCI DSS compliance within ninety 90 days of account approval or in subsequent years on or before the anniversary date of account approval will be charged a monthly noncompliance fee of 25 until Elavon is provided with validation of compliance Merchant may be eligible for Data Breach Coverage following account approval and PCI DSS compliance validation See the PCI Compliance Program Overview for coverage details and conditions These rates are subject to change with a thirty 30 day notification PCI Compliance Validation Process Complete your Payment Card Industry Data Security Standard PCI DSS validation Visit our PCI website httpPcielavoncom for education and tips on protecting cardholder data You can also connect with our Visa and MasterCard@ accredited Qualified Security Assessor QSA and Approved Scanning Vendor ASV IX TERM Term Term of five 5 years early termination fee is equal to the sum of i the rolling twelve month volume multiplied by the settlement fee percentage and ii sum of the monetary iorization and settlement per Item fees multiplied by the rolling twelve month transaction count This figure Is then multiplied by the number ofyears in Initial Term multiplied by a factor of one hundredth nDl and then multiplied by the number of months remaining in the term based on the month of MERCHANT ACKNOWLEDGEMENT Signature ELAVON PROPRIETARY CONFIDENTIAL Page 3 of4 Schedule Printed On 702 PM 3292011 n Q D SCHEDULE A SCHEDULE OF FEES Name C12xq o bd D 1 Title ELAVON PROPRIETARY CONFIDENTIAL Page 4of4 Schedule Printed On 702 PM 3292011 Elaon SCHEDULE B AFFTTTATED ENTITIES Check one Elavon Payment Device ProcessingAgreement v110110 X Merchant named on page 1 only and all locations will operate under Federal Tax ID Number 0756000514 Merchant named on page 1 with Federal Tax ID Number and the following affiliates a separate Form W9 or Form W8BEN as applicable must be submitted for each entity identified below Name Tax ID Number MERCHANT on behalf of itself and each of the ELAVON IN affiliated entities ideptifi Y7LLBy 1 j Name fr o r LNameC10M1 Title Q 1 Title Je oe Date 1 Y Schedule ffective Date MEMBE BY Name Y In 7VV Title J 10oA c P eS6eI Schedule B Merchant Application Large Relationship USA MerchantCorporate Name as described in the Agreement individual DBAs will be obtained Primary Website during the implementation phase wwwcityofdentoncomCityofDenton contact Antonio Puente Phone Number 940 3497283 Ext Address 215 E McKinney Use a Physical Street Address NO PO BOX Address2 Federal Tax ID Incorporation Data St tae City Denton State TX Zip Code 76201 Year When an affiliated entities will be covered b the Agreement enter the entity names and Federal Tax IDs on Schedule B Member Elavon Inc US Bank National Association Key Bank National Association if selected then all references to Elavon inthe Agreement shall mean Key Merchant Services LLC ajoint venture between Key Bank National Association and Elavon Inc Public Corporation Closely Held Corp Sub S Corp Sole Proprietor Business I General Partnership Limited Partnership Limited Liability Company Organization Government Transit Authority Utility PublicPrivate Consortium Type CollegeUniversity Health Care Religious NonProfit Charitable or Social Mark all thatapply Other ASSnEStateTrUSt Tax Exempt NO YES ifYES State Tax Exempt documentation will be required for eachEntity and State where a location processes The financial statements provided by Merchant must be in the name of the entity identified above Ifthe financial statements are in the name ofanother entity then additional underwriting requirements will apply Financials Publicly Traded symbol GovemmentInstitutional Organization Ironlineprovide website notation required Private 3rdParty Audited required Bank Provided Description ofProductServices please be specific Government and utility services Retail 40 Restaurant 0 Lodging 0 Pay at Pump 0 Processing Environments Mail Order 10 Telephone Order 0 Supermarket 0 Total mustequal 100 Internet 50 Transactions accepted through a website requires that specific securitypolicy requirements be met in order to process Card Types Merchant shall determine in accordance withthe PaymentNetwork Regulations which types of Credit Cards and Debit Cards it will agree to accept as a form of payment from its Customers The card types include Visa Credit Visa Debit MasterCard Credit MasterCard Debit and Discover JCB DI CUP Elavon Point of Sale Terminals VAR Teleworks Network Other Solutions mark all that apply Elavon Software Elavon Certified El YES 13ce tPending El NO Listother Network ADVANCED DEPOSIT PROGRAM ELECTION I DO elect to participate in the Advance Deposit Service ProgramTHISISLIMITEDTOHOSPITALITYMCCSDONOT Checking Accounts only Submission of bank documentation is required for all DDAs submitted and we may confirm any data directly withthe bank Primary Bank locations may be different and will be I Primary Bank Contact