2011-047SALega1\0ur Documents\0rdinances\111Merchant Services Contract Ord-Elavon.doc
ORDINANCE NO. 2011-047
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
CREDIT/DEBIT 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 credit/debit 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 credit/debit 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.
SALegal\Our Documents\Ordinances\l IWerchant Services Contract Ord-Elavon.doc
~4
PASSED AND APPROVED this the , 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~, &A.D.,
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 of the 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 Elavon's
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 "A-1")
(b) Elavon's Proposal. (Exhibit "A-2");
(c) Insurance Requirements. (Exhibit "B");
(d) Form CIQ - Conflict of Interest 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 of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
IV.
WARRANTY
Elavon warrants and covenants to City that all goods and services provided by Elavon, Elavon's
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 "A-I and A-2". 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 Elavon's fees due hereunder shall be made to Elavon following City's acceptance
of the work and within thirty (30) days of receiving Elavon's 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 A-1.
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 of the 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 A-1.
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 attorney's fees and
expenses, in any way arising out of related to, or resulting from (a) Elavon's breach of the Contract, or
(B) Elavon's negligence, gross negligence or willful misconduct.
In the event the City is a named party to a suit arising out of the 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 Elavon's obligation to defend City or as a
waiver of Elavon's obligation to indemnify City pursuant to this Contract. Elavon shall retain defense
counsel within fourteen (14) business days of City's written notice that City is invoking its right to
indemnification under this Contract. If Elavon fails to retain counsel within 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 I(b) of the Agreement, Exhibit A-
1.
(City dDenton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 of the 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 of the work embraced in this Contract.
XV.
AFFIDAVIT OF NO PROHIBITED INTEREST
Elavon acknowledges and represents it.is 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 of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 15(e) of the Agreement, Exhibit A-l.
XXI.
HEADINGS
The headings of this Contract are for the convenience of reference only and shall not affect in
any manner any of the 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 Elavon's offices. The cost of the 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 City's 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 of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
XXIII.
NON-EXCLUSIVE CONTRACT
This Contract is non-exclusive 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 of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year
and day first above written.
ELAVON, INC.
BY.
Date: 5/"/.
Name: no7WV
Title: 17~e.Uioxr%/yl
c4 Bxe.sIoeot ~
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 of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
EXHIBIT B
CITY OF DENTON
INSURANCE REQUIREMENTS FOR CONTRACTORS
Bidder's 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 disqualified from award of the contract. Upon bid award, all
insurance requirements shall become contractual obligations, which the successful bidder
shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the 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 of bid award, Contractor shall file 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 of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall comply
with the following general specifications, and shall be maintained in compliance with these
general specifications throughout the duration of the Contract, or longer, if so noted:
• Each policy shall be issued by a company authorized to do business in the State of
Texas with an A.M. Best Company rating of at least A-.
• Any deductibles or self-insured retentions shall be the exclusive responsibility of
contractor.
• Liability policies shall be endorsed to provide the following:
• Name as additional insured the City of Denton, 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 insurer's limit of liability.
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 claims-made 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 of the required insurance be provided under a form of coverage 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 of the lapse date. If insurance is not reinstated, City may,
at its sole option, terminate this agreement effective on the date of the lapse.
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 of the Contract, or longer, if so noted:
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000,000.00 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 $500,000.00 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 of the above requirement shall be in the form of a policy endorsement for:
• any auto, or
• all owned, hired and non-owned autos.
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
EXHIBIT B
[X] Workers Compensation Insurance
Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to
meeting the minimum statutory requirements for issuance of such insurance, has Employer's
Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a
$500,000 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 §406.096 of the Texas Labor Code and rule 28TAC 110.110
of the Texas Worker's Compensation Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work
under this contract, an Owner's and Contractor's 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 Contractor's 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 Contractor's
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 of not 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 All-Risk 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 of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
EXHIBIT B
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside 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" of the contract specifications.
