HomeMy WebLinkAboutC15-226 Bruber Financial Services, Inc.MERCHANT SERVICES AGREEMENT for SUB - MERCHANTS
In connection with (j
LUjn , 10 1 o(
O ( "Suh- merchant "1 agreement with
PERSOLVENT ( "Provider "), VANTIV, LLC and its designated Member Bank (collectively "Acquirer ") will provide Sub - merchant with certain payment
processing services ( "Services ") in accordance with the terms of this Merchant Services Agreement. In consideration of Sub - merchant's receipt of credit or
debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ( "MasterCard "), VISA U.S.A. Inc. ( "VISA "),
Discover ( "Discover "), and certain similar entities (collectively, "Associations), Sub - merchant is required to (i) enter into a direct relationship with an
entity that is a member of the Associations and (ii) agree to comply with Association rules as they pertain to applicable credit and debit card payments. By
executing this Merchant Services Agreement, Sub - merchant is fulfilling the Association rule of entering into a direct relationship with a Member of the
Associations; however, Acquirer understands that Sub - merchant may have contracted with Provider to obtain certain processing services and that Provider
may have agreed to be responsible to Sub - merchant for all or part of Sub - merchant's obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows
1. Certain Sub - merchant Resnonsibilities.
Sub - merchant agrees to participate, and to cause third parties acting as Sub - merchant's agent ( "Agents "), to participate, in the Associations in compliance
with, and subject to, the by -laws, operating regulations and/or all other rules, policies and procedures of the Associations (collectively "Operating
Regulations "). Sub - merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations ( "Laws "). Without limiting the
foregoing, Sub - merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law,
rule or regulation), VISA, MasterCard, Discover, and/or Other Networks, including but not limited to the Payment Card Industry Data Security Standard,
the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be
published and/or mandated by the Associations. For purposes of this section, Agents include, but are not limited to, Sub - merchant's software providers
and/or equipment providers.
If appropriately indicated in Sub - merchant's agreement with Provider, Sub - merchant may be a limited- acceptance merchant, which means that Sub -
merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display
appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable
law as they may relate to limited acceptance. Sub - merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited
acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub - merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub - merchant to cardholders, and is expressly
prohibited from processing, factoring, laundering, offering, and/or presenting sales transactions which are produced as a result of sales made by any person
or entity other than Sub - merchant, or for purposes related to financing terrorist activities.
Sub - merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the
minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard,
Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal
Reserve). Sub - merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions:
Sub - merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub -
merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 — Schools, Trade or Vocational; and the maximum
transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
2. Sub - merchant Prohibitions.
Sub - merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder's account number, card expiration date,
signature, or any other card account data in plain view when mailed, ii) add any tax to transactions, unless applicable law expressly requires that a Sub -
merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account
number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the
cardholder to make a cash purchase of goods or services from Sub - merchant, v) disburse funds in the form of cash unless Sub - merchant is dispensing funds
in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks,
TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub - merchant), or Sub - merchant is participating in a cash back
service, vi) submit any transaction receipt for a transaction that was previously charged back to the acquirer and subsequently returned to Sub - merchant,
irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an
existing debt, viii) accept a card to collect or refinance an existing debit that has been deemed uncollectable by Sub - merchant, or ix) submit a transaction
that represents collection of a dishonored check. Sub - merchant further agrees that, under no circumstance, will Sub - merchant store cardholder data in
violation of the Laws or the Operating Regulations including but not limited to the storage of track -2 data. Neither Sub - merchant nor its Agent shall retain
or store magnetic -stripe data subsequent to the authorization of a sales transaction.
3. Settlement.
Upon receipt of Sub - merchant's sales data for card transactions through Provider Services, Acquirer will process Sub - merchant's sales data to facilitate the
funds transfer between the various Associations and Sub - merchant. After Acquirer receives credit for such sales data, Acquirer will fund Sub - merchant
through Provider to an account designated by Provider ( "Provider Designated Account "), at Acquirer's sole option, for such card transactions. Sub -
merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub - merchant, and
that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub - merchant. Acquirer will debit the Provider Designated
Account for funds owed to Acquirer as a result of the Services provided hereunder, unless a Sub - merchant -owned account is otherwise designated below.