Name Primary Bank Contact Phone at the mid levelcaptured Primary ABARouting for ACH Primary DDA Account for ACH DDA Documentation one required ACH Debit Blocking Bank Letter Voided Check NO YES By signing below the applicant merchant Merchant and its authorized representative represent and warrant to Elavon Inc andMember that i all information provided in or with this merchant application Merchant Application is true and complete and properly reflects the business and financial condition ofMerchant and ii the person signing this Merchant Application authorized to bind Merchant to all provisions ofthe Agreement MERCHAN l By Date 5 3 I Name 0QY Jd Title 1 1 l Cr PRINT PRINT 1 Merchant App Large Relationship USA v 021011 Elaon City ofDenton TX SCHEDULE E v110110 dtd 032211 FINAL SCHEDULE E ECS SERVICES This Schedule E supplements is made a part of and is subject to the terms and conditions ofthe Agreement ELECTRONIC CHECK SERVICES ELECTED BY MERCHANT Merchant elects and agrees to the following Electronic Check Services as part of the Payment Device Processing Services as such Electronic Check Services are described in this Schedule E and in the Electronic Check Services Merchant Operating Guide the ECS MOG Electronic Check Services General Requirements and the ECS MOG Check Conversion Service Levels check desired options ACH Processing Service Levels check desired options E Conversion with Guarantee check all that apply POP BOC E ARCS Conversion with Verification check all that apply POP BOC2 ARCS Conversion with Verification and Collections check all that apply POP BOC2 ARCS Conversion Only check all that apply POP BOC2 ARC3 Conversion Only with Collections check all that apply POP BOC2 ARCS 1 Point ofPurchase entries 2Back Office Conversion entries 3 AccountReceivable Conversion entries A separate collections agreement is required Image Options check one POS with Image Cash Office Image COI CentralizedEnterprise Image CI Outsourced Image OI Not Applicable ACH Processing Schedule E1 ECS Additional Services Supplement Exhibit A to Schedule E1 Fees for Additional ECS Services Exhibit B to Schedule E1 Hold Check Agreement ACHProcessing with Verification check all that apply InternetInitiated Entries WEBCCD IVRInitiatedEntries TELCCD Customer ServiceInitiated Entries TELCCD RecurringEntries WEBPPDCCD ACHProcessing Only checkall that apply InternetInitiated Entries WEBCCD IVRInitiatedEntries TELCCD Customer ServiceInitiated Entries TELCCD RecurringEntries WEBPPDCCD Entries drawnon business accounts must be classified as CCDCorporate Credit or Debit regardless of initiation channel Deliverv Method check all that aDDlv Visa Online EnCircleDirect Online Visa Batch ECS ACH Batch Hosted Enterprise Batch Enterprise Billing Solutions Schedule K required Capitalized terms used and not otherwise defined in this Schedule shall have the meanings ascribed to them in the Agreement or the ECS Rules including in the ECS MOG and the ECS Primer Except as the context requires otherwise herein the terms ECS and Electronic Check Services include both electronic check conversion and Automated Clearing House ACH Transaction processing IN WITNESS WHEREOF the parties hereto have executed this Schedule E to the Agreement THE CITY OF DENTON TEXAS on behalf of itself and each of the affiliated entities identified on Schedule BJ@ the ELAVON By f I By Name imo76LZ 1 Yi IIPR Name e COWIt Title r eS 4e t Title 14 Date Schedule Effective Date MEMBE By Name 11n err y d ITitle 1PPN1D Lr BPS Ae cSchedule E E1av Section A Electronic Check Services General Requirements In the course of its acceptance and use of ECS Merchant represents warrants and covenants the following 1 2 3 4 5 6 7 8 Merchant shall comply with and be bound by a the ECS Rules including the ACH Rules the ECS MOG and the ECS Primer and b Laws including but not limited to the Check Clearing for the 215 Century Act and Regulation CC Article 3 and Article 4 of the Uniform Commercial Code as in effect in the applicable states the Electronic Fund Transfer Act and Regulation E and the Fair Credit Reporting Act as amended by the Fair and Accurate Credit Transactions Act The current version of the ECS MOG is located at our website httpswwwmerchantconnectcomCVTRWebElectro nicCheckServicedo Merchant shall pay the fees for ECS as set forth in the Schedule A Schedule of Fees to the Agreement as such Schedule of Fees is supplemented or modified by any exhibits or attachments to this Schedule In the event Merchant accepts for ECS any payment that is ineligible for ECS as specified in the ECS MOG for any reason such Transaction is subject to Chargeback Merchant may be liable for the amount of the Transaction and any actual damages related to or arising out of processing a Transaction that has been charged back Merchant shall cause a Check ReaderImager to be readily available for use at all Merchant locations at which Merchant accepts Paper Checks for