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22. 11 FINAL
EXHIBIT B
ATTACHMENT 1
[ ] Worker's Compensation Coverage for Building or Construction Projects for Governmental
Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of
authority to self-insure issued by the commission, or a coverage agreement (TWCC-81,
TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance
coverage for the person's or entity's 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 contractor's/person's work on the project has been completed and accepted by the
governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) - 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,
owner-operators, 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 food/beverage 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 401.011(44) 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 contractor's current certificate of coverage ends during
the duration of the 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 03.22.11 FINAL
EXHIBIT B
2) no later than seven days after receipt by the contractor, 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.
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 401.011(44) 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, if the coverage period shown on the current certificate of coverage
ends during the duration of the 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 of coverage of any person providing services on the project; and
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 self-insured, with the commission's
Division of Self-Insurance Regulation. Providing false or misleading information may
subject the contractor to administrative penalties, criminal penalties, civil penalties, or other
civil actions.
K. The contractor's 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 if the contractor
does not remedy the breach within ten days after receipt of notice of breach from the
governmental entity.
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 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 H.B. 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 176.006, Local Government Code.
A person commits an offense if the person violates Section 176.006, 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 176.001(1-a), 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 F-1 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 06/29/2007
(City of Denton, TX) Attachment A - MERCHANT SERVICES CONTRACT with INS & CIQ Elavon 03.22.11 FINAL
Ela o 1
(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEiNIENT v.l 1.01.10 did 03.29.11 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 Merchant's receipt and use of the 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 W-9 (required for U.S. entities)
❑ Substitute Form W-813EN (required for non-U.S
entities)
Payment Device Processing Services Available to
Merchants Generally (check desired Processing Services):
® Credit Card Services
® Debit Card (signature-based) Services
® Debit Card (PIN-based) 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 PIN-Based, 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:
' d elt
Name: /nip y~ /Q0 / /y~
Title: d ewleey-
Date: 1 6 N
("Effe ive Date")
MEMBER
By:
Name:~~/JJ'r»~T~~e1~/e1
Title:.,.1«/Oi2 free AgeslDaIL4
Elav n
(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.l 1.01.10 M03.29.11 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 and/or on the
appropriate Schedule. The terms and conditions for the
acceptance of the applicable Payment Devices and
Merchant's 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
h ttps:// www.merchantconnect.corm/CWRWeb!pdf,,~ MOG
_Eng.pdf. 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
Merchant's 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 (A)(5)(a)), 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 (A)(5)(a)),
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
(A)(5)(a)), 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 Merchant's agent to collect
Transaction amounts from the Customer, the Issuer
or the Customer's financial institution.
i) Deposits. Merchant agrees that the Agreement
is a contract of financial accommodation within
the meaning of the Bankruptcy Code, I 1 U.S.C.
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 Elavon's and Member's
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
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 did 03.29.11 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
Merchant's 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 of Merchant's 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 forty-eight (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 Elavon's receipt of a written
notice from Merchant to reflect in its system any
change to Merchant's DDA.
d) Depository Institution. Merchant authorizes its
depository institution to grant Elavon and/or
Member access to any and all information or records
regarding the DDA reasonably requested by Elavon
and/or 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 Merchant's
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.
Merchant's 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 Elavon's
receipt of Merchant's 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 SET-OFF.