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Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is
unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub- merchant or Provider.
4. Term and Termination
This Merchant Services Agreement shall be binding upon Sub - merchant upon Sub - merchant's execution. The tern of this Merchant Services Agreement
shall begin, and the terms of the Merchant Services Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this
Merchant Services Agreement by issuing a merchant identification number, and shall be coterminous with Provider's Agreement with Sub - merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Merchant Services Agreement without notice if
(i) Sub - merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub - merchant or Provider
may be a violation of the Operating Regulations, or any applicable state, federal, or local laws, rules, and regulations ( "Laws "), (iii) Acquirer believes that
Sub - merchant has violated or is likely to violate the Operating Regulations or the Laws, or iv) Acquirer is required to do so by any of the Associations.
5. Indemnification and Limits of Liabilitv.
Sub - merchant agrees to provide Acquirer, via a communication with Provider, with written notice, specifically detailing any alleged failure, within thirty
(30) days of the date on which the alleged failure or error first occurred; failure to so provide notice shall be deemed an acceptance by Sub - merchant and a
waiver of any and all rights to dispute such failure or error. Acquirer shall bear no liability and have no obligations to correct any errors resulting from Sub -
merchant's failure to comply with the duties and obligations of the preceding sentence.
Except to the extent prohibited by applicable law, Sub - merchant shall indemnify and hold harmless Acquirer, and its directors, officers, employees,
affiliates, and agents from and against all proceedings, claims, demands, losses, liabilities, damages and expenses resulting from or otherwise arising out of
(i) the Services in this Merchant Services Agreement, (ii) Sub - merchant's or Sub - merchant's employees and agents acts or omissions in connection with
the Services provided pursuant to this Merchant Services Agreement, (iii) any infiltration, hack, breach, or violation of the processing system resulting
from, arising out of, or in any way related to Sub - merchant's ability to use of the services provided herein including but not limited to Sub - merchant's use
of an Agent or any other third party processor or system or (iv) any issue between Sub- merchant and Provider. This indemnification shall survive the
termination of (lie Agreement. Sub - merchant's sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to
the transactions contemplated herein shall be termination of this Merchant Services Agreement. In the event that Sub - merchant has any claim arising in
connection with the Services, rights, and/or obligations defined in this Agreement, Sub - merchant shall proceed against Provider and not against Acquirer,
unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub - merchant with respect to this
Agreement or the Services. Sub - merchant acknowledges Acquirer is only providing this Agreement to assist in Provider's processing relationship with
Sub - merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with
any products or services provided to Sub - merchant by Provider.
6. Miscellaneous
This Merchant Services Agreement is entered into; governed by, and construed pursuant to the laws of your State. This Agreement may not be assigned by
Sub- merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub - merchant and is not
for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Merchant Services Agreement upon notice to Sub - merchant in
accordance with Acquirer's standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or
invalidity of that provision will not affect any of the remaining provisions and this Merchant Services Agreement will be construed as if such provision is
not contained in the Agreement "Member Bank" as used in this Merchant Services Agreement shall mean a member of VISA, MasterCard and /or Discover,
as applicable, that provides sponsorship services in connection with this Merchant Services Agreement. As of the commencement of this Merchant
Services Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located at 38 Fountain Square Plaza, Cincinnati, OH 45263.
The Member Bank is a party to this Merchant Services Agreement. The Member Bank may be changed, and its rights and obligations assigned to another
party by Acquirer at any time without notice to Sub - merchant.
IN WITNESS WHEREOF, this a nt Se gr ent as been executed by Sub - merchant's authorized officer as of the date set forth below.
SUB - MERCHANT:
By:
Name:
Title:
Date:
Address:
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RIDER TO MERCHANT SERVICES AGREEMENT FOR SUB - MERCHANTS
BETWEEN
EAGLE COUNTY, COLORADO
AND
BRUBER FINANCIAL SERVICES, INC. d/b /a PERSOLVENT
This Rider ( "Rider ") is part of that Merchant Services Agreement for Sub - Merchants between
Eagle County, Colorado ( "County ") and Bruber Financial Services, Inc. d/b /a Persolvent
( "Provider ") dated the 20 day of May ,2015 (hereinafter the "Agreement "). County and
Provider shall collectively be referred to as the "Parties ". The Parties agree to be bound by the
terms and conditions set forth herein.