ECS processing Merchant must use commercially reasonable procedures to verify the identity of each Customer that presents a Paper Check or Customer ABA Routing Number and account information for ECS processing Merchant shall be solely responsible for providing Customers with notifications and disclosures in connection with ECS including but not limited to posting all point of sale signage and distributing all Customer takeaways and all notices and disclosures required to be provided under the ECS Rules and Laws Merchant may use the ECS only in connection with the presentment and acceptance of a Paper Check or Customer ABA Routing Number and account information for ECS processing in payment for goods or services sold by Merchant or in payment for an obligation owed to Merchant and only in compliance with the ECS Rules Merchant shall be the sole user of the ECS and Merchant may not resell or otherwise transfer any portion of ECS or any associated information in whole or in part to any other Person Merchant represents and warrants with respect to all ECS Transactions submitted for processing by City ofDenton TX SCHEDULE E v110110 dtd 032211 FINAL Elavon that i the Customer has duly authorized the debiting or crediting ofthe Customers account for the amount of the ECS Transaction in accordance with Laws ii the Transaction represents an obligation or right of the Person who is tendering the Paper Check or submitting the Customer ABA Routing Number and account information for ECS processing and iii the ECS Transaction is for merchandise actually sold or rented for services actually rendered or for the actual amount due and owing from the Customer to Merchant or from the Merchant to the Customer in each case for the actual price of such merchandise or services including tax or for the actual amount due and owing to Merchant or the Customer as applicable Merchant represents and warrants that no portion of any ECS Transaction involves any element of Merchants extension of credit 9 Merchant is responsible to Elavon for any Transaction charged back by Elavon or its agent in accordance with the Agreement including the ECS MOG and for any fines penalties and assessments of the Payment Networks incurred as a result of Merchants non compliance with Laws or the ECS Rules Merchant agrees to immediately pay to Elavon or its agent by means of debit or setoff initiated by Elavon or its agent submission of payment by Merchant or otherwise at the sole option of Elavon an amount equal to the amount of any ECS Transaction that is stopped not settled or charged back as well as any related fees and charges 10 Merchant must fully cooperate with all parties in the resolution of Customer disputes as well as Chargebacks returns adjustments representments and errors in accordance with the ECS Rules and Laws 11 All ofthe representations and warranties made to Visa as a Merchant pursuant to the Visa POS Check Service Operating Regulations and all of the representations and warranties an Originating Depository Financial Institution or a Third Party Sender is deemed to make on behalf of an Originator pursuant to the ACH Rules shall be deemed representations and warranties Merchant makes to Elavon and Member upon Merchants submission of an Item or a Transaction for ECS processing a Merchant acknowledges Visas right to terminate or limit its relationship with Member or to terminate the Visa POS Check Service at any time Merchant further acknowledges that Visa may permanently prohibit Merchants participation in the Visa POS Check Service in the event of A fraudulent activity B presenting a Transaction that was not the result of an act between Merchant and a Customer C presenting a Transaction as a Customerpresent Transaction where the Customer was not present at the point of sale or Merchant accepts previously voided Paper Checks D repeated Schedule E MAO violations of the Visa POS Check Service Operating Regulations or E any other activity that may result in undue economic hardship or damages to the goodwill of the Visa POS Check Service b Merchant has satisfied all of the Merchant standards and obligations set forth in the Visa POS Check Service Operating Regulations and the Originator standards and obligations set forth in the ACH Rules as of the Effective Date of this Schedule and shall continue to satisfy such standards and obligations during the Initial Term and any Renewal Term as applicable 12 Merchant is responsible for and will ensure that all information including MICR data and payment amounts are accurately captured from a Paper Check in accordance with the applicable ECS Rules and that all such information and Customer ABA Routing Number and account information for ECS processing are accurately reflected in the related Item Merchant sends to Elavon for processing through ECS Merchant will not submit for clearing or settlement any physical Paper Check unless and until Elavon and