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
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.l 1.01.10 dtd 03.29.1 I FINAL
four] multiplied by [average monthly
processing volume] plus [one month's average
fees] plus days delayed delivery multiplied
by the average day's processing volume]. For
purposes of this calculation, the number of days
delayed delivery means the number of days
between the date on which the Cardholder's
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 Merchant's 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 Merchant's
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) Elavon's 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 Merchant's
financial condition, (g) assignment of the
Agreement by Merchant in violation of
Section 15(e), and (h) revocation,
termination or non-renewal 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;
and/or
(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 Haven's fees. Also,
Elavon or Member may debit the Reserve
Account to exercise their rights under the
Agreement including, without limitation, their
rights of set-off 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 Elavon's 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 and/or 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 and/or 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 Set-off. Elavon and Member
have the right of recoupment and set-off. This
means that they may offset any outstanding or
uncollected amounts owed to them hereunder
(except for Elavon's fees, which are provided for in
Section 5(a)) 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
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 M 03.29.1 l FINAL
Bankruptcy Code Section 362 to Elavon and/or
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 form(s) or
schedules provided by Elavon and Member in
writing to Merchant. Such fees will be calculated
once each month for the previous month's 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 Merchant's 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 Elavon's or
Member's 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 Merchant's
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 Merchant's 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 365-day 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
tax-exempt 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 Elavon's and
Member's willingness to provide these services is
based on the liability limitations contained in the
Agreement. Therefore, in addition to greater
limitations on Elavon's or Member's 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
E1d o n
(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 dtd 03.29.1 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 of the 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 Merchant's
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 and/or 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 Merchant's
knowledge, threatened that would reasonably
be expected to materially impair Merchant's
ability to carry on Merchant's business
substantially as now conducted or which would
materially and adversely affect Merchant's
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 Merchant's
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 Merchant's officers, directors,
employees, agents, Value Added Servicers,
business invitees, and those of any other Person
who, with or without Merchant's consent or
cooperation, obtains access to information
related to Transactions from Merchant or access
to systems under Merchant's control, but
excluding all actions or failures to act to the
extent attributable to Elavon's or Member's
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:
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Elavon
(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 dtd 03.29.11 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
and/or 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 Elavon's or
Member's knowledge threatened, which if
decided adversely would impair Elavon's or
Member's ability to carry on their business
substantially as now conducted or which would
adversely affect Elavon's or Member's
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
Elavon's 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
Merchant's 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 Merchant's actions or omissions,
Merchant authorizes Elavon and Member to
perform an audit or inspection of Merchant's
operations to confirm compliance with the
Agreement upon reasonable advance notice and
at Elavon's or Member's 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 Merchant's
obligations under Section 13(e)(i), 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 Merchant's business
at Merchant's expense. Merchant acknowledges
and agrees that the Payment Networks have the
right to audit Merchant's 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 Elavon's or Member's
business; (D) collected, used and disclosed as
required or permitted by Law (e.g., for tax
reporting or in response to a subpoena); and (E)
retained for such periods of time as required by
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Haven and Member to perform their
obligations and exercise their rights under the
Agreement.
c) Customer Identification. To help the government
fight the funding of terrorism 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 Merchant's
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 (e.g.,
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 Merchant's or
Elavon's or Member's systems. Elavon is under no
duty to recreate lost Transactions or Transaction
Receipts unless such loss results from Elavon's
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 of their 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 of the 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 Merchant's financial
condition.
(2) The garnishment or attachment of
Merchant's deposit accounts with
Member, Alternate Security, the DDA,
the Reserve Account, or any of
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Merchant's property in the possession
of Elavon 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 Merchant's
violation of Elavon's or Member's
underwriting policy.
(7) Assignment of the Agreement or a
change in control of Merchant without
Elavon's 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 Merchant's account with
Elavon may take up to thirty (30) days
following Elavon's receipt of written notice of
termination. In those limited instances where
Merchant's account is reinstated by Elavon
following termination by either Merchant or
Elavon in the Term, all of Merchant's
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 Merchant's equipment is leased,
Merchant is obligated to honor the terms and
conditions of Merchant's leasing contract. If
Merchant's 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 Merchant's compliance
with this provision.
b) Privacy Laws. In addition to Section (A)(14)(b),
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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limitation the federal Health Insurance Portability
and Accountability Act, the federal Gramm-Leach-
Bliley Act, FACTA or other applicable privacy
laws.
c) MATCHT5 1 and Consortium Merchant Negative
File. Merchant acknowledges that Member and/or
Elavon is required to report Merchant's business
name and the name of Merchant's principals to the
MATCH TM 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 Elavon's and Member's 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
Customer's account. Merchant must notify
Elavon and Member within twenty-four (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, Merchant's Agents or systems
within Merchant's or its agent's 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
Merchant's 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 seventy-two (72) hours of becoming
aware of the Data Incident, Merchant must
engage the services of a data security firm
acceptable to the Payment Networks and/or 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 and/or 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 and/or of Elavon and
Member. If Merchant fails to supply the
forensic audits or other information required by
the Payment Networks and/or by Elavon and
Member, Merchant will allow Elavon or
Member to perfonn or have performed such
audits at Merchant's 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 Merchant's
ability to prevent future data incidents in a
manner consistent with the Agreement.