The Payment Provider Agreement for Sub - merchant Terns and Conditions is attached
hereto and incorporated herein as Exhibit A.
2. Provider acknowledges that the Agreement and this Rider are being entered into as a
result of County desiring to use MyGovPay and /or Virtual Pay, products of Tyler
Technologies which are powered by Provider. Merchant Fees (i.e. direct costs levied by
Visa/Mastercard /Discover or other payment card companies for Interchange Fees, Dues,
Assessments and Occurrence Fees) and Use Fees (i.e. Technology Fees, Authorization
Fees and Program /Convenience Fees) are listed together in the table below and represent
the entire amount to be paid for each transaction. The Merchant Fees and Use Fees will
not be modified by Provider without written agreement and approval of County. County
shall not be responsible for fees if the patron paid model is selected.
EnerGods MyGovPay (Online / card - not - present payments) **
* *ACH processing is available for a fee of $20 per month and $0.30 per transaction.
MyGovPay (Online
MyGovPay (Online
Payments
Pa ents
Percenta" e Based Fee
+ Transaction Fee
Option 1:
Government Entity
2.79%
$0.20
Paid
Option 2:
3.29%
T
N/A
Patron Paid
* *ACH processing is available for a fee of $20 per month and $0.30 per transaction.
EnerGolv's VirtualPay (retail card present)
Patron Paid fees will be communicated as "Service Fees" to the cardholder, at the time of
transaction. In the event that the average transaction amount is below $30, Persolvent
reserves the right to apply an additional $0.20 service fee above the quoted rates above.
Notwithstanding anything to the contrary contained in this Agreement, Eagle County shall have
no obligations under this Agreement after, nor shall any payments be made to Provider or
Acquirer in respect of any period after December 31 of any year, without an appropriation
therefor by County in accordance with a budget adopted by the Board of County Commissioners
in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government
Budget Law (C.R.S. 29 -1 -101 et. seq.) and the TABOR Amendment (Colorado Constitution,
Article X, Sec. 20).
4. As used herein, the term undocumented individual will refer to those individuals from foreign
countries not legally within the United States as set forth in C.R.S. 8 -17.5 -101, et. seq. If Provider
or Acquirer has any employees or subcontractors, they shall comply with C.R.S. 8 -17.5 -101, et.
seq., and this Agreement. By execution of this Agreement, Provider and Acquirer certify that
they do not knowingly employ or contract with an undocumented individual who will perform
under this Agreement and that they will participate in the E- verify Program or other Department
of Labor and Employment program ( "Department Program ") in order to confirm the eligibility of
all employees who are newly hired for employment to perform under this Agreement.
a. Provider and Acquirer shall not:
Knowingly employ or contract with an undocumented individual to
perform under this Agreement; or
ii. Enter into a subcontract that fails to certify to Provider and Acquirer that
the subcontractor shall not knowingly employ or contract with an undocumented individual to
perform work under the public contract for services.
b. Provider and Acquirer have confirmed the employment eligibility of all
employees who are newly hired for employment to perform services under this Agreement
through participation in the E -Verify Program or Department Program, as administered by the
VirtualPay (Retail
Virtual Pay (Retail
Payments
Pavmentsl
Percenta a Based Fee
+ Transaction Fee
Opti Dn 1:
Gov rnmenf Entity
2.59%
$0.15
Pat
Opts n 2:
2.99%
N/A
Pa n Paid"
Patron Paid fees will be communicated as "Service Fees" to the cardholder, at the time of
transaction. In the event that the average transaction amount is below $30, Persolvent
reserves the right to apply an additional $0.20 service fee above the quoted rates above.
Notwithstanding anything to the contrary contained in this Agreement, Eagle County shall have
no obligations under this Agreement after, nor shall any payments be made to Provider or
Acquirer in respect of any period after December 31 of any year, without an appropriation
therefor by County in accordance with a budget adopted by the Board of County Commissioners
in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government
Budget Law (C.R.S. 29 -1 -101 et. seq.) and the TABOR Amendment (Colorado Constitution,
Article X, Sec. 20).
