HomeMy WebLinkAboutC12-335 Point and Pay E-Payment Agreement POINT AND PAY
E- PAYMENT SERVICES AGREEMENT Field Code Changed
Parties:
Point and Pay LLC ( "PNP ") [Eagle County CO]( "Client ")
A subsidiary of NAB, doing business in Delaware
Terms
SECTION 1 &PAYMENT SERVICES 1.4 Service Promotion
Client will use reasonable efforts to promote the Services and
build awareness of the Services with its customers through
1.1 Access to Payment Modules
1.1.1 Pursuant to this E- Payment Services Agreement (this vario:s media indun but not limited to:
"Agreement "), PNP grants Client a limited, non - exclusive, non-
Print Bill inserts, counter displays, and
transferable and terminable license for the duration of the Term announcements in Client's newsletter
•
to use the electronic payment services (the "Services") and to Home page announcements with an easily
payment modules (each, a "Module ") chosen in the attached accessible, one click link to payments page.
client application ( "Client Application ") to enable Client's 1.5 Trademark License
customers ( "Customers ") to make payments to Client using a
Payment Device. "Payment Device" means the payment PNP grants Client a limited, non - exclusive, non - transferable
type(s) chosen by Client on the Client Application. A description license to use the PNP trademarks, service marks and logos
of all Modules, Services, training and support offered by PNP is provided by PNP to Client (the "Trademarks ") solely in
attached as Exhibit A (the "Services Description "). connection with Client's promotion of the Services to
Customers. Client shall not alter the Trademarks nor use the
Trademarks in any way which is disparaging, dilutive or
1.1.2 At the time of Client's execution of this Agreement, Client otherwise adversely affects the reputation of PNP.
shall also return the completed Client Application to PNP.
Subject to the terms and conditions of this Agreement, the 1.6 Client Logo License
Services may be also be used by the affiliated offices, bureaus, Client grants PNP a limited, non - exclusive, non - transferable
agencies or departments of Client ( "Affiliates "). Each Affiliate license to use its applicable logos, copyrighted works and
shall complete a Client Application prior to commencement of trademarks ( "Client Marks ") solely in connection with the
the Services. Services provided to Client. Client shall provide the Client
Marks to PNP for use with the Services. Client represents that it
1.2 Client Representatives has all intellectual property rights required for Client's and PNP's
PNP will provide Client's authorized representatives with a logon use of Client Marks,
and password to access the Counter Module. Client shall be
solely responsible for maintaining the confidentiality and security
of the logons and passwords provided by PNP. Client will cause
each of its representatives to change the initial password, keep
the passwords confidential, refrain from sharing passwords
and /or logon information with any unauthorized user, and use no
other password to access the Counter Module. PNP shall be
entitled to rely on any communications it receives under Client's
passwords, logon information, andior account number as having
been sent by Client, without conducting any further checks as to
the identity of the user of such information. PNP will not be
responsible for the operability or functionality of any of Client's
computer equipment, system, browser or Internet connectivity.
1.3 Payment Device Transactions
All Payment Device transactions using the Services will be
processed through a secured link. The parties to each Payment
Device transaction will be the Customer cardholder, the Client
and PNP.
PNP E- Payment Services Agreement v2.0 rev 071008 1
SECTION 2 COMPENSATION (including rights of attribution and rights of integrity), (c) all trade
secrets, inventions, discoveries, devices, processes, designs,
2.1 Services Transaction Fee techniques, ideas, know -how and other confidential or
PNP will charge the transaction fee to use the Services set forth proprietary information, whether or not reduced to practice, (d)
on the Client Application. If Services fees are charged directly all domestic and foreign patents and the registrations,
to Customers by PNP, Customers will receive a notice each applications, renewals, extensions and continuations (in whole
time they use the Services stating that the Services are provided or in part) thereof, and (e) all goodwill associated with any of the
by PNP and that a convenience fee is charged for use of the foregoing and (f) all rights and causes of action for infringement,
Services. PNP may change the amount of such fee by notifying misappropriation, misuse, dilution or unfair trade practices
Client of such new amount at least thirty (30) days prior to such associated with (a) through (d) above.
change.