iii) Liability for Data Incident. Without waiving
any of Elavon's and Member's 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 and/or assessments by the Payment
Networks, claims from third parties, all costs
related to the notification of Cardholders or
Customers and cancellation, re-issuance 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 Elavon's 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. Merchant's
right to use all such marks will terminate upon
termination of the Agreement or upon notice by a
Payment Network to discontinue such use.
Merchant's use of promotional materials provided
by the Payment Networks will not indicate, directly
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(City ofDenton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 dtd 0319.11 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 Merchant's 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 CVV2/CVC2/CID data after
authorization for any purpose, including record
keeping or additional authorization processing.
ii) Bankruptcy. In the event of failure or other
suspension of Merchant's 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 party's
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 party's 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 non-disclosure
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 Elavon's 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
Elavon's 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
Party's possession or in the possession of its agents
and/or 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 Party's 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 Party's discretion,
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.l 1.01.10 did 03.29.11 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 and/or 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 and/or
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
Elavon's 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 Elavon's 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 Merchant's 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 Merchant's bankruptcy.
h) Customer Contact. Merchant authorizes Elavon
and Member to contact Merchant's 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 Elavon's 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
and/or services by facsimile, telephone, mobile
telephone and/or 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
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 dtd 03.29.11 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 15(b) 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 arbitrator(s), 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 of the Agreement.
18) Alternate Security: The security described in Section
(A)(4)(b)(vi).
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 of the assets, domestic or
foreign, of such Person or any other similar
conservatorship or receivership proceeding instituted or
administered by any regulatory agency or body.
23) Card Not Present: The processing environment where
the Payment Device is not physically presented to the
13
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 did 03 29.11 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 Cardholder's account: card
number, Cardholder name (if applicable), card account
activity, Cardholder account balance, and/or such other
data applicable to the Merchant's 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, "know-how,"
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 symbol(s) of Visa U.S.A., Inc. or Visa
International, Inc. (including Visa Gold cards); (ii) a
MasterCard card or other card or device bearing the
symbol(s) of MasterCard International Incorporated
(including MasterCard Gold cards); (iii) a Discover
Network card or other card or device bearing the
symbol(s) 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 and/or
Member to authorize, capture, and/or settle Transactions
effected with Credit Cards or signature-based Debit
Cards issued or sponsored by such organization or
association, and any successor organization or
association to any of the 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 symbol(s) 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 Cardholder's 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 signature-based, offline debit
Transactions; and (ii) a card or device that bears the
symbol of an EFT Network and can be used to conduct
PIN-based, 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 and/or 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
U.S.A., Inc., STAR Networks, Inc., NYCE Payments
Network, LLC, PULSE Network LLC,
14
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(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.l 1.01.10 dtd 03.29.11 FINAL
ACCEL/Exchange 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 and/or Member to authorize, capture,
and/or 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 and/or Retrieval
Requests in excess of one percent (1%) of the gross
dollar amount of Merchant's Transactions or returns in
excess of two and one-half percent (2.5%) 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 Order/Telephone Order (MO/TO) 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 Merchant's
business that is submitted to Elavon and Member in
connection with Merchant's application for Processing
Services, including documents submitted by Merchant
as a part of the bid process, if applicable.
57) Merchant Operating Guide (MOG): Elavon's
operating manual that prescribes rules and procedures
governing Transactions and Merchant's 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) NACHA-The 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 of the 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 point-of-sale
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 of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 dtd 03.29.1 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 (A)(4).
67) Reserve Amount: The amount established pursuant to
the calculation set forth in Section (A)(4).
