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HomeMy WebLinkAboutC04-406 Official Payments CorporationG~-~D1~-45 ELECTRONIC CHECK PAYMENT' PROCESSING AGREEMENT This Electronic Check Payment Processing Agreement, including its exhibits, ("AgreerienY') is made and entered to by and between Official Payments Corporation, a Delaware corporation ("OPC"), and EagIE County, Colorado ("Agency'). OPC offers electronic check payment and processing transaction services through an Internet intertace over the web, and if authorized in writing by OPC, an interactive telephone voice response system ("IVR"}. Agency collects taxes, fines, fees and/or other types of monetary obligations from individuals and/or entities subject to its jurisdiction. Agency desires to permit payment ~if amounts owed to it by means of electronic transactions through tl~a OPC System and to have OPC perform certain rely t•~;d services as described below. Agreement 1. DEFINITIONS. "Agency Designated Account' means the direct deposit/debit account(s) established and maintained by Agency at an ACH receiving depository institution reasonably acceptable to OPC for payment of Citizen obligations and debit of Chargebacks, Return Transactions, fines and fees. Agency Designated Account is further described in Section 4.2. "Agency Payment' means any payment that is owed by a Citizen to Agency and paid through a Payment Transaction. "ChargebacK' means the reversal of a Payment Transaction previously credited to an Agency Designated Account. "Citizen" means the person, business or entity who initiates and makes payment of the Agency Payment and Convenience Fee through a Payment Transaction. "Co- Brand" means an electronic transaction containing payment and identification data which is initiated by the Citizen on the Agency website, then transferred to an OPC web page where the Citizen completes the transaction and is provided with a confirmation of the Payment Transaction. "Co-Brand Plus" means an electronic transaction containing payment and identification data which is initiated by the Citizen on the Agency website, then transferred to an OPC web page where the Citizen completes the transaction. The Citizen is subsequently transferred back to the Agency web site along with confirmation of the Payment Transaction. "Convenience Fee" means the fee charged to a Citizen by OPC for the convenience of Citizen making Agency Payments by use of the Services. The convenience fee schedule is set forth in Exhibit A. "OPC Designated Account' means the direct deposit account(s) set up by OPC to receive payment of Convenience Fees, and any other fees owed to OPC. "OPC System" means OPC's and its Suppliers' electronic payment processing system including but not limited to its technology, hardware, software and equipment. "Payment Transaction" means an electronic payment transaction initiated by a Citizen at the OPC or Agency website or IVR, as applicable, and processed by OPC and its Suppliers under this Agreement. "RepresentmenY' means a Return Transaction that was due to insufficient or uncollected funds that has been represented to Citizen's depository financial institution at the request of the Agency. "Return Transaction" means a Payment Transaction that is unable to be processed by a Citizen's depository financial institution. "Return Transaction Fee" means the fee charged to Agency pursuant to Section 4.1 and Exhibit A. "Services" means the services provided by OPC and its Suppliers pursuant to this Agreement inclusive of payment and electronic funds transfer which enable Payment Transactions to be processed. "Simple Transaction Processor" (STP) means an electronic transaction and return confirmation containing payment and identification data, initiated and received by the Citizen on the Agency website, without a link or transfer to an OPC web page. C'~" 'Proprietary and Confidennrr! Pnge l l I/l i/2004 "Suppliers" means OPG authorized vendors including, but not limited to, ACH processors}. 2. PROVISION OF SERVICES. As part of the Services, OPC shall: 2.1 Provide Citizens with the opportunity to make Agency Payments by electronic check through an Internet interface, and if authorized in writing by OPC, through an IVR system. 2.2 Pr~.vide real time processing of electronic check transactions, validate the bank transit routing number, validate the ACH et~~,ibility of the bank transit routing, determine that the dollar amount is below or equal to the maximum and above or es~:~ai to the minimum specified by the Agency, validate checking account number for structure and validity and check again; t a negative file in an established proprietary database. 2.3 Create a transaction file and forward Payment Transactions to the Automated Clearing House (ACH), electronically debiting the Citizens bank account and crediting the Agency Designated Account. 2.4 Provide Agency with the option of choosing a settlement method for their funds to the Agency Designated Account either (i) within 48 hours after completion of the Payment Transaction (this option requires a 2:30 PM Pacific Time cutoff, (ii) within 72 hours after completion of the Payment Transaction, or (iii) by delayed settlement which occurs no later than eight business days after completion of the Payment Transaction. Settlement of funds under the 48-hour and 72 hour settlement methods (subsection (i) and (ii), respectively) will include all authorized Payment Transactions. Any Return Transactions will be subsequently debited directly from the Agency Designated Account. Under subsection (iii) delayed settlement method, Chargebacks are deducted prior to settlement of funds. 2.5 Confirm the dollar amount of each Agency Payment made by Citizens and the corresponding Convenience Fees to be electronically debited from the Citizen's designated demand deposit account, and obtain the Citizen's authorization (electronic or otherwise) of such transaction prior to initiating the transaction. 2.6 Provide the Citizen with electronic confirmation of the electronic check transaction and retain electronic check authorization logs and transaction records for such period of time as required by applicable law and the regulations of the National Automated Clearing House Association (°NACHA"). 