4. As used herein, the term undocumented individual will refer to those individuals from foreign
countries not legally within the United States as set forth in C.R.S. 8 -17.5 -101, et. seq. If Provider
or Acquirer has any employees or subcontractors, they shall comply with C.R.S. 8 -17.5 -101, et.
seq., and this Agreement. By execution of this Agreement, Provider and Acquirer certify that
they do not knowingly employ or contract with an undocumented individual who will perform
under this Agreement and that they will participate in the E- verify Program or other Department
of Labor and Employment program ( "Department Program ") in order to confirm the eligibility of
all employees who are newly hired for employment to perform under this Agreement.
a. Provider and Acquirer shall not:
Knowingly employ or contract with an undocumented individual to
perform under this Agreement; or
ii. Enter into a subcontract that fails to certify to Provider and Acquirer that
the subcontractor shall not knowingly employ or contract with an undocumented individual to
perform work under the public contract for services.
b. Provider and Acquirer have confirmed the employment eligibility of all
employees who are newly hired for employment to perform services under this Agreement
through participation in the E -Verify Program or Department Program, as administered by the
United States Department of Homeland Security. Information on applying for the E- verify
program can be found at:
http: / /www.dhs.gov /xprewrot /pro *r, ams /gc 1185221678150.shtm
C. Provider and Acquirer shall not use either the E- verify program or other
Department Program procedures to undertake pre - employment screening of job applicants while
the public contract for services is being performed.
d. If Provider and Acquirer obtain actual knowledge that a subcontractor
performing work under the public contract for services knowingly employs or contracts with an
undocumented individual, they shall be required to:
i. Notify the subcontractor and County within three (3) days that they have
actual knowledge that the subcontractor is employing or contracting with an undocumented
individual; and
ii. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor
does not stop employing or contracting with the undocumented individual; except that Provider
and Acquirer shall not terminate the contract with the subcontractor if during such three (3) days
the subcontractor provides information to establish that the subcontractor has not knowingly
employed or contracted with an undocumented individual.
e. Provider and Acquirer shall comply with any reasonable request by the
Department of Labor and Employment made in the course of an investigation that the department
is undertaking pursuant to its authority established in C.R.S. 8- 17.5 - 102(5).
f. If Provider or Acquirer violates these prohibitions, County may terminate the
Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this
provision of this Agreement, Provider or Acquirer shall be liable for actual and consequential
damages to County as required by law.
g. County will notify the Colorado Secretary of State if Provider or Acquirer
violates this provision of this Agreement and County terminates the Agreement for such breach.
5. The Parties acknowledge and agree that County is prohibited from indemnifying the
Parties under Colorado law and therefor, any indemnification provisions in the
Agreement shall be of no force and effect.
6. The services provided under the Agreement are non - exclusive and the Parties may
contract with other third parties for the same or similar services.
7. Any Party may terminate the Agreement and Rider with thirty (30) days' written notice to
the other Party.
8. The Parties acknowledge and agree that the Agreement and this Rider are being executed
in advance of activation of the Energov My Gov /Virtual Pay system. County shall have
no responsibility for any fees and costs as set forth in the Agreement or this Rider until
such activation occurs.
IN WITNESS WHEREOF, this Rider has been executed on the date set forth below and
is part of the Agreement.
Eagle County, Colorado
By and through it COUNTY MANAGER
By: —
Brent McFall, C my Manager
Date: 0/- / 3
Bruber Financial Services, Inc. d/b /a
Persolvent ( "Provider ")
Its: COO
Date: 5/20/2015
Checklist:
f A-
MyGovPay
Signed "Payment Provider Agreement for Sub-merchant".
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roontoge your- poyrnerit processing,
Signed "Merchant Services Agreement for Sub-merchant".
Docuire tit Description. If ce t-to i it r eclrriretoents i wder the Viso and MosterCard Ooero ting I?eg ula tiol
ore inet (ex, eyceedjrg cerioin volterre thresholdi), Yore ore recwred to have a direct ogreement With ao
Acquirer Thil- d0cunlentfulfilis such recitfirerrient.
Voided check or bank letter.