3.2 Ownership and Use of PNP Materials
2.2 Activation Fee Any software developed by or on behalf of PNP for use in
If applicable, Client shall pay the one -time Activation Fee set connection with the Services remains the exclusive property of
forth on the Client Application. PNP. Client will not sell, transfer, barter, trade, license, modify
or copy any such software. Web pages accessible through use
2.3 Charge -backs and Returns of the Services are the copyrighted intellectual property of PNP
Unless otherwise specified in the Client Application, PNP will set and may not be copied in whole or part by anyone. Any training
off (a) the amount of any charge - backs, refusals to pay and materials (including, but not limited to, webinars and manuals)
returns from any amounts otherwise owing by PNP to Client and provided to Client by PNP shall remain the exclusive property of
(b) a transaction handling fee for charge -backs and non- PNP. PNP grants Client and Client's personnel a limited, non -
sufficient funds (NSF) as specified in the Client Application exclusive, non - transferrable license to use and to make copies
of the training materials with its personnel solely in connection
2.4 ACH Debit of Fees with the Services. Training materials may not be modified by
Client hereby authorizes PNP, and any subsidiary or successor Client or its personnel or disclosed to any third party, induding
thereof, solely with respect to amounts due pursuant to this Client's end -user customers. Client shall ensure all personnel
Agreement and any subsequent agreements between Client shall complete and review all training materials prior to using the
and PNP, including but not limited to service fees, transaction Services.
fees, charge -backs and returns as set forth in Sections 2.1 and
2.3 of this Agreement, to initiate Automated Clearing House 3.3 Reverse Engineering
("ACH ") Authorizations to credit and debit Client's bank account Client will not reverse engineer, reverse assemble, decompile or
as set forth on the Banking Authorization Form attached hereto disassemble any of PNP's intellectual property, nor will Client
as Exhibit B or otherwise provided by Client. Client attempt to do so or enable any third party to do so or otherwise
acknowledges that it will be subject to a $25 reject fee if items attempt to discover any source code, modify the Service in any
are returned for insufficient funds. manner or form, or use unauthorized modified versions of the
Service, including (without limitation) for the purpose of building
SECTION 3 INTELLECTUAL PROPERTY; a similar or competitive product or service or for the purpose of
CONFIDENTIALITY obtaining unauthorized access to the Service. Client is expressly
prohibited from sublicensing use of the Service to any third
3.1 No Transfer or License parties. If Client becomes aware that any person has engaged
Except for the rights expressly granted to Client in this or is likely to have engaged in any of the activities described in
Agreement, no PNP Intellectual Property Right is transferred or this Section 3.3, Client will promptly notify PNP.
licensed to Client pursuant to this Agreement, by implication or
otherwise. PNP reserves and retains all rights, title and
interests in and to the PNP Intellectual Property Rights, and all
copies, revisions, modifications, updates, and upgrades thereof.
Client agrees not to remove, alter or destroy any copyright,
patent notice, trademark or other proprietary markings or
confidential legends placed on or within any portion of the PNP
Intellectual Property Rights. For purposes of this Agreement,
"Intellectual Property Rights" means all the intellectual
property, industrial and other proprietary rights, protected or
protectable, under the laws of the United States, any foreign
country, or any political subdivision thereof, including (a) all
trade names, trade dress, trademarks, service marks, logos,
brand names and other identifiers, (b) copyrights, moral rights
PNP E- Payment Services Agreement v2.0 rev 071008 2
3.4 Confidential Information Client will provide PNP with prompt written notice so that PNP
3.4.1 Any Confidential Information provided by PNP to Client may seek a protective order or other appropriate remedy or
pursuant to this Agreement will remain the exclusive property of waive compliance with the confidentiality provisions of this
PNP. Client will disclose such Confidential Information only to Agreement.
those of its representatives and employees who need to know
such Confidential Information for purposes of performing this 3.6 Failure to Comply
Agreement, who are informed of the confidential nature of the If Client fails to comply with any of its obligations pursuant to this
Confidential Information and who agree, for the benefit of PNP, Section 3, PNP will have the right to immediately terminate this
to be bound by the terms of confidentiality in this Agreement. Agreement by providing written notice of such termination to
Client will, and will cause each of its representatives and Client.
employees, to keep confidential and not to disclose in any
manner whatsoever any Confidential Information provided by 3.7 Survival
PNP pursuant to this Agreement, and not to use such The rights and obligations of the parties provided for in this
Confidential Information, in whole or in part, directly or indirectly, Section 3 will survive any expiration or termination of this
for any purpose at any time other than for the purposes Agreement or its term.
contemplated by this Agreement. Notwithstanding the
foregoing, if Client is a dty, county, township or similar entity, or SECTION 4 WARRANTIES; DISCLAIMER
government agency or department thereof, Client may disclose
Confidential Information as necessary to comply with applicable
public records laws. 4.1 Warranties
4.1.1 Each party represents and warrants that it has the full
3.4.2 For purposes of this Agreement, "Confidential legal right, authority and power to enter into this Agreement and
Information" means all nonpublic or proprietary information of perform its obligations hereunder.