Member have processed and settled a Chargeback to Merchant with respect to any Items created from such Paper Check 13 Merchant will not disclose to third parties any information related to ECS Transactions including but not limited to Customer ABA Routing Number and account information drivers license number telephone number or social security number except as specified in the Agreement including the ECS MOG Merchant shall keep all such information confidential and secure in accordance with the Agreement and Laws 14 Merchant does not have the right to use ECS data for any purpose other than to support the ECS itself 15 Merchant must treat all ECS documents including but not limited to the Agreement including the ECS Rules the ECS MOG and ECS collateral material or related guides as confidential and proprietary information and must protect it with the same degree ofcare as Merchant would protect its own confidential and proprietary information and as further specified in the Agreement 16 Merchants Agreement and use of the ECS may be terminated immediately by Elavon for failure to comply with the terms of this Schedule the Agreement or Laws 17 Merchant assumes full responsibility for and agrees to indemnify and protect Elavon against any losses suffered by Elavon as a result of Elavon complying with Merchants directions in submitting or resubmitting any Item for processing Further Merchant assumes full responsibility for the alteration of any Item made at Merchants direction prior to resubmission by Elavon of the Item for processing Merchant will not request or direct Elavon to modify or alter any Item or to submit or resubmit any Item City dDenton TX SCHEDULE E v110110 dtd032211 FINAL for processing where Merchant knows or should know that such modification alteration submission or resubmission is not permitted by Law Section B Glossary 18 ABA Routing Number The ABA number that uniquely identifies the bank that holds the Customer account to be debited or credited through ECS 19 Authorization A process where a Drawee Bank processor or Authorizing Agent approves a Transaction including as specified in the Visa POS Check Service Operating Regulations 20 Authorizing Agent A third party designated by Elavon to provide approvals and declines for Transactions 21 Batch The total of the Transactions processed since a Merchants last settlement 22 Chargeback For purposes of this Schedule Chargeback means i a sales Transaction disputed by a Customer or an Item not in compliance with Conversion with Guarantee warranty provisions or ECS Rules ii for all Service Levels other than Conversion with Guarantee the face amount of any Item that is returned by the Drawee Bank or an ECS Association to Elavon unpaid and that is ineligible for resubmission to the Drawee Bank or the ECS Association including any Item returned for non sufficient or uncollected funds after the third presentment and iii for all Service Levels an Item that is not in compliance with Merchants obligations representations and warranties under the Agreement or this Schedule 23 Check ReaderImager A device certified by Elavon that electronically captures the MICR line andor an image of the Paper Check 24 Check Replacement Document A Demand Draft PhotoInLieu or Substitute Check 25 Demand Draft A negotiable instrument drawn on the Customers checking account that is created from transaction data included in an Item and that does not bear the Customers signature but that is authorized by the Customer and is able to be processed via standard check processing methods 26 Drawee Bank The financial institution where a Customer maintains a checking or other deposit account i on which a Paper Check that serves as the source document for an Item is drawn or ii as to which a Customer provides the ABA Routing Number and account information for use in generating an Item 27 ECS Primer The detailed information relating to ECS processes and implementation provided by Elavon to Merchant which must be used by Merchant in conjunction with the technical specifications and certification requirements provided by Elavon to promote integrated point of sale system connectivity and integration between Merchant and Elavon 28 ECS Rules Means a all applicable rules and operating regulations of or applicable to the ECS Schedule E Elao Associations b the ECS MOG and c the ECS Primer in each case including without limitation all amendments changes and revisions made thereto from time to time 29 Item An electronic file or entry representing a Transaction that is created from i the information captured by Merchant from a Paper Check using a Check ReaderImager or ii Customer inputs of ABA Routing Number and account information that is forwarded by Merchant to Elavon or Member in accordance with the Agreement 30 MICR The magnetic ink character read line encoded on a Paper Check that contains information about the Customers checking account including