68) Reserve Event: The events designated in Section
(A)(4).
69) Retrieval Request: A request initiated by a Cardholder
or Issuer that requires the Merchant to produce a legible
copy of the Cardholder's 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 Cardholder's account (e.g., 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 Elavon's obligations under
the Agreement.
75) Visa: Visa U.S.A., Inc.
16
Ela n
(City of Denton, TX) PAYMENT DEVICE PROCESSING AGREEMENT v.11.01.10 dtd 03.29.11 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
PIN-Debit
Checks
EBT
Other
Total
Account Set-Up & 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
$
16,250,614
$
189.32
$
11,292,799
$
189.32
$
586,305
$
189.32
$
24,457,592
$
189.32
$
$
s2,bd/,s111
Waived
Waived
Waived
$ 5.00
Pass through
Waived
Quote
Waived
Waived
85,837
59,649
0
0
0
3,097
129,187
0
0
Per Unit
277,769
III. CARD PROCESSING FEES
Pricing Type: Pass-Through
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
PIN-Debit
Auth Fen (M Settle Fee (t) Settle Fee (°/a)
$
$
0.1200%
$
$
0.1200%
$
0.1200%
$
$
0.1200%
Interchange, assessments, and
MasterCard, and Discover settled volume.
Servicer may adjust Merchant's pricing if (i) Merchant's annualized Visa/MasterCard/Discover average ticket or volume falls below projections by more
than twenty percent (20%), or (ii) Merchant's Visa/MasterCard/Discover average ticket or volume for any month falls below fifty percent (50%) of such
Visa/MasterCard/Discover average ticket or volume for any month falls below fifty percent (50%) of such Visa/MasterCard/Discover 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
Operator-Assist Authorization
Bank Referral Authorization
Other Auth Fees
V. OTHER TRANSACTION FEES & SERVICES
ELAVON PROPRIETARY & CONFIDENTIAL Page 1 of 4 Schedule Printed On: 7:02 PM 3/29/2011
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
2-5 Users
6-10 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. Equipment/Software
$ 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 $35/unit swap fee for the shipping and handling of the
replacement equipment. After the first year, 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 Schedule Printed On: 7:02 PM 3/2912011
SCHEDULE A - SCHEDULE OF FEES
VII. VALUE ADDED PRODUCTS
Electronic Check Service
Service Level and Processing Fees:
Conversion with Guarantee***
Guarantee Rate 2.200% Per Transaction $ 0.180
Conversion with Verification
Per Transaction* $ 0.150
Conversion with Verification and Collections**
Per Transaction* $ 0,150
Conversion Only
Per Transaction* $ 0.150
Conversion Only with Collections**
Per Transaction* $ 0.150
Combination Service (Select any two)
Conversion with Guarantee***
Transactions from 0
Guarantee Rate 2.200%
Conversion with Verification
Transactions from 0
Per Transaction* $ 0.150
Conversion Only
Transactions from 0
Per Transaction* F$_
Returns Management***
to 2,500
Per Transaction $ 0.180
to 2,500
to 0
Per Returned Item $ 3.000
*The Per Transaction fee applies to the original ECS transaction, voids/reversals, declines, and to any resubmissions of returned Items.
**Collections service options are not available for 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 then-current 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 non-compliance 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,
http://Pci.elavon.com, 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 of years in
Initial Term, multiplied by a factor of one hundredth (n_Dl), 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 of 4 Schedule Printed On: 7:02 PM 3/29/2011
n Q D ~ SCHEDULE A - SCHEDULE OF FEES
Name: C12xq ` o bd D 1
Title:
ELAVON PROPRIETARY & CONFIDENTIAL Page 4 of 4 Schedule Printed On: 7:02 PM 3/29/2011
Ela on
SCHEDULE B
AFFTT,TATED ENTITIES
Check one:
Elavon Payment Device Processing Agreement (v.11.01.10)
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 affiliate(s) (a
separate Form W-9 or Form W-8BEN, 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
_ Y.