PNP, including proprietary, technical, development, marketing, 4.1.2 PNP represents and warrants that the Services will be
sales, operating, performances, cost, know -how, business and provided in a professional, workman -like manner consistent with
process information, computer programs and programming industry standards.
techniques, security features (including, without limitation, multi-
level access and log -in features, audit trail setup, interfaces 4.2 Disclaimers
between the Counter Module and the Internet or IVR Modules), 4.2.1 PNP does not represent that Client's or its Customers use
all record bearing media containing or disclosing such of the Services will be uninterrupted or error -free, or that the
information and techniques, and anything marked confidential, system that makes the Services available will be free of viruses
that is disclosed by PNP to Client pursuant to this Agreement. or other harmful components resulting from the Internet or any
Confidential Information also includes the terms and conditions third party providers or products outside the control of PNP.
of this Agreement.
3.5 Exclusions 4.2.2 EXCEPT FOR THE WARRANTIES EXPRESSLY SET
FORTH IN THIS SECTION 4, PNP DISCLAIMS ALL
The term Confidential Information will not apply to information WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
that (a) is or becomes generally available to the public other OTHERWISE, INCLUDING, WITHOUT LIMITATION,
than as a result of a disclosure by Client in breach of this WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
Agreement; (b) was within Client's possession prior to its PARTICULAR PURPOSE, AND NON- INFRINGEMENT. THE
disclosure by or on behalf of PNP, provided that the discloser of SERVICE IS PROVIDED TO CLIENT ON AN "AS IS" AND "AS
such information was not known by Client to be bound by a AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY.
confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, PNP with respect to
such information; (c) becomes available to Client on a non -
confidential basis from a source other than PNP, provided that
such source is not known by Client to be bound by a
confidentiality agreement with, or other contractual, legal or
fiduciary obligation of confidentiality to, PNP with respect to
such information; or (d) is developed independently by Client, as
demonstrated by the written records of Client, without use of
such information. The confidentiality obligations of Client
pursuant to this Agreement will not apply to any Confidential
Information of PNP that Client is legally compelled to disclose.
In the event Client becomes legally compelled to disdose any
Confidential Information provided pursuant to this Agreement,
PNP E- Payment Services Agreement v2.0 rev 071008 3
SECTION 5 LIMITATIONS OF LIABILITY AND SECTION 8 TERM AND TERMINATION
OBLIGATION
8.1 Term
5.1 Damages and Liability Limit The initial term of this Agreement will commence on the
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE Effective Date and will end on the first (1st) anniversary of the
OTHER PARTY OR ANY THIRD PARTY IN CONNECTION Effective Date (the "Initial Term "). This Agreement will
WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, automatically renew for successive one (1) -year terms (each, a
CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR "Renewal Term," and the Initial Term and any Renewal Term
PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST may be referred to as a "Term "). The term of this Agreement
PROFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED will terminate at the end of the Initial Term or any subsequent
OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY Renewal Term if either party provides written notice of such
RELEASES THE OTHER PARTY AND ALL OF THE OTHER termination to the other party at least sixty (60) days prior to the
PARTY'S AFFILIATES, EMPLOYEES, AND AGENTS FROM expiration of the applicable Term. After the Initial Term, either
ANY SUCH DAMAGES. THE FOREGOING EXCLUSIONS party may terminate this agreement for any reason upon ninety
AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT (90) days written notice of such termination to the other party.
PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY
FAILS ITS ESSENTIAL PURPOSE. 8.2 In the Event of Breach; Effect on Affiliates
8.2.1 Subject to the opportunity to cure set forth below, either
5.2 Refusals of Payment party may terminate this Agreement upon sixty (60) days written
PNP will not be liable for charge -backs or other refusals of notice to the other party in the event of a material, uncured
payment initiated by any Customer. All such charge -backs and breach of any provision of this Agreement by the other party.
other refusals of payment will be refunded by PNP to the Such notice by the complaining party shall expressly state all of
Customer and Client will mark and otherwise treat the related the reasons for the claimed breach in sufficient detail so as to
Customer account as "unpaid." provide the alleged breaching party a meaningful opportunity to
cure such alleged breach ( "Notice ").