2.7 Arrange for a unique check descriptor for the Agency Payment that references the name of the Agency and arrange for a separate unique check description for the Convenience Fee that references Official Payments and the nature of the fee. This description is used to identify payment transactions and the convenience fee on the Citizens bank statement. 2.8 Provide Agency with a daily report detailing Payment Transactions and Chargeback transactions. 2.9 During the implementation process, provide Agency with OPC's standard disclosures for Agency's incorporation into the system for all STP transactions. 3. AGENCY OBLIGATIONS. Agency shall comply with the following obligations: 3.1 STP Transactions. Agency understands that STP transactions take place on the Agency website without link to the OPC web page. Accordingly, Agency shall obtain and retain all records related to the initiation and authorization of transactions, including all digital (click-wrap) or written authorizations for OPC to collect andlor initiate transactions utilizing the OPC System. Digital (or, if applicable, written) copies of such records shall be delivered by Agency to OPC within fifteen (15) days of written request by OPC and shall otherwise be retained by Agency for a period of at least two (2) years following the date of the transaction. Agency shall be liable to OPC for any and al! liabilities, claims, costs, expenses, reimbursement obligations, fines and penalties which arise in connection with a failure to timely secure and produce such records, authorization agreements or receipts in accordance with applicable laws and regulations, inclusive of NACHA rules and regulations. Agency shall (i) incorporate the OPC standard disclaimers into its website, (ii) present such terms to each citizen for viewing, (iii) allow citizens to print the terms for their records, (iv) require the citizen's affirmative electronic or written agreement to the disclaimer terms prior to submitting the Payment Transaction, (v) keep written record of the citizen's agreement to the disclaimer terms. OPC may change its standard disclosures from time to time with written notice to Agency, and Agency shall incorporate such changes into the disclaimers within five (5) business days after its receipt of such changes from OPC. OPC Proprietnry nrrl Confidenhnl Pnge _7 11/15/2004 3.2 If Agency is using Co-Brand, CaBrand Plus, or STP application, Agency shall take all reasonable security precautions within its system, hardware and software to prevent unauthorized or fraudulent use of the OPC System by Agency, Agency employees and agents, and Citizens. OPC may, but shall not be required to, assign to Agency one or more identification numbers or passwords for Agency's use in obtaining the Services. Once such identification number(s) or password(s) have been delivered to Agency by OPC, the use and confidentiality of such numbers and/or passwords shall be the sole responsibility of Agency. 3.3 With respect to all Chargebacks the Agency must allow direct debiting of the Agency's Designated Account for the amount of Agency Payments previously settled into the Agency Designated Account. 3.4 Other than perm'tting OPC to charge the Convenience Fees in accordance with this Agreement, Agency will not impose any surcharge of penalty on electronic check transactions made by Citizens under this Agreement. 3.5 If Agency requests a customized reporting format, Agency shall provide OPC with its desired reporting format sufficiently in advance of the requested report delivery date. Customized reporting formats require OPC's prior written approval. 3.6 Agency will not require, as a condition to making an Agency Payment, that a Citizen agree in any way to waive such person's rights to dispute the transaction with their banking institution for legitimate reasons. 3.7 Subject to the restrictions of the section entitled "Intellectual Property'', Agency will actively promote the Services to its Citizens at its own expense. These promotions shall include publishing the relevant URL for the Official Payments Website and relevant telephone number (as applicable) on all tax instruction booklets, tax preparer communications, taxpayer information publications, citations and notices, and all related marketing materials. Agency will obtain OPC's consent prior to publishing any materials that reference the Services or OPC, and Agency agrees to incorporate all reasonable changes requested by OPC into any of the marketing materials to ensure (i) the correct usage of the OPC trademarks and logos, (ii) the accuracy of the content, and (iii) reasonably acceptable graphics and presentation. 3.8 Agency shall be solely responsible, at their own expense, for acquiring, installing and maintaining all of its own equipment, software and data communication service which is not a part of the OPC System. 3.9 Agency shall execute and deliver to OPC an ACH authorization agreement in the format provided by OPC to authorize electronic payments/debits to and/or from the Agency Designated Account, and any other certificates, instruments or documents as required by applicable laws and regulations in order to consummate the transactions intended under this Agreement. Agency will maintain and comply with applicable NACHA rules and regulations on behalf of itself, its employees, agents and Citizens. 4. FEES, TAXES, AND PAYMENTS. 