the ABA Routing Number and checking account number 31 Paper Check A Customers paper check presented to Merchant for payment to the Merchant which check will serve as the source document for Items 32 PhotoInLieu A photocopy of a Paper Check other than a Substitute Check 33 Substitute Check A draft that includes images of the front and back of the original Paper Check and that may meet the requirements for a Substitute Check under the Check Clearing for the 21 Century Act and related regulations 34 Visa POS Check Service Visas proprietary check clearing product which utilizes the VisaNet network to offer direct checking account access to authorize clear and settle consumer checks drawn on banks participating in this service 35 Visa POS Check Service Operating Regulations A set of specifications guidelines and principles defined by Visa that govern the operation and flow of information for transactions participating in the Visa POS Check Service City ofDenton TX SCHEDULE E v110110 dtd032211 FINAL Schedule E ElavOn City ofDenton TX SCHEDULE I v031811 dtd 032911 FINAL SCIIEDULEI PROCESSING SERVICES FOR GOVERNMENT ENTITIES AND INSTITUTIONS PROCESSING SERVICES FOR GOVERNMENT ENTITIES AND INSTITUTIONS Merchant elects and agrees to accept the Payment Device Processing Services for government entities and institutions as such services are further described in this Schedule and the Exhibits hereto and subject to the terms and conditions of the applicable provisions of the Agreement Except as expressly modified pursuant to this Schedule all terms and conditions of the Agreement including all other Schedules to the Agreement remain in full force and effect and shall govern the relationship among the parties to this Schedule I Elavon Fee Collection Model check one Direct Debit Compensating Balances when available Monthly Net Settlement Invoice when available Capitalized terms used and not otherwise defined in this Schedule I shall have the meanings ascribed to them in the Agreement or in the Merchant Operating Guide MOG which is incorporated herein by this reference IN WITNESS WHEREOF the parties hereto have executed this Schedule I to the Agreement THE CITY OF DENTON TEXAS ELAVON on behalf of itself and each of the affiliated entities identified on Schedule B to heA entthe By V MERCHA Name 6 07M e Ielf By f Title 19wp Ui E PSb e c Name C4 Y I Date i Title Schedule I Effective Date MEMBE By Name r i mr2 ZM1 z nK Title rex Q9 X Schedule l Eldon City ofDenton TX SCHEDULE I v031811 dtd 032911 FINAL Section A General Provisions Applicable to All action taken by Elavon or Member with respect to Merchants under this Schedule the DDA or Reserve Account in accordance with the Agreement or C any breach by Merchant of 1 Fees Elavon and Member will be compensated for any obligation under thisAgreement Merchant the Processing Services provided under this Schedule will not make any claims against Elavon or as provided in the Agreement as such Agreement may Member for any liabilities claims losses costs be modified by this Schedule expenses and demands of any kind or nature 2 The following provisions hereby replace the like arising out of or in connection with any of the numbered provisions of the Agreement or are hereby foregoing suits claims losses demands or inserted or deleted from the Agreement as indicated damages for Merchants operating under this Schedule e Section A6bii Elavon Responsibilities is a Section A4ai Security Agreement is revised to read as follows deleted ii Elavon Responsibilities Elavon will be b Section A4aii Perfection is deleted responsible for and will at its own expense defend c Section A6a Accuracy of Information is itself against any suits claims losses demands or revised to read as follows damages arising out of A Elavons breach of the a Accuracy of Information Merchant must Agreement or B Elavons negligence gross promptly notify Elavon in writing of any material negligence or willful misconduct changes to the information provided in the f Section A8bii Financial Information is Merchant Application in the bid process if revised to read as follows applicable or otherwise in the Agreement ii Financial Information Upon the request of including without limitation any additional either Elavon or Member Merchant will provide location or new facility at which Merchant desires Elavon and Member audited financial statements to use the Processing Services provided under this prepared by an independent certified public Schedule the form of entity change in control accountant selected by Merchant or if Merchant material changes to the type of goods and services is audited by a governmental authority then provided andor payments accepted and how Merchant will provide financial statements from Transactions are completed eg by telephone such governmental authority Within one hundred mail electronic commerce or in person at twenty 120 days after the end of each fiscal