5.3 Errors and Omissions
PNP will not be liable for any errors or omissions in data 8.2.2 Following receipt of Notice, the alleged breaching party
provided by Client or Customers. Client will be responsible for shall have sixty (60) days to cure such alleged breach. Upon
the accuracy of data provided to PNP for use in providing the termination or expiration of this Agreement, Client shall have no
Services. rights to continue use of the Service or the Modules. Expiration
or termination of the Agreement by Client or PNP shall also
5.4 Bank Actions terminate the Affiliates' rights under the Agreement unless
PNP will not be liable for any errors, omissions or delays otherwise agreed by the parties in writing. PNP may terminate
attributable to the acts or omissions of any bank or other third the Agreement solely with respect to an individual Affiliate
party involved in the processing of any Payment Device without affecting the rights and obligations of Client and other
payment. Affiliates under the Agreement.
SECTION 6 CARDHOLDER DATA SECURITY 8.3 Modification to or Discontinuation of the Service
To the extent applicable, each of the parties shall be required to PNP reserves the right at any time and from time to time to
comply at all times with the Payment Card Industry Data modify, temporarily or permanently, the Service (or any part
Security Standard Program ( "PCI -DSS ") in effect and as may be thereof). In addition, PNP will have the right to discontinue
amended from time to time during the term of the Agreement. accepting any Payment Device by providing not less than ten
The current PCI -DSS specifications are available on the PCI (10) days' written notice to Client. In the event that PNP
Security Standards Council website at modifies the Service in a manner which removes or disables a
https : / /www.pcisecuritystandards.org. feature or functionality on which Client materially relies, PNP, at
Client's request, shall use commercially reasonable efforts to
SECTION 7 EXCLUSIVITY substantially restore such functionality to Client. In the event that
Client agrees that PNP will be the exclusive provider of fee- PNP is unable to substantially restore such functionality within
based electronic payment services for the Eagle County fourteen (14) (60) days, Client shall have the right to terminate
Treasurer's collection of taxes and that Client will not procure the Agreement. Client acknowledges that PNP reserves the
similar such services from any other party for such purpose. right to discontinue offering the Service and any support at the
conclusion of Client's then - current Term. Client agrees that PNP
shall not be liable to Client nor to any third party for any
modification of the Service as described in this Section.
PNP E- Payment Services Agreement v2.0 rev 071008 4
•
SECTION 9 PAYMENT DEVICE TRANSACTION MISCELLANEOUS
DEPOSITS The headings of sections and subsections of this Agreement are
The exact amount of each approved Payment Device for convenience of reference only and will not be construed to
transaction will be electronically deposited into the Client bank alter the meaning of any provision of this Agreement. PNP is an
account identified on the Client Application. PNP shall initiate independent contractor and nothing in this Agreement will be
such deposits as specified on the attached Client Application. deemed to create any agency, employee - employer relationship,
PNP will provide Clients authorized employees with access to partnership, franchise or joint venture between the parties.
PNP's online transaction reports for reconciliation purposes. Except as otherwise specifically provided in this Agreement,
neither party will have, or represent that it has the right, power
SECTION 10 FORCE MAJEURE or authority to bind, contract or commit the other party or to
PNP will not be responsible for its failure to perform under this create any obligation on behalf of the other party. Each of the
Agreement due to causes beyond its reasonable control, parties will have any and all rights and remedies available to
including acts of God, wars, riots, revolutions, acts of civil or them under all applicable laws. The remedies provided for in
military authorities, terrorism, fires, floods, sabotage, nuclear this Agreement will be deemed to be non - exclusive and in
incidents, earthquakes, storms, or epidemics. If the provision of addition to any other available remedy at law or in equity. All
Services under this Agreement is delayed by such an event or rights and remedies are cumulative and may be exercised
condition, PNP will promptly notify Client thereof. PNP will use singularly or concurrently. Client may not assign or transfer any
commercially reasonable efforts to overcome any such cause of its rights or delegate any of its obligations under this
for delay as soon as is reasonably practicable. Agreement to any third party, by operation of law or otherwise,
without the prior written consent of PNP. Any attempted
SECTION 11 GOVERNING LAW assignment or transfer in violation of the foregoing will be void.