4.1. Fees and Taxes. Agency shall pay OPC fees for Services in accordance with the rates set forth on Exhibit A ("Fee Schedule"), which is incorporated into this Agreement by reference. OPC will charge Citizens a Convenience Fee for each Payment Transaction. The Convenience Fee is non-refundable. The Convenience Fee is processed with the corresponding Agency Payment as a part of a unified transaction. Agency fees are calculated on a monthly basis and are debited from the Agency Designated Account monthly in arrears by OPC or its Suppliers. In the event that OPC incurs an increase in transaction processing fees, taxes or other increase in fees required by applicable law or government or association regulation during the term of this Agreement, OPC may pass through such charges to Agency. Agency fees are subject to change by OPC after the initial term, upon thirty (30) days prior notice to Agency. Agency shall pay to OPC, and during the term of this Agreement and for sixty (lid) days thereafter OPC (or its Suppliers) may debit from the Agency Designated Account, any other amounts owed by Agency under this Agreement, including, but not limited to, chargebacks, deposit charges, refunds, fines (inclusive of those imposed by NACHA), Returned Transaction Fees, ACH debits that overdraw the Agency Designated Account, and any other fines or liabilities incurred under this Agreement by Agency. Any fees and charges or other liabilities owed by Agency and not paid when due shalt bear interest of 1.5% per month until paid. 4.2 Aoency Designated Account. Agency will establish an Agency Designated Account prior to any Payment Transaction and shall maintain such account during the term of this Agreement and for at least 90 days after expiration or termination for any reason. Agency agrees to maintain sufficient funds in the Agency Designated Account to satisfy all fees, charges and other obligations of Agency under this Agreement. Agency authorizes OPC, its assignee or its Suppliers to debit via ACH transfer, the Designated Account for any such amounts Agency owes OPC under this Agreement. If the amount in the Agency Designated Account does not contain sufficient funds to cover fees and obligations of Agency, Agency agrees to pay OPC the amount it owes under this Agreement upon demand, together with OPC Proprietary nrrd Confidential Pnge 3 l ///5/2004 all costs and expenses incurred to collect that amount, including reasonable attorneys' fees. The authority granted by this Section shall survive the termination of this Agreement. 5. SUSPENSION; RESTRICTIONS. OPC may immediate{y suspend the Services or withhold Services or individual financial settlements in the event (i) OPC has reason to believe there has been or may be a breach of security, fraud, or misrepresentation in connection with the Services, (ii) continued provision of the Services would violate any applicable law, government regulation or the NACHA rules and regulations, or (iii) the financial status or credit quality of Agency is substantially diminished in the reasonable discretion of OPC. OPC will provide notice and opportunity to cure if practical, depending on the nature of the event causing the suspension. In the event of a suspension under this Section 5, OPC may require Agency to establish a reserve account or institute other mutually agreed restrictions prior to OPC restoring Services. OPC shall have no liability for any suspension in accordance with the terms of this Section 5. 6. TERM AND TERMINATION. ` 6.1. Term. This Agreement shall be effective upon the date of full execution and has an initial term of 2 years ("Initial Terrn"). This Agreement shall automatically renew for successive one year periods (a "Renewal Term°), unless either party provides written notification to the other party of its decision not to renew this Agreement no later than 90 days prior to the end of the then current term. 6.2_ Termination. 6.2.1 Termination For Cause. Either party may terminate this Agreement for cause in the event of a material breach by the other party, which breach is not cured within thirty (30) days after written notice of such breach is provided to the other party. 6.2.2 Termination By OPC. OPC may terminate this Agreement at any time upon written notice to the Agency in the event the provision of the Services hereunder is determined by Official Payments in its sole discretion to violate any statute, regulation, rule, order or operating procedure enacted or promulgated by a govemmentat or judicial authority of competent jurisdiction, NACHA (or any similar industry organization with authority over the Services), or in the event that any statute, regulation, rule, order or operating procedure is enacted or promulgated which effectively reduces or eliminates the fees charged by OPC. 6.2.3 Termination For Convenience. Either party may terminate this agreement for convenience upon 60 days prior written notice to the other party. 7. ACCOUNT MONITORING; SECURITY. OPC and its Suppliers may monitor the use of Services or Payment Transaction activity and investigate unusual or suspicious activity to the extent it is with reasonable discretion and in compliance with applicable laws and government regulations, provided, that in no event does OPC assume any responsibility to discover any possible breach of Agency's security or misuse of the Services. Agency and OPC shaft immediately notify the other if either discovers any breach of security. OPC shall have the right, at OPC's sole cost, to inspect Agency's operation, system and web site to verify Agency's compliance with its security obligations. Agency shalt be responsible for failure to use reasonable security precautions and for any fraud committed by its employees, representatives and Citizens as a result such failure in connection with the use of the Services. 8. INTELLECTUAL PROPERTY. In order that Agency may promote the Services and OPC's role in providing the Services, OPC grants to Agency a revocable, non-exclusive, non transferable, royalty-free license to use OPC's logo, trademarks and other service marks (the "OPC Marks") for such purpose only, in a form as approved by OPC. Agency does not have any other right, title, license or interest, express or implied, in and to any object code, software, hardware, OPC Marks, service mark, trade name, trade dress, formula, OPC System, know-how, telephone number, telephone line, domain name, URL, copyrighted image, text, script (including, without limitation, IVR or the OPC Website scripts) or other intellectual property right of OPC (collectively "OPC Intellectual Property"). All such OPC Intellectual Property, and all rights and title therein (other than rights expressly granted in this letter) are owned exclusively by OPC. Agency's license to use any OPC Marks shall terminate upon the earlier of (a) the effective date of termination or expiration of this Agreement, or (b) immediately, in the event of any breach of this section of the Agreement by Agency. Agency will not utilize any OPC Intellectual Property in any manner that would diminish its value or harm the reputation of OPC. Agency agrees that any use of the OPC Marks will conform to reasonable standards of acceptable use specified by OPC. 9. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. The parties shall comply with all applicable laws, rules and regulations of federal, state and local govemmentat authorities and governing industry associations, including without limitation, Federal Reserve Regulation E (12 C.F.R. Part 205), the rules of the NACHA, and all applicable privacy laws and regulations, all of which are incorporated herein by reference and made a part of this Agreement as if set forth in full herein. OPC may from time to time establish reasonable rules, regulations and operational guidelines with respect to use of the Services by Agency, and Agency agrees to be bound by OPC Proprielnry~ and Confidential Pnge 4 77/75/2004 and comply with such rules, regulations and guidelines thirty (30) ~1ays after delivery thereof to Agency, unless immediate compliance is required by law or regulation or otherwise agreed u pon in writing by the parties. 10. WARRANTY AND DISCLAIMER. 10.1 Warran Each party represents and warrants that it has the full legal right, authority and power to enter into this Agreement and perform its obligations hereunder and that the person who signs the Agreement for each party has full authorization to bind the respective party. Agency shall provide to OPC the standard set up form ("Agency Set Up Form") within ten (10) days of full execution of this Agreement. Agency represents and warrants to OPC that all information provided in such form is current, correct and complete. Agency agrees to notify OPC in writing of any changes to such Agency information within ten (10) days of such change. 10.2. Disclairner. OPC and its Suppliers are providers of the Services, not insurers, and as such, Agency acknowledges that data processing involves the inherent risk of human and machine errors, omissions, delays and losses including inadvertent loss or misstatement of data. OPC and its Suppliers do not, and cannot, control the flow of data to or from the OPC System, which depends in large part on the Internet and third parties, including without limitation connectivity/access providers. Accordingly, neither OPC nor its Suppliers warrant that the Services will be error free, uninterrupted, secure or virus free, and OPC and its Suppliers disclaim liability resulting from or related to such events. Except as expressly provided for herein, the Services are provided "AS IS° and "AS AVAILABLE", and OPC and its Suppliers make no other representations or warranties of any kind whatsoever, whether express or implied, by operation of law or otherwise, including, without limitation, any implied or statutory warranties of merchantability or fitness for particular purpose. 11. 1NDEMNIFiCATION. OPC shall indemnify, defend, and hold Agency harmless from any and all claims and suits for any loses, damages, or costs arising therefrom, including reasonable attorney's fees, alleged or asserted by a third party to the extent arising from the OPC's negligence or willful misconduct which results in (i} bodily injury, sickness, disease or death or (ii) any loss, damage or destruction of personal tangible property. This obligation is further conditioned on the indemnifying party receiving from the other party prompt written notification of any such claim and the other party cooperating fully with the indemnifying party in the defense of any such action. Nothing contained herein waives or is intended to waive any protections that may be applicable to the Agency under the Governmental Immunity Act, Section 24-10-101, et. Seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and other applicable laws. 12. LIMITATION OF LIABILITY. OPC OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA OR DAMAGES FROM LOSS OFUSE OR DELAY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER ARISING UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, CONTRACT, STRICT LIABILITY OR UNDER STATUTE), EVEN IF OPC HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS OR DAMAGE. OPUS TOTAL AGGREGATE LIABILITY FOR DAMAGES FOR ANY ACTION ASSOCIATED WITH THIS AGREEMENT OR THE SERVICES PROVIDED SHALL IN NO EVENT EXCEED THE AMOUNT OF THE CONVENIENCE FEE PAID TO OPC IN CONNECTION WITH THE PARTICULAR PAYMENT TRANSACTION GIVING RISE TO DAMAGES HEREUNDER. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. Agency acknowledges that without its agreement to the limitations contained herein, OPC would be compensated differently, and would charge Agency directly for Payment Transactions. Notwithstanding anything to the contrary contained herein, OPC shall not have any liability for delays in receipt or processing of Agency information or Payment Transactions due to causes beyond its reasonable control, including, without limitation, failures or limitations on the availability of third party telecommunications or other transmission facilities or Agency's or Citizen's failure to properly enter and/or transmit information. 13. CONFIDENTIALITY. The term "Confidential Information" shalt mean any and all information which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary, including but not limited to this Agreement and the terms, conditions and pricing contained herein, Agency and Citizen personally identifiable data, the OPC System, and OPC and Agency trade secrets, computer programs, software formulas, inventions, techniques, marketing plans, documentation strategies, and forecasts. Each party agrees that it will not make use of disseminate, or in any way disclose the other party's Confidential Information to any person, firm or business, except as authorized by this Agreement and limited to the extent necessary for performance of this Agreement. Each party agrees that it will disclose Confidential Information of the other party only to those of its employees and Suppliers who have a need to know such information and who have agreed to be bound by the non-disclosure terms and conditions of this Agreement prior to disclosure. Each OPC Proprretnry and Confidential Page S / 1/1 S/?004 With a copy to: General Counsel Official Payments Corporation , 10780 Park Ridge Blvd, 4t" Floor Reston, Virginia, 20191 Notices to Agency shall be sent to: 14.7 Force Maieure. Official Payments shall not be considered in breach of or in default of any of its obligations under this Agreement, and shall in no way be liable to the Agency hereunder, to the extent its performance hereunder is delayed, impaired or rendered impossible by acts of God, natural disasters, acts of tenor, war, riots, fire, storms, quarantine restrictions, floods, explosions, labor strikes, labor walkouts, extraordinary losses of utilities (including telecommunications services), external computer "hacke-" attacks, delays of common carriers or similar cause that are beyond OPC's reasonable control. 