7!::LL
By 1-' _ j Name: f,r, o r~ /L
Name: C-1 0) M
_ 1
Title: Q '!1~ Title: Je oe
Date: 1 Y
(Schedule ffective Date")
MEMBE
BY,
Name: /Y In 7-,VV
Title: J 10~oA- ~/<c P eS"6e-,&,I
Schedule B
Merchant Application (Large Relationship) USA
Merchant/Corporate Name (as described in the Agreement- individual DBA's will be obtained
Primary Website:
during the implementation phase):
www.cityofdenton.com
City of Denton
- contact: Antonio Puente
Phone Number: (940) 349-7283 Ext.
- Address: 215 E. McKinney Use a Physical Street Address -NO P.O. BOX
Address2:
Federal Tax ID:
Incorporation Data:
St
t
a
e
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.
❑ U.S. Bank National Association
❑ Key Bank, National Association (if selected, then all references to Elavon in the Agreement shall mean Key Merchant Services, LLC, a joint 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 ❑ Public/Private Consortium
Type` ❑ College/University ❑ Health Care ❑ Religious ❑ Non-Profit Charitable or Social
Mark all that apply ❑ Other (ASSn/EState/TrUSt)
Tax Exempt: ❑ NO ® YES (if YES, State Tax Exempt documentation will be required for each Entity and State where a location processes)
The financial statements provided by Merchant must be in the name of the entity identified above.
If the financial statements are in the name of another entity, then additional underwriting requirements will apply.
Financials: ❑ Publicly Traded (symbol ) ® Govemment(Institutional Organization (Ironline, provide website: )
(notation required) ❑ Private (3rd Party Audited required) ❑ Bank Provided
Description of Product/Services - please be specific:
Government and utility services
® Retail 40% ❑ Restaurant 0% ❑ Lodging 0% ❑ Pay at Pump 0%
Processing
Environment(s): ® Mail Order 10% ❑ Telephone Order 0% ❑ Supermarket 0%
-Total must equal 100%
® Internet 50% Transactions accepted through a website requires that specific security/policy requirements be met in order to process.
Card Types:
Merchant shall determine in accordance with the Payment Network Regulations which type(s) 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:
Solution(s):
(mark all that apply) ❑Elavon Software - Elavon Certified: El YES 13 ce t Pending El NO (List other Network)
ADVANCED DEPOSIT PROGRAM ELECTION I ❑ DO elect to participate in the Advance Deposit Service Program
THIS IS LIMITED TO HOSPITALITY MCC'S ❑ DO NOT
(Checking Accounts only) Submission of bank documentation is required for all DDAs submitted, and we may confirm any data directly with the bank.
Primary Bank: (locations may be different and will be
I
Primary Bank Contact Name:
Primary Bank Contact Phone:
- at the mid level)
captured
Primary ABA/Routing # 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. and Member 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 of Merchant,
_ and (ii) the person signing this Merchant Application,' authorized to bind Merchant to all provisions of the Agreement.
MERCHAN l
By: Date: 5 3 I
Name: 0Q/Y\ /Jd Title: 1 1' ~►~l~ Cr
PRINT PRINT
-1-
Merchant App Large Relationship (USA v 02.10.11)
Ela on
(City of Denton, TX) SCHEDULE E v11.01.10 dtd 03.22.11 FINAL
SCHEDULE E
ECS SERVICES
This Schedule E supplements, is made a part of and is subject to the terms and conditions of the 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 of Purchase entries
2 Back Office Conversion entries
3 Account Receivable Conversion entries
*A separate collections agreement is required.