year Merchants place ofbusiness The notice must be or in the case of a government entity when received by Elavon at least ten 10 business days available Merchant will furnish Elavon and prior to the change Merchant will promptly Member as requested a financial statement of provide any additional information reasonably profit and loss for the fiscal year and a balance requested by Elavon Merchant will be sheet as of the end ofthe fiscal year each audited responsible for all losses and expenses incurred as provided above Merchant shall also provide by Elavon or Member arising out of Merchants Elavon and Member such interim financial failure to provide proper notice or requested statements and other information as Elavon or information for any such change and will not Member may request from time to time make any claims against Elavon or Member for g Section A11a Products or Services is any losses sustained by Merchant as a result of revised to read as follows such failure Elavon may immediately terminate a Products or Services Merchant may desire the Agreement upon a material change to the to use a Value Added Servicer to assist Merchant information in the Merchant Application if such with its Transactions Merchant shall not utilize change is not approved by Elavon Elavon has any Value Added Servicer unless Merchant has the right to rely upon written instructions disclosed such use to Elavon previously in submitted by Merchant to request changes to writing and unless such Value Added Servicer is Merchants business information Merchant may fully compliant with all Laws and Payment request written confirmation of Elavons consent Network Regulations Any Value Added Servicer to the changes to the Merchants business used by Merchant must be registered with the information Payment Networks prior to the performance of d Section A6bi Merchant Responsibilities any contracted services on behalf of Merchant is revised to read as follows Further as between the parties to this Agreement i Merchant Responsibilities As between Merchant will be bound by the acts and omissions Merchant Elavon and Member Merchant will be ofits Value Added Servicer and Merchant will be responsible for and at its own expense defend responsible for compliance by such Value Added itself against any suits claims losses demands or Servicer with all Laws and Payment Network damages arising out of or in connection with A Regulations Merchant will be responsible for any any dispute with a Customer Cardholder or any loss cost or expense incurred in connection with third party relating to any Transaction B any or by reason of Merchants use of any Value Elavon City ofDenton TX SCHEDULE I v031811 dtd 032911 FINAL Added Servicer Neither Elavon nor Member is arise from Merchants use or misuse of such third responsible for the Value Added Servicer nor are party passwords they responsible for any Transaction until Elavon k Section A15b Jurisdiction and Venue receives data for the Transaction in the format Governing Law is deleted required by Elavon 1 Section A15c Exclusivity is deleted h Section A12diii Early Termination Fee 3 In addition to the termination rights set forth in DELETED Section A12bi of the Agreement Merchant i Section A13d Security Program shall have the following termination right added to the Compliance is revised to read as follows Agreement as Section A12biC d Security Program Compliance Merchant C The Agreement may be terminated by Merchant must comply with the requirements of the in the event that sufficient legislative appropriation is Payment Card Industry PCI Data Security not available provided that Merchant gives Elavon Standard PCI DSS including the Cardholder and Member sixty 60 days notice prior to Information Security Program CISP of Visa the termination Site Data Protection Program SDP of MasterCard the Data Security DISC Program and Section B Elavon Fee Collection Models the PCI DSS regulations of Discover Network and the security programs of any other Payment 4 Direct Debit Fee Collection Model If Merchant Network as to which Merchant accepts a Payment elects the Direct Debit fee collection model on page 1 Device as applicable and any modifications to of this Schedule I Section A5a Fees of the or replacements ofsuch programs that may occur Agreement remains unchanged and in full force and from time to time collectively Security effect Programs Upon request Elavon will provide 5 Compensating Balances Fee Collection Model If Merchant with the respective website links to Merchant elects the Compensating Balances fee obtain the current requirements of the Visa collection model on page 1 of this Schedule I Section MasterCard and Discover Network Security A5a Fees of the Agreement is hereby replaced Programs All Value Added Servicers from with the following provision whom Merchant procures services must comply a Section A5a Fees Notwithstanding any with the requirements of those