Per
14A tl;4
Payment Provider Agreement for Sub- merchantl
Software Platft{rm: MyGovPay & V)rtuaJPay
Corporate Na Doing Business As (OBA ) Name
Address Line 1 Address Line 2 (optional)
600 60)0�'W ?O Bo 2)50
City State Zip Code
Phone Numbe (may display on customers'stotements Federal Tax ID Number
10 ► 3 b - i2,1 30 - (o000 -7 0 a
Payment Proc sing Type (check all thatopply):
Fd1n*ne1 Card- present (swipe) VMaH Order / Phone Order
Full Name
Loy+ -1 eft(S
Email Address
Phone Number
I(qlO)32,?) -3601
In order for thl� payment processing account to be activated, a copy of bank proof (voided check or signed bank letter) must be submitted to Persolvent.
(select the types you wish to accept; some Persolvent products may have limited offerings):
Visa/MasterCard/Discover Q ACH (online checks)
'ACH Payment: VeriCheck, Inc, in conjunction with banks (ODFi), perform authorization and prCcessing services for customers originating ACH transactions
through the Persolvent systems. All settlement and deposit functions to Sub- merchant are facilitated and managed directly by Persolvent.
Sub- merchant+epresents ana warrants that it nas reviewed this Payment Provlaer Agreement and its terms and Lonaitipns, andthat it acxnawledges the
information cohtwined within is true, correct and complete. Sub- merchant agrees that in order to process payment transactions, it must sign and agree to the
terms within tHis agreement as well as the MERCHANT PROCESSING AGREEMENT FOR Sub- merchants.
By signing below, Sub- merchant authorizes Persolvent to manage all payment - related activity for this account.
Authorized Si or b -me r
Authorized Sigoer Name (print)
Date
�'a
Authorized Signer Title
Payment Provider Agreement for Sub- merchant
Terms and Conditions
• Persolvent is a Payment Service Provider /Payment Facilitator, registered with Visa and MasterCard and
providing services to Sub - merchant.
• Sub - merchant agrees to process payments only in accordance with the rules of the card associations.
Processing payments outside of the rules would be considered a violation of this contract and subject Sub -
merchant to immediate termination. For complete association rules, visit the card association websites,
(example: http: / /www.visa.com).
• Persolvent may require Sub - merchant, from time to time, to submit signed documentation related to PCI -DSS
(Payment Card Industry — Data Security Standards) compliance. Persolvent requires you to maintain PCI -DSS
compliance in order to continue processing payments and you agree to submit such documentation as
required. Merchants who process card - present (swipe) or key entered (by staff) transactions may be subject
to additional requirements.
• Sub - merchant agrees not to use any 3rd party products that are not PCI -DSS compliant.
• Sub- merchant may not improperly store or disclose cardholder data, whether in paper or electronic form.
• If Sub - merchant desires to process payments through a method other than what is described within the
"Payment Processing Type" above, Sub- merchant agrees to contact Persolvent for approval before submitting
any transactions through the desired method.
• Persolvent may enforce any of Sub - merchant's responsibilities as provided in "MERCHANT SERVICES
AGREEMENT for Sub - merchants" entered into between Sub - merchant and Vantiv, LLC. In the event Sub -
merchant violates any of such responsibilities, Sub- merchant agrees to indemnify Persolvent to the extent
permitted by applicable law for any damages caused to Persolvent for such violation.
• Sub - merchant agrees to reacquire and pay Persolvent the amount of any return, chargeback, compliance case,
any other Association action, or if the extension of credit for merchandise or services was in violation of law or
the rules of any governmental agency, federal, state, local or otherwise, or if Persolvent has not received
payment for any sales transaction.
• Persolvent reserves the right to fund up to seven days after transaction date. Persolvent, at its sole discretion,
may hold funding due to risk and investigations.
• Persolvent will fund Sub - merchant sales net of all fees established within this Agreement unless otherwise
agreed upon with Sub- merchant.
• Either party may terminate this agreement with 30 -days' written notice to the other party.
2015.03 Persolvent Payment Provider Agreement for Sub - merchant I Terms and Conditions
May 26, 2015
Amanda Bay, PMP
IT Project Manager
Eagle County Government
PO Box 850
500 Broadway
Eagle, CO 81631
To whom it my concern:
Please accept this letter as verification that the Eagle County Government is a client in good
standing with Wells Fargo & Co. and maintains the following account with the bank.
Account Number Routing Number
2755552979 102000076
Sincerely,
Beth Chabot
Vice President - Relationship Manager
Wells Fargo & Co.
245 Chapel Place
Avon, Co. 81632