14.8 Survival. Any Section of this Agreement that logically survives the expiration or termination of this Agreement shall survive, including Sections 1, 3.1, 3.3, 4, 8, 11,12,13, and 14. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below. OFFICIAL PAYMENTS CORPORATION: AGENCY: EAGLE COUNTY, COLORADO By: By- Name: aYt~ Name: Title: n Title: l_i1~Y~Zrt'M-~~ ~ Date: c Date: ~ ~ A~PRO~D AS TO ~A Iw/- p ~~r.: ; f O L~~~G ~~~~ i Eagle county Attom~ s Office OPC Proprietary and Ca~fidenttal Pnge 7 ///1512004 Exhibit A Fee Schedule Convenience Fees to be charged to Citizen by OPC: ~_ peg each Payment Transaction less than or equal to $10,000.00 ~_ pe: each Payment Transaction greater than $10,000.00 Aaencv Fees to be charged to Aaencv by OPC: ~_ initial Agency set-up fee Please indicate Agency option choice: Option #7 Option #2 Aaencv Option #1: ~_ as a Returned Transaction Fee for each Retum Transaction. Option #1 does not include a Representment option. Aaencv Option #2: ~ as a Returned Transaction Fee for each initial Return Transaction. Option #2 includes one Representment. Initial here ~~~xc:r~-r. ~~~:v-~:~ rra~~ March 15, 2004 Eagle County, Colorado 500 Broadway PO Box 479 Eagle, CO 81631 Attention: Ms. Karen Sheaffer Re: Letter of Understanding for Services Ladies and Gentlemen: This letter confirms the terms agreed upon by Official Payments Corporation ("OPC'~ and Eagle County, CO ("Agency"), pursuant to which OPC will provide credit card payment services (the "Services") to individuals or entities ("Citizens") attempting to make the payments to Agency ("Agency Payments"}. A. OPC's Provision of the Services: OPC's shall provide the Services in accordance with the following guidelines: • OPC shall provide Citizens the opportunity to make Agency Payments by credit card and "pin-less" debit card through both an interactive telephone voice response system ("NR") and Internet interface (the "OPC Website", which together with the NR, shall constitute the "System"). • OPC shall, on behalf of Agency, collect and process Agency Payments from Citizens using the American Express Card, MasterCard®, VISA®, Discover® Card or other credit card mutually agreed upon by Agency and OPC (each, a "Card"). • OPC shall begin providing the Services to Citizens on a date to be mutually agreed upon by OPC and Agency. • OPC may charge Citizens a "convenience fee" for each Card transaction processed (the "Convenience Fee"), to be collected in addition to the corresponding Agency Payment as part of a unified Card transaction. A schedule of the Convenience Fees is attached to this letter as Exhibit A, and OPC may amend this schedule at any time upon prior written notice to Agency. • Except for any fees to be paid by Agency as set forth in Exhibit A, OPC shall not charge Agency a fee in consideration for OPC providing the Services to Citizens as contemplated by this letter. Enhancements to the Services or additional services not provided for in this letter, and any related fees payable by Agency in connection therewith, will be mutually agreed upon by OPC and Agency. With respect to all "reversed" and "chargeback" Card transactions that are substantiated by a Cardholder and approved by an authorized representative of OPC and the Agency: (i) the Agency authorizes OPC (or the respective Card organization) to debit the Agency's depository bank account previously designated by the Agency (the "Agency Bank Account"} for the amount of the corresponding Agency Payment and (ii) OPC shall refund to the Card organization (for credit back to the Cardholder) the corresponding Convenience Fees. The Agency agrees that it shall not refund in cash to a Citizen any Agency Payment made using Official Payments' services. • OPC shall forward Agency Payment transactions to the appropriate Card organizations for settlement to the Agency Bank Account. OPC shall retain all Convenience Fees collected by it hereunder. In the event that OPC is unable to collect all amounts owed by Agency hereunder through debiting the Agency Bank Account, Agency shall promptly pay all owed amounts to OPC in immediately available funds. • OPC will confirm the dollar amount of all a Citizen's Agency Payment and the corresponding convenience fees to be charged to his/her Card and obtain the Citizen's approval (electronic or otherwise) of such charges prior to initiating credit authorizations. • OPC will provide Citizens with electronic confirmation of Card transactions. • For authorization purposes, OPC will electronically transmit all Card transactions to the appropriate Card processing center, in real time as the transactions occur. • OPC will retain Card authorization logs and transaction records for such period of time as required by applicable law and the regulations of the respective Card organizations. • OPC will arrange for a unique line merchant descriptor for the Agency Payment that references the name of Agency and arrange for a separate unique line merchant description for the Convenience Fee that references Off cial Payments and the nature of the fee. • OPC will provide Agency with logos, graphics, and other appropriate marketing materials for Agency's use in its communications with Citizens. • OPC will provide Agency with reports sununarizing use of the Services by Citizens for a given reporting period. B. Agency's Obligations: In order for OPC to provide the Services as outlined in this letter, Agency will be required to comply with the following guidelines: • If required by the credit card organizations, Agency will enter into all applicable merchant Card agreements and fully adhere to the rules, regulations and operating procedures of the various Card organizations, including without limitation, with respect to the use of