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
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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
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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
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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
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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
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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
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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
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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
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Name C4 Y I
Date i
Title Schedule I Effective Date
MEMBE
By
Name
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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