This Agreement will be interpreted, construed and enforced in This Agreement will be binding upon, and inure to the benefit of,
all respects in accordance with the laws of the State of Colorado the successors and permitted assigns of the parties. Client
without reference to its conflicts of law principles. shall comply with all applicable laws, rules, treaties, and
regulations in its performance of this Agreement. If any
SECTION 12 NOTICES provision of this Agreement is held by a court of law to be illegal,
All notices or other communications required or permitted by this invalid or unenforceable, the remaining provisions of this
Agreement must be in writing and will be deemed to have been Agreement will not be affected and the illegal, invalid, or
duly given when delivered personally to the party for whom such unenforceable provision will be deemed modified such that it the
notice was intended, or upon actual receipt if sent by facsimile intention of the parties to the fullest extent possible. No
or delivered by a nationally recognized overnight delivery amendment or modification of this Agreement will be effective
service, or at the expiration of the third day after the date of unless it is in writing and executed by both of the parties.
deposit if deposited in the United States mail, postage pre -paid, Nothing contained in this Agreement establishes, creates, or is
certified or registered, retum receipt requested, to the respective intended to or will be construed to establish or create, any right
parties at: in or obligation to any third party. This Agreement, the Exhibit(s)
and the Client Application set forth the entire agreement and
If to Client: See Merchant Application understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous
If to PNP: Point and Pay LLC
understandings and agreements, whether written or oral,
110 State St. E, Suite D between the parties with respect to such subject matter
Oldsmar, FL 34677
The p. • :. have I ex:, * this Agreement as of the date of the last signature below (the "Effective Date ").
• .in k � d Pay LLC [Eagle County CO,
• : �` t� _ .. � 4 By: �/J .7
NameKtN i fv C3, Nfv4\\ Name: ,l /A.
Title: Es rQ 76 ✓.1 r Title: lL - - a'1"----
Date: ' D \ 1 ` Z-- D 11_ Date: / a /° / 2.----
PNP E- Payment Services Agreement v2.0 rev 071008 5
Exhibit A
Services Description
The following is a description of all Services and Modules offered by PNP. PNP shall provide the Services to Client and its end -user
customers via the specific Modules and Payment Devices chosen by Client in the Client Application. Applicable fees, if any, for Client's
elections are set forth on the Client Application. The Services indude support and training outlined below at no additional charge to Client.
Service Modules
• Counter Module. The Counter Module allows customers to make payments to Client in a face-to-face environment or over the
phone using a Payment Device. PNP will issue unique confirmation numbers to customers who have completed a payment
transaction using the Counter Module. The Counter Module also enables Client's staff to access reports via the web. The
Counter Module is required to access the PNP Services. The Counter Module may be used in conjunction with or independently
of point -of -sale (POS) terminals.
• Web Module. THE WEB MODULE MUST BE CHOSEN TOGETHER WITH THE COUNTER MODULE. The Web Module
allows customers to make payments to Clients online using a Payment Device via a secure website hosted by PNP. Customers
who elect to make payments via the Internet can follow a link from the Client website to the Client - branded, PNP - hosted web
pages to submit a payment. PNP will issue unique confirmation numbers to customers who have completed a payment
transaction using the Web Module. PNP shall create the Client- branded, PNP- hosted web pages at no additional charge. Client
may elect bill presentment and account validation functionality for the one -time set-up fee set forth on the Client Application
under "Data File Integration."
• Interactive Voice Response (IVR) Module. THE IVR MODULE MUST BE CHOSEN TOGETHER WITH THE COUNTER
MODULE. The IVR Module allows Customers to make payments to Clients over the phone using a Payment Device. The
Customer calls a toll -free phone number provided and managed by PNP to access the Client branded IVR. The IVR system
recognizes Customer instructions through making a payment; the phone keypad is used to enter Payment Device numbers. The
IVR system is configured and tested by PNP. PNP will issue unique confirmation numbers to customers who have completed a
payment transaction using the IVR Module. Election of the IVR Module includes a Client - branded IVR environment and, if
applicable, Client shall pay the one -time IVR set-up fee for the IVR Module set forth on the Client Application. In addition, Client
may elect to have bill presentment and account validation functionality enabled through the IVR for the one -time set -up fee on
the Client Application under "Data File Integration."
Customer Payment Devices
Each of the Modules can provide the Customer with the ability to pay by Credit Card, Debit Card and/or Electronic Check.
Training
PNP shall provide instruction manuals and up to four (4) hours of webinar training to Client and Client personnel in connection with the
Modules chosen by Client.
Support
The following support shall be provided to Client and Client's customers at no additional charge during the term of the Services:
• First Level Support. PNP shall provide first-level support to Customers via PNP's call center. Customer service representatives
shall be available 8 a.m. EST to 10 p.m. EST M -F, to handle customer inquiries.
• Second Level Support. PNP shall provide first -level support to Client via telephone. Second level support shall be available
Monday through Friday during normal business hours.
Support availability shall be exdusive of downtime due to scheduled maintenance or events out of PNP's control. Support for the Products
may be modified, suspended or terminated in PNP's sole discretion upon prior written notice.
PNP E- Payment Services Agreement v2.0 rev 071008 6