Image Options (check one):
® POS with Image
❑ Cash Office Image (COI)
❑ Centralized/Enterprise Image (CI)
❑ Outsourced Image (OI)
❑ Not Applicable - ACH Processing
❑ Schedule E-1, ECS Additional Services Supplement
❑ Exhibit A to Schedule E-1, Fees for Additional ECS Services
❑ Exhibit B to Schedule E-1, Hold Check Agreement
❑ ACH Processing with Verification (check all that apply):
❑ Internet-Initiated Entries (WEB/CCD)
❑ IVR-Initiated Entries (TEL/CCD)
❑ Customer Service-Initiated Entries (TEL/CCD)
❑ Recurring Entries (WEB/PPD/CCD)
❑ ACH Processing Only (check all that apply):
❑ Internet-Initiated Entries (WEB/CCD)
❑ IVR-Initiated Entries (TEL/CCD)
❑ Customer Service-Initiated Entries (TEL/CCD)
❑ Recurring Entries (WEB/PPD/CCD)
*Entries drawn on business accounts must be classified as CCD (Corporate Credit or Debit
regardless of initiation channel.
Deliverv Method (check all that aDDlv):
❑ Visa Online
® EnCircle Direct 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: /imo7-6L,,Z 1 • /Y)i IIPR-
Name: e COWI't Title: r eS /4e +t
Title: 1~4 Date:
(Schedule "Effective Date")
MEMBE
By:
Name: 11,n err y d , I&&
Title: 1PPN1D/L ~/r /BPS /Ae,c
Schedule 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 state(s), 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
https://www.merchantconnect.com/CV,TRWeb/Electro
nicCheckService.do.
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 Reader/Imager 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 of Denton, TX) SCHEDULE E v11.01.10 dtd 03.22.11 FINAL
Elavon, that (i) the Customer has duly authorized the
debiting or crediting of the Customer's 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
Merchant's 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 Merchant's non-
compliance with Laws or the ECS Rules. Merchant
agrees to immediately pay to Elavon or its agent (by
means of debit or set-off 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 of the 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 Merchant's submission of
an Item or a Transaction for ECS processing.
a) Merchant acknowledges Visa's 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 Merchant's
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 Customer-present
Transaction where the Customer was not present
at the point of sale or Merchant accepts
previously voided Paper Checks, (D) repeated
Schedule E
MA O'&
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, driver's 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
of care as Merchant would protect its own confidential
and proprietary information and as further specified in
the Agreement.
16) Merchant's 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 Merchant's directions in submitting or
resubmitting any Item for processing. Further,
Merchant assumes full responsibility for the alteration
of any Item made at Merchant's 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 v11.01.10 dtd 03.22.11 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
Merchant's 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 Merchant's obligations,
representations and warranties under the Agreement or
this Schedule.
23) Check Reader/Imager: A device certified by Elavon
that electronically captures the MICR line and/or an
image of the Paper Check.
24) Check Replacement Document: A Demand Draft,
Photo-In-Lieu, or Substitute Check.
25) Demand Draft: A negotiable instrument drawn on the
Customer's checking account that is created from
transaction data included in an Item and that does not
bear the Customer's 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
Ela o
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 Reader/Imager, 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
Customer's checking account, including the ABA
Routing Number and checking account number.
31) Paper Check: A Customer's paper check presented to
Merchant for payment to the Merchant, which check
will serve as the source document for Items.
32) Photo-In-Lieu: 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: Visa's 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 of Denton, TX) SCHEDULE E v11.01.10 dtd 03.22.11 FINAL
Schedule E
ElavOn (City of Denton, TX) SCHEDULE I v.03.18.11 dtd 03.29.11 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 ent{the By: V-
"MERCHA"):
Name: 6/" 07-M $e • I/elf-
By:
_ f Title: 19.w/p - Ui ~E PS /b e c -
Name: C- 4 Y~ I
Date: -i
Title: (Schedule I "Effective Date")
MEMBE
By:
Name: r i/ m,r2 ZM1 ,z n~~`~~K /
Title: .rex Q,9 X,
Schedule l
Eldon (City of Denton, TX) SCHEDULE I v.03.18.11 dtd 03.29. 11 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 this"Agreement. 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 (A)(6)(b)(ii) Elavon Responsibilities. is
a) Section (A)(4)(a)(i) Security Agreement. is
revised to read as follows:
deleted.