Security Programs provisions of Section A3b or Section Merchant and not Elavon or Member is A3c to the contrary with respect to the responsible for Merchants own actions or collection of fees by Elavon and Member inactions those of Merchants officers directors Merchant will pay Elavon and Member fees in the shareholders employees and agents including ordinary course of business for services supplies any Value Added Servicer collectively and equipment in accordance with Schedule A Merchants Agents Merchant shall be any amendment to Schedule A and any additional responsible for any liability loss cost or expense application or setup forms provided by Elavon resulting from the violation of any of the Security and Member in writing to Merchant Such fees Program requirements by Merchant or any of will be calculated once each month for the Merchants Agents previous months activity Elavon will send j Section A14c Passwords is revised to read Member an invoice reflecting the amount of fees as follows due and Member will enter such amount in c Passwords If Merchant receives a password Merchants compensating balance calculation from Elavon to access any of Elavons databases Member will pay Elavon such amount on or services Merchant will i keep the password Merchants behalf within thirty 30 days confidential ii not allow any other entity or Alternatively Elavon may net out the fees due person to use the password or gain access to from any funds due Merchant under the Elavons databases or services iii be Agreement responsible for all action taken by any user of the 6 Monthly Net Settlement Fee Collection Model If password that obtained access to the password Merchant elects the Monthly Net Settlement fee from Merchant and iv promptly notify Elavon collection model on page 1 of this Schedule 1 Section if Merchant believes Elavons databases or A5a Fees of the Agreement is hereby replaced services or Merchants information has been with the following provision compromised by use ofthe password IfMerchant a Section A5a Fees Notwithstanding any receives passwords from a third party for products provisions of Section A3b or Section or services related to Transaction processing A3c to the contrary with respect to the Merchant must protect such passwords in the collection of fees by Elavon and Member manner required by such third parry and be Merchant will pay Elavon and Member fees in the responsible any losses costs or expenses that ordinary course ofbusiness for services supplies and equipment in accordance with Schedule A Elaon City ofDenton TX SCHEDULE I v031811 dtd032911 FINAL any amendment to Schedule A and any additional application or setup forms provided by Elavon and Member in writing to Merchant Such fees will be calculated daily and will be offset by Elavon and Member against amounts owed by Elavon and Member to Merchant for i on the first day of each month for the prior months Processing Services and ii following the first day of the month for fees and other amounts owed to Elavon and Member pursuant to Schedule A that are not available or reasonably calculable as ofthe last day of a particular month In the event that the funds owed by Elavon and Member to Merchant on the first day of a calendar month are insufficient to offset amounts Merchant owes to Elavon and Member for Processing Services provided during the prior month Elavon and Member may offset any unpaid balance owed by Merchant against future amounts Elavon and Member owe or will owe to Merchant until Merchants financial obligations are fully satisfied 7 Invoice Fee Collection Model IfMerchant elects the Invoice fee collection model on page 1 of this Schedule I Section A5a Fees of the Agreement is hereby replaced with the following provision a Section A5a Fees Notwithstanding any provisions of Section A3b or Section A3c to the contrary with respect to the collection of fees by Elavon and Member Merchant will pay Elavon and Member fees in the ordinary course of business for services supplies and equipment in accordance with Schedule A any amendment to Schedule A and any additional application or setup forms provided by Elavon and Member in writing to Merchant Such fees will be calculated once each month for the previous months activity Elavon will send Merchant an invoice reflecting the fees due which Merchant must pay within thirty 30 days of the invoice date In addition to all other available remedies Elavon and Member may offset any outstanding or uncollected amounts that are more than ninety 90 days past due from i any amounts they would otherwise be obligated to deposit into the DDA and ii any other amounts Elavon or Member may owe Merchant under the Agreement Section C GovernmentPublic Institution Service Fees 8 GovernmentPublic Institution Service Fees Merchant will not charge either a Convenience Fee or a GovernmentPublic Institution Service Fees without execution of additional Schedules as necessary