specific Card logos and marks. • Other than permitting OPC to charge the Convenience Fees in accordance with this Agreement, Agency will not impose any surcharge or other penalty on Card transactions made by Citizens for Agency Payments. • Agency will provide OPC with the electronic record specifications necessary for funds settlement and the posting of Agency Payment data related to the Card payments. • If applicable, Agency will provide OPC its desired reporting formats sufficiently in advance of the desired report delivery date. • Agency will provide to OPC all necessary documents and con-espondence in connection with chargeback transactions or other similar refund transactions. • Agency will establish a reasonable adjustment policy to accommodate adjustments that are required in the normal course of Agency's daily operations. • Agency will not require, as a condition to making an Agency Payment, that a Cardholder agree in any way to waive such person's rights to dispute the transaction with the Card issuer for legitimate reasons. • Agency will promote the Services to its Citizens. These promotions shall include publishing the relevant telephone number and URL for the Official Payments Website on all tax instruction booklets, tax prepazer communications, taxpayer information publications, citations and notices, as applicable, and all related marketing materials. Agency will obtain OPC's consent prior to publishing any materials that reference the Services and/or OPC. C. Additional Matters • Confidentiality. Agency will not disclose to any third party or use for any purpose inconsistent with this letter any confidential or proprietary non-public information it obtains during the term of this Agreement about OPC's business, operations, fmancial condition, technology, systems, know-how, products, services, suppliers, customers, marketing data, plans and models and personnel. OPC will not disclose to any third party or use for any purpose inconsistent with this letter any confidential Citizen information it receives in connection with its performance of the Services, except that OPC may use (1) such information for collection and other purposes as would be permitted for federal tax information under §6311-2T of 26 CFR Part 301; (2) personal information provided by Citizens to establish and maintain individual user accounts requested to be established by such Citizens with OPC; and (3) aggregated transaction data and 1VR and OPC Website traffic information for marketing and public company reporting purposes. • Intellectual Property. In order that Agency may promote the Services and OPC's role in -providing the Services, OPC grants to Agency a revocable, non-exclusive, royalty-free license to use OPC's logo and other service marks (the "OPC Mazks'~ for such purpose only. Agency does not have any other right, title, license or interest, express or implied, in and to any object code, software, hardware, trademark, service mark, trade name, trade dress, formula, system, know-how, telephone number, telephone line, domain name, URL, copyrighted image, text, script (including, without limitation, any script used by OPC on the NR or the OPC Website) or other intellectual property right of OPC. All Marks and the System and all rights therein (other than rights expressly granted in this letter) and goodwill pertain thereto belong exclusively to OPC. Force Mateure. OPC will be excused from performing the Services as contemplated by this letter to the extent its performance is delayed, impaired or rendered impossible by acts of God or other events that are beyond OPC's reasonable control and without its fault or judgment, including without limitation, acts of God, natural disasters, war, terrorist acts, riots, acts of a governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine restrictions, floods, explosions, labor strikes, labor walkouts, extraordinary losses of utilities (including telecommunications services), external computer "hacker" attacks and/or delays of common carriers. • Remedies. Agency's and OPC's sole remedy in the event of OPC's failure to perform the Services in accordance with the guidelines set forth herein shall be to terminate the arrangement contemplated by this letter_ • Term of Arran ement. The arrangement contemplated by this letter shall continue from the date of this letter until 10 days after such time as either OPC or Agency has notified the other party in writing of its decision to terminate this arrangement. • The rights herein contracted for shall inure solely to the benefit of the parties to this Letter of Understanding and nothing herein shall be construed to grant a cause of action to non-parties claiming as third party beneficiaries or otherwise. • This arrangement contemplated by this letter shall be construed under the laws of the State of Colorado. Venue is Eagle, Colorado. Any covenant, condition, or provision herein contained that is held to be invalid by any court of competent jurisdiction shall be considered deleted from this letter but such deletion shall in no way affect any other covenant, condition or provision herein contained so long as such deletion does not materially prejudice the Agency or OPC in their respective rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. • All amendments to this Agreement must be made in writing by mutual agreement of the parties, and no oral amendments shall be of any force or effect whatsoever. • This Letter of Understanding supersedes all previous communications, negotiations and/or contracts between the respective parties hereto, either verbal or written, and the same not contained herein are hereby withdrawn and annulled. • OPC shall indemnify, hold and defend the Agency and its officials, boards, officers, principals and employees, harmless from all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the negligent acts or omissions of, or representations by, OPC in the performance of this agreement. This indemnification shall not apply to claims by third parties against the Agency to the extent that the Agency is liable to such third party for such claim without regard to the involvement of OPC. Nothing contained herein waives or is intended to waive any protections that may be applicable to the Agency under the Governmental Immunity Act, Section 24-10-101, et. Seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and other applicable laws. We look forward to working with you on implementing a successful credit card payments program. Kindly confirm our mutual understanding as set forth in this letter and provide us necessary deposit instructions, by signing the Electronic Deposit Instructions sheet attached. If you have any questions or concerns, please do not hesitate to call me at 203-438-8600. ,{,. __ e .,~~_~; ATTEST : ~; , .