"ii) Elavon Responsibilities. Elavon will be
b) Section (A)(4)(a)(ii) Perfection. is deleted,
responsible for and will at its own expense defend
c) Section (A)(6)(a) Accuracy of Information. is
itself against any suits, claims, losses, demands or
revised to read as follows:
damages arising out of (A) Elavon's breach of the
"a) Accuracy of Information. Merchant must
Agreement, or (B) Elavon's negligence, gross
promptly notify Elavon in writing of any material
negligence or willful misconduct."
changes to the information provided in the
f) Section (A)(8)(b)(ii) 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 and/or payments accepted, and how
Merchant will provide financial statements from
Transactions are completed (e.g., 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
Merchant's place of business). 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 of the 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 Merchant's
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 (A)(11)(a) 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
Merchant's business information. Merchant may
fully compliant with all Laws and Payment
request written confirmation of Elavon's consent
Network Regulations. Any Value Added Servicer
to the changes to the Merchant's business
used by Merchant must be registered with the
information."
Payment Networks prior to the performance of
d) Section (A)(6)(b)(i) 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
of its 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 Merchant's use of any Value
Elavon (City of Denton, TX) SCHEDULE I v.03.18.11 dtd 03.29.11 FINAL
Added Servicer. Neither Elavon nor Member is
arise from Merchant's 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 (A)(15)(b) Jurisdiction and Venue;
receives data for the Transaction in the format
Governing Law. is deleted.
required by Elavon.
1) Section (A)(15)(c) Exclusivity. is deleted.
h) Section (A)(12)(d)(iii) Early Termination Fee.
3) In addition to the termination rights set forth in
[DELETED]
Section (A)(12)(b)(i) of the Agreement, Merchant
i) Section (A)(13)(d) Security Program
shall have the following termination right added to the
Compliance. is revised to read as follows:
Agreement as Section (A)(12)(b)(i)(C):
"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 (A)(5)(a), Fees, of the
or replacements of such 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
(A)(5)(a), 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 (A)(5)(a) Fees. Notwithstanding any
with the requirements of those Security Programs.
provisions of Section (A)(3)(b) or Section
Merchant, and not Elavon or Member, is
(A)(3)(c) to the contrary, with respect to the
responsible for Merchant's own actions or
collection of fees by Elavon and Member,
inactions, those of Merchant's 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,
"Merchant's Agents"). Merchant shall be
any amendment to Schedule A and any additional
responsible for any liability, loss, cost, or expense
application or setup form(s) 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
Merchant's Agents."
previous month's activity. Elavon will send
j) Section (A)(14)(c) 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
Merchant's compensating balance calculation.
from Elavon to access any of Elavon's databases
Member will pay Elavon such amount, on
or services, Merchant will: (i) keep the password
Merchant's 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
Elavon's 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 Elavon's databases or
(A)(5)(a), Fees, of the Agreement is hereby replaced
services or Merchant's information has been
with the following provision:
compromised by use of the password. If Merchant
a) Section (A)(5)(a) Fees. Notwithstanding any
receives passwords from a third party for products
provisions of Section (A)(3)(b) or Section
or services related to Transaction processing,
(A)(3)(c) 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 of business for services, supplies,
and equipment in accordance with Schedule A,
Ela on (City of Denton, TX) SCHEDULE I v.03.18.11 dtd 03.29.11 FINAL
any amendment to Schedule A and any additional
application or setup form(s) 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 month's
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
of the 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
Merchant's financial obligations are fully
satisfied.
7) Invoice Fee Collection Model. If Merchant elects the
Invoice fee collection model on page 1 of this
Schedule I, Section (A)(5)(a), Fees, of the Agreement
is hereby replaced with the following provision:
a) Section (A)(5)(a) Fees. Notwithstanding any
provisions of Section (A)(3)(b) or Section
(A)(3)(c) 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 form(s) provided by Elavon
and Member in writing to Merchant. Such fees
will be calculated once each month for the
previous month's 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 - Government/Public Institution Service Fees
8) Government/Public Institution Service Fees.
Merchant will not charge either a Convenience Fee or
a Government/Public Institution Service Fees without
execution of additional Schedules as necessary.