~; ~ ~k Teak J . Simontq/n, Clerk ~' to the Board of County Commissioners Sincerely, OFFICIAL PAYMENTS CORPORATION By: J P Fleming Regional Account Manager COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: Tom C. Stone, irman ,~ f ""~ ~'ag{e Ccunty ?t?cr~;~~v'= ~J#fYC~`- ~~ March 15, 2004 Eagle County, Colorado 500 Broadway PO Box 479 Eagle, CO 81631 Attention: Ms. Karen Sheaffer Re: Letter of Understandine for Services Ladies and Gentlemen: This letter confirms the terms agreed upon by Official Payments Corporation ("OPC") and Eagle County, CO ("Agency"), pursuant to which OPC will provide credit card payment services (the "Services") to individuals or entities ("Citizens") attempting to make the payments to Agency ("Agency Payments"). A. OPC's Provision of the Services: OPC's shall provide the Services in accordance with the following guidelines: • OPC shall provide Citizens the opportunity to make Agency Payments by credit card and "pin-less" debit card through both an interactive telephone voice response system ("NR") and Internet interface (the "OPC Website", which together with the NR, shall constitute the "System"). OPC shall, on behalf of Agency, collect and process Agency Payments from Citizens using the American Express®Card, MasterCard®, VISA®, Discover® Card or other credit card mutually agreed upon by Agency and OPC (each, a "Card"). • OPC shall begin providing the Services to Citizens on a date to be mutually agreed upon by OPC and Agency. • OPC may charge Citizens a "convenience fee" for each Card transaction processed (the "Convenience Fee"), to be collected in addition to the corresponding Agency Payment as part of a unified Card transaction. A schedule of the Convenience Fees is attached to this letter as Exhibit A, and OPC may amend this schedule at any time upon prior written notice to Agency. • Except for any fees to be paid by Agency as set forth in Exhibit A, OPC shall not charge Agency a fee in consideration for OPC providing the Services to Citizens as contemplated by this letter. Enhancements to the Services or additional services not provided for in this letter, and any related fees payable by Agency in connection therewith, will be mutually agreed upon by OPC and Agency. 1 With respect to all "reversed" and "chargeback" Card transactions that are substantiated by a Cardholder and approved by an authorized representative of OPC and the Agency: (i) the Agency authorizes OPC (or the respective Card organization) to debit the Agency's depository bank account previously designated by the Agency (the "Agency Bank Account"} for the amount of the corresponding Agency Payment and (ii) OPC shall refund to the Card organization (for credit back to the Cardholder) the corresponding Convenience Fees. The Agency agrees that it shall not refund in cash to a Citizen any Agency Payment made using Official Payments' services. • OPC shall for« and Agency Payment transactions to the appropriate Card organizations for settlement to the Agency Bank Account. OPC shall retain all Convenience Fees collected by it hereunder. In the event that OPC is unable to collect all amounts owed by Agency hereunder through debiting the Agency Bank Account, Agency shall promptly pay ali owed amounts to OPC in immediately available funds. • OPC will confirm the dollar amount of all a Citizen's Agency Payment and the corresponding convenience fees to be charged to his/her Card and obtain the Citizen's approval (electronic or otherwise) of such charges prior to initiating credit authorizations. • OPC will provide Citizens with electronic confirmation of Card transactions. • For authorization purposes, OPC will electronically transmit all Card transactions to the appropriate Card-processing center, in real time as the transactions occur. • OPC will retain Card authorization logs and transaction records for such period of time as required by applicable law and the regulations of the respective Card organizations. • OPC will arrange for a unique line merchant descriptor for the Agency Payment that references the name of Agency and arrange for a separate unique line merchant description for the Convenience Fee that references Official Payments and the nature of the fee. • OPC will provide Agency with logos, graphics, and other appropriate marketing materials for Agency's use in its communications with Citizens. • OPC will provide Agency with reports summarizing use of the Services by Citizens for a given reporting period. B. Agency's Obligations: In order for OPC to provide the Services as outlined in this letter, Agency will be required to comply with the following guidelines: • If required by the credit card organizations, Agency will enter into all applicable merchant Card agreements and fully adhere to the rules, regulations and operating procedures of the various Card organizations, including without limitation, with respect to the use of specific Card logos and marks. • Other than permitting OPC to charge the Convenience Fees in accordance with this Agreement, Agency will not impose any surcharge or other penalty on Card transactions made by Citizens for Agency Payments. • Agency will provide OPC with the electronic record specifications necessary for funds settlement and the posting of Agency Payment data related to the Card payments. • If applicable, Agency will provide OPC its desired reporting formats sufficiently in advance of the desired report delivery date. • Agency will provide to OPC all necessary documents and correspondence in connection with chargeback transactions or other similar refund transactions. • Agency will establish a reasonable adjustment policy to accommodate adjustments that are required in the normal course of Agency's daily operations. • Agency will not require, as a condition to making an Agency Payment, that a Cardholder agree in any way to waive suci~ person's rights to dispute the transaction with the Card issuer for legitimate reasons. • Agency will promote the Services to its Citizens. These promotions shall include publishing the relevant telephone number and URL for the Official Payments Website on all tax instruction booklets, tax preparer communications, taxpayer information publications, citations and notices, as applicable, and all related marketing materials. Agency will obtain OPC's consent prior to publishing any materials that reference the Services and/or OPC. C. Additional Matters • Confidentiality. Agency will not disclose to any third party or use for any purpose inconsistent with this letter any confidential or proprietary non-public information it obtains during the term of this Agreement about OPC's business, operations, financial condition, technology, systems, know-how, products, services, suppliers, customers, marketing data, plans and models and personnel. OPC will not disclose to any third party or use for any purpose inconsistent with this letter any confidential Citizen information it receives in connection with its performance of the Services, except that OPC may use (1) such information for collection and other purposes as would be permitted for federal tax information under §6311-2T of 26 CFR Part 301; (2) personal information provided by Citizens to establish and maintain individual user accounts requested to be established by such Citizens with OPC; and (3) aggregated transaction data and NR and OPC Website traffic information for marketing and public company reporting purposes. • Intellectual Property. In order that Agency may promote the Services and OPC's role in providing the Services, OPC grants to Agency a revocable, non-exclusive, royalty-free license to use OPC's logo and other service marks (the "OPC Marks") for such purpose only. Agency does not have any other right, title, license or interest, express or implied, in and to any object code, software, hardware, trademark, service mark, trade name, trade dress, formula, system, know-how, telephone number, telephone line, domain name, URL, copyrighted image, text, script (including, without limitation, any script used by OPC on the NR or the OPC Website) or other intellectual property right of OPC. All Marks and the System and all rights therein (other than rights expressly granted in this letter) and goodwill pertain thereto belong exclusively to OPC. • Force Majeure. OPC will be excused from performing the Services as contemplated by this letter to the extent its performance is delayed, impaired or rendered impossible by acts of God or other events that are beyond OPC's reasonable control and without its fault or judgment, including without limitation, acts of God, natural disasters, war, terrorist acts, riots, acts of a governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine restrictions, floods, explosions, labor strikes, labor walkouts, extraordinary losses of utilities (including telecommunications services), external computer "hacker" attacks and/or delays of common carriers. • Remedies. Agency's and OPC's sole remedy in the event of OPC's failure to perform the Services in accordance with the guidelines set forth herein shall be to terminate the arrangement contemplated by this letter. • Term of Arrangement. The arrangement contemplated by this letter shall continue from the date of this letter until 10 days after such time as either OPC or Agency has notified the other party in writing of its decision tc~ terminate this arrangement. • The rights herein contracted for shall inure solely to the benefit of the parties to this Letter of Understanding and nothing herein shall be construed to grant a cause of action to non-parties claiming as third party beneficiaries or otherwise. • This arrangement contemplated by this letter shall be construed under the laws of the State of Colorado. Venue is Eagle, Colorado. Any covenant, condition, or provision herein contained that is held to be invalid by any court of competent jurisdiction shall be considered deleted from this letter but such deletion shall in no way affect any other covenant, condition or provision herein contained so long as such deletion does not materially prejudice the Agency or OPC in their respective rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement. • All amendments to this Agreement must be made in writing by mutual agreement of the parties, and no oral amendments shall be of any force or effect whatsoever. • This Letter of Understanding supersedes all previous communications, negotiations and/or contracts between the respective parties hereto, either verbal or written, and the same not contained herein are hereby withdrawn and annulled. • OPC shall indemnify, hold and defend the Agency and its officials, boards, officers, principals and employees, harmless from all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the negligent acts or omissions of, or representations by, OPC in the performance of this agreement. This indemnification shall not apply to claims by third parties against the Agency to the extent that the Agency is liable to such third party for such claim without regard to the involvement of OPC. Nothing contained herein waives or is intended to waive any protections that maybe applicable to the Agency under the Governmental Immunity Act, Section 24-10-101, et. Seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and other applicable laws. * * * * ~ .. ,~ We look forward to working with you on implementing a successful credit card payments prngram. Kindly confirm our mutual understanding as set forth in this letter and provide us necessary deposit instructions, by signing the Electronic Deposit Instructions sheet attached. If you have any quE~stions or concerns, please do not hesitate to call me at 203-438-8600. Sincerely, OFFICIAL P~ 771 ~ ~ (CORPORATION By: 7 P F ming Regional Account Manager c~ ,~ ATTEST • "` ` wa ~ '~ ~ f~~~ ~ ~ ~ ~~.~~51 ®o Teak J. Simonton, Clerk '"~"'`~ to the Board of County Commissioners COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS $y: Tom C. Stone, irman 4 ~PPROV ~~ ,,:~ ~ra;~ ~ R ~ ~agie County Attorr;ey'S ~-